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Full text of "U.S government information policies and practices--problems of Congress in obtaining information from the executive branch. Hearings before a subcommittee of the Committee on Government Operations, House of Representatives, Ninety-second Congress, Second Session, May 12, 15, 16, 23, 24, 31: and June 1, 1972"

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U.S. GOVERNMENT INFORMATION POLICIES AND 
PRACTICES— PROBLEMS OF CONGRESS IN OBTAIN- 
ING INFORMATION FROM THE EXECUTIVE BRANCH 

(PART 8) 



HEARINGS 

BEFORE A 

SUBCOMMITTEE OF THE 

COMMITTEE ON 

GOVERNMENT OPERATIONS 

HOUSE OF REPRESENTATIVES 

XINETY-SECOND CONGRESS 

SECOND SESSION 



MAY 12, 15, 16, 23, 24, 31 ; AND JUNE 1, 1972 



Printed for the use of the Committee on Government Operations 




yy. &7? 

ft** 



U.S. GOVERNMENT PRINTING OFFICE 
76-253 WASHINGTON : 1972 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C., 20402 Price $1.50 



COMMITTEE ON GOVERNMENT OPERATIONS 
CHET HOLIFIELD, California, Chairman 



JACK BROOKS, Texas 
L. H. FOUNTAIN, North Carolina 
ROBERT E. JONES, Alabama 
EDWARD A. GARMATZ, Maryland 
JOHN E. MOSS, California 
DANTE B. PASCELL, Florida 
HENRY S. REUSS, Wisconsin 
JOHN IS. MONAGAN, Connecticut 



FLORENCE P. DWYER, New Jersey 
FRANK HORTON, New York 
JOHN N. ERLENBORN, Illinois 
JOHN W. WYDLER, New York 
CLARENCE J. BROWN, Ohio 
GUY VANDER JAGT, Michigan 
GILBERT GUDE, Maryland 
PAUL N. McCLOSKEY, Jr., California 



TORBERT H. MACDONALD, Massachusetts JOHN H. BUCHANAN, Jr., Alabama 



WILLIAM S. MOORHEAD, Pennsylvania 

CORNELIUS E. GALLAGHER, New Jersey 

WM. J. RANDALL, Missouri 

BENJAMIN S. ROSENTHAL, New York 

JIM WRIGHT, Texas 

FERNAND J. ST GERMAIN, Rhode Island 

JOHN C. CULVER, Iowa 

FLOYD V. HICKS, Washington 

GEORGE W. COLLINS, Illinois 

DON FUQUA, Florida 

JOHN CONYERS. Jr., Michigan 

BILL ALEXANDER, Arkansas 

BELLA S. ABZUG, New York 



SAM STEIGER, Arizona 

GARRY BROWN, Michigan 

BARRY M. GOLDWATER, Jr., California 

CHARLES THONE, Nebraska 

H. JOHN HEINZ III, Pennsylvania 

RICHARD W. MALLARY, Vermont 



Herbert Roback, Staff Director 

Christine Ray Davis, Staff Administrator 

James A. Lanigan, General Counsel 

Miles Q. Romney, Associate General Counsel 

J. P. Carlson, Minority Counsel 

William H. Copenhaver, Minority Professional Staff 



Foreign Operations and Government Information Subcommittee 
WILLIAM S. MOORHEAD, Pennsylvania, Chairman 
JOHN E. MOSS, California JOHN N. ERLENBORN, Illinois 

TORBERT H. MACDONALD, Massachusetts FRANK HORTON, New York 
JIM WRIGHT, Texas PAUL N. McCLOSKEY, Jr., California 

JOHN CONYERS, Jr., Michigan GILBERT GUDE, Maryland 

BILL ALEXANDER, Arkansas 

EX OFFICIO 

CHET HOLIFIELD, California FLORENCE P. DWYER, New Jersey 

William G. Phillips, Staff Director 

Norman G. Cornish, Deputy Staff Director 

Harold F. Whittington, Staff Consultant 

Martha M. Doty, Clerk 

Mary E. Blanton, Secretary 



(II) 



CONTENTS 



Page 

Part 1 1-275 

Part 2 2 77 - 77 ? 

Part 3 779-1003 

p ar t, 4 1005-1373 

Part 5_"-"_"-_ 1375-1817 

Parte 1819-2282 

p art 7 2283-2937 

Part 8_____ 2939-3312 

Hearings held on — 

May 12 2939 

May 15 2995 

May 16 3041 

May 23 3115 

May 24 3153 

May 31 3197 

June 1 3245 

Statement of — 

Ablard, Charles D., General Counsel and Congressional Liaison, U.S. 
Information Agency; accompanied by Lawrence Hall, Chief of 

Research Service, USIA___ 3236 

Abshire, David M., Assistant Secretary of State for Congressional 
Relations, Department of State; accompanied by Carl Salans, 

Deputy Legal Adviser 3197 

Berger, Prof. Raoul 3116 

Johnson, Rady A., Assistant to the Secretary of Defense for Legisla- 
tive Affairs; accompanied by J. Fred Buzhardt, General Counsel of 

the Department of Defense 3154, 3172 

Keller, Robert F., Deputy Comptroller General of the United States; 
accompanied by Oye V. Stovall, Director, International Division; 
James A. Duff, Associate Director, International Division; and 
James E. Masterson, Senior Attorney, Office of the General 

Counsel 3042,3102 

La Rocque, Rear Adm. Gene R. (retired), Executive Director, Center 

for Defense Information 3186 

Mink, Hon. Patsy T., a Representative in Congress from the State 

of Hawaii 3092 

Pitkiel, J. A., Department of Defense 3162 

Quindlen, E. J., Assistant Director for Government Preparedness, 
Office of Emergency Preparedness; accompanied by John W. 

Nocita 2940 

Reid, Hon. Ogden R., a Representative in Congress from the State 

of New York 2997 

Walters, Johnnie M., Commissioner, Internal Revenue Service; 
accompanied bv Raymond F. Harless, Deputy Commissioner; 
Lee H. Henkel, Jr., Acting Chief Counsel; Donald O. Yirdin, Chief, 
Disclosure Staff, Office of Assistant Commissioner (Compliance) ; 
and Francis I. Geibel, Acting Assistant Commissioner (Inspec- 
tion) 3169,3246 

Wolff, Hon. Lester L., a Representative in Congress from the State 

of New York 3009 

Letters, statements, etc., submitted for the record by — 

Ablard, Charles D., General Counsel and Congressional Liaison, 

U.S. Information Agency, statement 323S-3240 

Abshire, David M_, Assistant Secretary of State for Congressional 
Relations, Department of State: 

Additional information requested by the subcommittee, re 

Cambodian field submission document 3234 

Excerpt from an address delivered in 1956 by Attorney General 

Rogers 3204 

(Hi) 



IV 

Letters, statements, etc., submitted for the record by — Continued 
Abshire. David M. — Continued 

Reply to subcommittee question on why a diplomatic pouch P a se 

personally addressed to Congressman Wolff was opened by 

the State' Department *_ 3230 

Statement 3206-32 12 

Statement on volume of information provided to Congress by 

the Department of State 3203 

Summary tables of emplovment in the Department of State, 

March 31, 1972 3213-3218 

Abzug, Hon. Bella S., a Representative in Congress from the State 

of New York: Statement with attachments 3142-3151 

Aspin, Hon. Les, a Representative in Congress from the State of 

Wisconsin, statement 3 157-31. 58 

Buzhardt, J. Fred, General Counsel, Department of Defense: 

Comments on the SCOPE document 3166-3169 

Gude, Hon. Gilbert, a Representative in Congress from the State 
of Maryland: Exchange of correspondence reprinted from the 
Congressional Record of January 26, 1972, between Senator Pell 

and DOD requesting weather modifications information 3174-3177 

Horton, Hon. Frank, a Representative in Congress from the State 
of New York: Letter, dated May 25, 1972, from Hon. Elmer B. 
Staats, Comptroller General of the United States, to Chairman 
Moorhead, enclosing letter dated May 12, 1972, from Eugene T. 
Rossides, Assistant Secretary, Department of the Treasury, re 
denying GAO access to information with respect to the Bureau 

of Customs 3290-3291 

Johnson, Rady A., Assistant to the Secretary of Defense for Legis- 
lative Affairs: 

Questions submitted by the subcommittee and response by 

DOD 3184-1385 

Statement submitted on comments by Congressman Les 
Aspin on 2 R. & D. sonar programs and memorandum 
opinion and order of district court not to release Peers 

Commission report 3160-3 102 

Keller, Robert F., Deputy Comptroller General of the United 
States : 

Compilation of access-to-records problems encountered by 
GAO in making audits of foreign operations and assistance 

programs 3045-3070 

GAO access to records problem at the Internal Revenue 

Service 3087-3091 

Summary of the pertinent statute which governs the respon- 
sibilities of the GAO in the areas where it is required to 

carry out investigations and audits 3043-3044 

Mink, Hon. Patsy T., a Representative inCongress from the State 
of Hawaii: 

Article from the Evening Star of Julv 26, 1971, entitled 

"Agencies' Views Differ on Amchitka Test Blast" 3092-3093 

Copy of court of appeals opinion in Mink v. Environmental 

Protection Agency case 3094-3097 

Letter, dated July 30, 1971, from John W. Dean III, Counsel 
to the President, the White House, re reports described in 

Star article not available to Members of Congress 3093 

Moorhead, Hon. William S., a Representative in Congress from 
the State of Pennsylvania, and chairman, Foreign Operations 
and Government Information Subcommittee: 

Biographical data on Rear Adm. Gene R. La Rocque (re- 
tired) 3185 

Letter, dated May 16, 1972, to Johnnie M. Walters, Com- 
missioner, Internal Revenue Service, re subcommittee's 

request to receive testimony from IRS 3170 

Letter, dated March 27, 1972, to all Representatives and 
Senators, with responses from Representatives James R. 

Mann and Abner Mikva and Senator Vance Hartke 3033-3040 

Library of Congress Congressional Research Service study on 

the development of the White House staff 3019-3024 



Letters, statements, ete., submitted for the record by — Continued 

Moorhead, Hon. William S. — Continued Page 

Sundry correspondence and material relative to the hearings. . 2979-2994 

Text of sections 040(5 and 8022 of the Internal Revenue Code. 3100-3107 
Quindlen, E. J., Assistant Director for Government Prepared- 
ness, Office of Emergency Preparedness: 

Background of National Defense Executive Reservists as of 
May 1972 and list showing National Defense Executive 
Reservist training 2966-2967 

Copy of standby voluntary censorship code for all media of 

publication or broadcast, dated September 1963 2953-29.56 

Description of the operation of the emergencv broadcast 

system 2976-2977 

Letter, dated May 19, 1972, from Elmer F. Bennett, General 
Counsel, Office of Emergency Preparedness, re wartime 
information security program 2971 

Letter from Chairman Moorhead, dated June 26, 1972, to 
George A. Lincoln, Director, Office of Emergency Pre- 
paredness, re requesting additional information on role of 
OEP under its agreement with DOD, description of various 
training programs, and date unit commenced its operations, 
with response dated July 7, 1972 2979-2994 

List of executive reservists in wartime information security 

program as of September 1 963 2953 

Office of Censorship basic plan 2943-2953 

Working draft of proposed draft emergency legislative 

proposal 2957-2958 

Working draft of proposed draft Executive order establishing 
the Office of Wartime Information Security and providing 
for interception, examination, and control of international 

communications 2958-2959 

Reid, Hon. Ogden R., a Representative in Congress from the 
State of New York : 

Letters to and from Hon. Elmer B. Staats, Comptroller 
General of the United States, re problems frequently en- 
countered in endeavoring to obtain information from the 
executive branch of the Government 3016-3018 

Statement 2999-3003 

Walters, Johnnie M., Commissioner, Internal Revenue Service: 

Exhibit A. — Copy of the chief counsel's opinion dated 
May 30, 1972, concerning the lack of legal authority of 
the General Accounting Office 3256-3266 

Exhibit B. — Letters, dated January 13, 1971, from Lau- 
rence N. Woodworth, Joint Committee on Internal Reve- 
nue Taxation, to Comprtoller General, General Accounting 
Office, and Commissioner, Internal Revenue Service, re 
GAO to act as agent for joint committee in performing 
certain reviews of the operations, policies, and procedures 
of the IRS, and the manner in which it will proceed 3266-3268 

Letter, dated June 5, 1972, to Chairman Moorhead, re how 
many refund cases of $100,000 or more were reviewed by 
the Joint Committee on Internal Revenue Taxation 3289 

Statement, articles, and reports relative to the hearings 3297-3312 

Wolff, Hon. Lester L., a Representative in Congress from the 
State of New York : 

Memorandum, dated September 5, 1967, regarding audit 
authority respecting administration of Internal Revenue 
Code 3252-3255 

Statement 3013-3015 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



FRIDAY, MAY 12, 1972 

House of Representatives, 

Foreign" Operations and 
Government Information Subcommittee 
of the Committee on Government Operations, 

Washington, D.C. 

The subcommittee met, pursuant to recess, at 10:10 a.m., in room 
2154, Rayburn House Office Building, Hon. William S. Moorhead 
(chairman of the subcommittee) presiding. 

Present: Representatives William S. Moorhead and Gilbert Gude. 

Staff members present: Norman G. Cornish, deputy staff director; 
and William H. Copenhaver, minority professional staff, Committee 
on Government Operations. 

Mr. Moorhead. The Subcommittee on Foreign Operations and Gov- 
ernment Information will please come to order. 

Today the Foreign Operations and Government Information Sub- 
committee is taking a forward look at Government information activi- 
ties. We are looking at the Government's plans for the control of infor- 
mation in some possible national emergency. 

The Office of Emergency Preparedness has been given the job, by an 
Executive order, of developing plans for emergency information and 
wartime censorship. Nearly 10 years ago the subcommittee held hear- 
ings on the same subject. 

We found, then, that the OEP had not taken the press into its con- 
fidence in planning for censorship of the media within the United 
States in a national emergency. After our hearings, the President ap- 
pointed an official to serve as 'a Standby Director of Censorship, but 
his identity became a classified secret. 

Since then, the identity of the Standby Director of Censorship has 
been disclosed, but the OEP reported the job has been abolished. They 
also report that a list of 26 newsmen, editors, and others who would 
administer the censorship system has been cut to eight persons — all of 
them Government employees, retired military officers, or corporation 
executives. 

Apparently, there have been no improvements in the Standby Cen- 
sorship Code since the subcommittee's last hearings. In fact, it has not 
even been sent out to the newspapers and broadcasting stations which 

( 2939 ) 



2940 

will have to follow the code as soon as the President declares a national 
emergency. 

I hope the OEP witnesses today will be able to clarify their current 
censorship plans and problems. 

Our witnesses today will be Mr. E. J. Quindlen, Assistant Director 
for Government Preparedness, Office of Emergency Preparedness. 

Mr. Quindlen, we are pleased to have you here. Will you introduce 
your associate for the record ? 

STATEMENT OF E. J. QUINDLEN, ASSISTANT DIRECTOR FOR GOV- 
ERNMENT PREPAREDNESS, OFFICE OF EMERGENCY PREPARED- 
NESS ; ACCOMPANIED BY JOHN W. NOCITA 

Mr. Quindlen. Mr. Chairman, with me today is Mr. John W. Nocita, 
who is the member of my staff with the principal planning assistance 
responsibility to me for this area which we now call wartime infor- 
mation security. 

As you indicated, Mr. Chairman, under the terms of section 301 of 
Executive Order 11051 issued September 27, 1962, the President as- 
signed to the Office of Emergency Preparedness, among other things, 
the "primary responsibility * * * for developing in association with 
interested agencies the emergency planning for * * * wartime 
censorship." 

Upon my assumption of responsibility for this program in 1969, 
I moved to have its designation changed to the wartime information 
security program, as this term more appropriately describes the ob- 
jectives of the program. When we discuss wartime information secu- 
rity, it is in a relatively narrow connotation and has nothing to do with 
the control of news at its source. We do not consider the term "censor- 
ship" applicable to a situation where press and broadcast releases are 
covered by a code which is completely voluntary. The wartime infor- 
mation security program is the technical mechanism where interna- 
tional mail, telecommunications, and travelers can be controlled and 
where the domestic public media can cooperate in avoiding giving 
information to the enemy by adhering to a voluntary code which de- 
scribes categories of information which could be of help to an enemy 
in prosecuting a war against this Nation. 

In planning for wartime information security, we have available 
to us the past experiences of World War I and World War II. In 
World War I, the Navy assumed responsibility for submarine cable 
censorship. Postal censorship was primarily guided by the Post Office 
Department. The War Department participated in the censorship 
program when an Executive order in 1917 placed telephone and tele- 
graph lines leading across American borders, under the Army. The 
press contributed to the program through a voluntary withholding of 
information that would be of help to the enemy. This arrangement 
was not wholly satisfactory due to the fragmentation and rigidity 
of the program. 

The situation in World War II was considerably better when the 
program was run by Byron Price whose background in the public 
media served to bring a balance between the rights of the American 
people for information and the needs for the Nation for security in 
wartime. Mr. Price reflected this approach to his task in his report to 



2941 

President Truman upon leaving the job of director. He stated: 
''Censorship is an indispensable part of war, and planning for it should 
keep pace with other war plans," and later qualified that statement 
by writing, "All planning for censorship should rest firmly on a deter- 
mination to apply restraints in such a way as to preserve, rather than 
to destroy, free institutions and individual liberties." 

The successful application of the program by Mr. Price, of which 
there were relatively few criticisms, has served as a guide in our 
planning activities. The elements of the wartime information security 
program present in our planning today are similar to those used by 
Mr. Price. They are: the control of all means — postal, travelers, and 
telecommunications — which may be used to transmit information 
across the borders of the United States, and the voluntary withholding 
of military and other information (which would not be released in 
the interest of effective prosecution of the war) by the domestic public 
media. 

The philosophy of Mr. Price, which was discussed before hearings 
of this subcommittee in 1963, was then and, we feel, still is applicable 
to this program. Planning for wartime information security has en- 
compassed a range of contingencies including the possibility of nuclear 
war. As part of our continuing responsibility for planning for war- 
time information security, we have had the program under review to 
determine the relevance of existing plans to current conditions. From 
this review we have concluded, on the basis of our experience since 
World War II, particularly the Korean war and the present Vietnam 
conflict, that it would be unlikely that any element of the wartime 
information security program would be implemented in any con- 
tingency short of a nuclear attack situation. We do consider, however, 
That a wartime information security program is an indispensable part 
of plans for such a contingency. While the contingency of nuclear 
attack on the United States is regarded as unlikely, planning for such 
a contingency is necessary because of the seriousness of the conse- 
quences if it does occur. 

We have in being today specific and concrete plans for wartime 
information security, but we have been reviewing and studying them 
to determine if we can make them more responsive to a nuclear war 
contingency. As we are all aware, the problems of supporting the 
national security objectives of our Nation, should we be subjected to 
a massive nuclear attack, differ considerably from a situation in which 
we can operate in a more normal environment. We are, therefore, con- 
cerned that should a need arise for a wartime information security 
program that the elements of the program will be able to respond 
when needed. 

The broad objectives of wartime information security and the orga- 
nization for obtaining those objectives remain substantially unchanged 
from the time of your 1963 hearings. I would like to review for the 
committee the element of information security contained in our plan- 
ning for this program. If the wartime information security program 
is implemented by the President, the first activity of the Director of 
the Office of Wartime Information Security, when appointed by the 
President, will be to initiate voluntary information security of the 
domestic public media. It is recognized that the success of such infor- 
mation security must depend upon the confidence of the public media 



2942 

industries. Therefore, while initially the personnel to bring this func- 
tion into being would come from public media members of the Na- 
tional Defense Executive Reserve, the Director of Wartime Informa- 
tion Security would turn to the public media for additional experi- 
enced personnel known personally to the industries and respected by 
them. 

Voluntary information security by the domestic public media would 
be complemented by the Director of Wartime Information Security 
with positive information security of international communications. 
By agreement between the OEP and the Department of Defense, the 
Department of Defense has agreed to assume the initial responsibility 
for activating and operating postal, travelers, and telecommunica- 
tions information security. As quickly as the Office of Wartime Infor- 
mation Security is in a position to function it will assume control over 
these programs. 

I would like to return to the voluntary information security of the 
domestic public media and discuss briefly with you the Voluntary In- 
formation Security Code. This code was first developed in World War 
II to support that aspect of the wartime information security pro- 
gram. The code was last revised in 1063, and copies were furnished 
to your committee. Byron Price assisted in the last revision and OEP 
invited representatives of key media organizations to review the code 
and provide any recommendations on the content of the code. The 
revision of the code and its distribution were of interest to your com- 
mittee in 1063, and more recently in correspondence with OEP in 
1070. 

The Director of OEP distributed the 1063 revision in that year at 
meetings with various media organizations. No formal distribution 
was made at that time but the Voluntary Code had been published in 
prior years in trade magazines. Since the last revision of the code, 
copies have been provided by OEP on request. 

In our continuing review of the wartime information seeurit}^ pro- 
gram we plan to determine whether any revision to the voluntary 
information security code may be necessary. This is a good code and 
any plans for revision would be only to insure that the code is appli- 
cable to the type of wartime emergency in which the program might 
be implemented. We shall seek the assistance of the public media or- 
ganizations in this review of the code. 

Mr. Chairman, I assure you that my staff and I will always be avail- 
able to you or to your committee to furnish you any additional infor- 
mation you might desire. I appreciate the opportunity to review this 
program for the committee. 

Thank you, Mr. Chairman. 

Mr. Moorhead. Thank you, Mr. Quindlen. 

I understand that there is a standby Presidential Executive order 
which is classified. Is that correct, Mr. Quindlen ? 

Mr. Quindlen. Sir, we have both a proposed standby Executive 
order and a proposed draft piece of emergency legislation, either of 
which would be used, depending on the situation. 

Mr. Moorhead. Do I also understand that you can supply to the 
subcommittee the classified Executive order with a deletion f;o that 
that can be made public ; is that correct ? 



2943 

Mr. Quixdlkx. Yes: Mr. Chairman. I believe you are referring to 

our overall plan as well as the proposed Executive order. We can sub- 
mit them with a deletion primarily of one classified area. 

Mr. Mookhead. And do I understand that the primary deletion 
would be the location of the Office of Wartime Information Security? 

Mr. Quixdlex. Yes, sir; that is true. We would have to remove all 
references to locations and other specifics of operations included in the 
plan. 

Mr. Moorhead. We would appreciate it if you would submit that 
for the record. And without objection the declassified order will be 
made a part of the record. 

(The documents referred to follow :) 

OFFICE OF CENSORSHIP BASIC FLAN 

OEP OFFICE OF EMERGENCY PREPAREDNESS 

Chapter I 

GENERAL 

Section 1. Purpose 

The purpose of national censorship in the United States, in time of war, i.s to 
safeguard the security of the United States and its allies in the fields of com- 
munication and information and to assist in the prosecution of the conflict. 

Sectio)i 2. Definitions 

a. United States. — The term "United States" includes the 50 States, the Com- 
monwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and 
Swains Island, the Canal Zone, the Trust Territories of the Pacific Islands, and 
any territory or area under the jurisdiction of the United States or which is 
committed to its control as administering authority by treaty or international 
agreement. 

b. Communication. — The term "communication" shall include any letter or book, 
plan, map, or other paper, picture, sound recording or other reproduction, tele- 
gram, cablegram, wireless message or conversation transmitted over wire, radio, 
television, optical or other electromagnetic system, and any message transmitted 
by any signalling device or any other means. 

c. Rational censorship. — The control and examination of communications en- 
tering, leaving, transiting, or touching the borders of the United States and the 
voluntary withholding from publication by the domestic public media industries 
of military and other information which should not be released in the interest 
of the safety and defense of the United States and its allies. 

d. Public' media censorship. — The voluntary cooperation of the domestic press, 
publishing, broadcasting and motion picture industries in withholding from 
publication military and other information which should not be released in the 
interest of the safety and defense of the United States and its allies. 

e. Telecommunications censorship. — Within the scope of national censorship 
the control and examination of communications transmitted or received over the 
circuits of commercial communications companies classified by the Federal Com- 
munications Commission as "common carriers" and not under the control, use, 
supervision or inspection of a Federal agency. 

/. Postal and travelers censorship. — Within the scope of national censorship 
the control and examination of postal communications ; communications carried 
on the person or in the baggage or personal possessions of travelers ; and all other 
communieations subject to censorship and not within the purview of other ele- 
ments of the Office of Censorship. 

Section J. Mission 

The mission of national censorship is twofold : To keep from the enemy infor- 
mation which would aid his war effort or hinder our own or that of om* allies, 
and to collect information of value in prosecuting the war and make that in- 
formation available to the proper agencies. 

To accomplish this mission, international communications are censored to pre- 
vent the disclosure, either purposely or inadvertently, of information relative to 



2944 

the identification, equipment or movement <>f armed forces; location, cargo and 
routes of shipping; war production and plants; or any other information per- 
taining to the national war effort. At the same time censorship accumulates, and 
makes available to the proper authorities, like information about the enemy ac- 
tivities. In addition to information of value in the armed conflict, much data is 
acquired that assists the United States to deprive the enemy of funds and com- 
modLties with which to carry on the war. 

( jnsorshtip of the domestic press, publishing, broadcasting, and motion picture 
industries is accomplished by a coordinated, voluntary withholding from publica- 
tion of military and other information which should not be released in the interest 
. ' -i -five prosecution of the war. 

Section f t . Scope 

i») National censorship includes: (1) Public media censorship; (2) postal 
and travelers censorship; and (3) telecommunications censorship. 

(h) National censorship does not include: (1) Censorship within an area oc- 
cupied or controlled by the Armed Forces ; and (2) censorship of communications 
transmitted via communications systems of the Armed Forces. 

Note. — The Office of Censorship, acting as agent for the Department of Defense, 
will perform certain secondary censorship of Armed Forces mail. 

(?) Communications subject to censorship are: communications by mail, land 
lines, cable, radio, television, or other means of the transmission crossing the bor- 
dei of the United States: communications carried by any vessel, aircraft, or 
other means of transportation bound to or from any foreign country and touching 
at any port or place of the United States ; communications between any of the 
following: Continental United States, the State of Hawaii, the Commonwealth of 
Puerto Rico, Guam, the Virgin Islands, American Samoa and Swains Island, the 
Canal Zone, the Trust Territories of the Pacific Islands, and any other territory 
or area under the jurisdiction of the United States or which is committed to its 
control as administering authority by treaty or international agreement; com- 
munications carried on the person or in the baggage or personal possessions of any 
passenger, crew member, stowaway or workaway traveling in vessels, aircraft or 
other means of transportation as outlined above. 

Section 5. Authorities 

Legislation authorizing the censorship of communications during World War I 
was contained in section 31 d) of the "Trading with the Enemy Act" of October 6, 
1917. This section of the 1917 act remains in effect as 00 App. U.S.C. 3(d). 

World War II censorship legislation was contained in section 303 of the "War 
Powers Act" of December 18, 1941. This legislation included the same wording as 
section 3(d) of the 1917 act pertaining to the censorship of communications plus 
section 16 of the same act which established penalties for violations. 

A standby bill, the "Defense Resources Act," including legislation authorizing 
a national censorship (title XI). has been prepared for use in a future emergency. 

Section 6. Assumptions 

Censorship is an essential part of war, and planning for it should keep pace 
with other war planning. 

In the event of war, the President will impose national censorship. 

The imposition of national censorship will be supported by appropriate 
legislation. 

Upon imposition of national censorship the President will establish an Office 
of Censorship and appoint a Director of Censorship. 

The Office of Censorship will be an independent Federal agency reporting di- 
rectly to the President. 

Section 7. Fundamentals of censorship 

(a) An effective censorship operation requires complete control of all means 
used to transmit information across the borders of the United States. No volun- 
tary censorship of the domestic public media can be successful without an accom- 
panying censorship of international communications. And no censorship of inter- 
national communications can be successful unless it is comprehensive. 

Regional censorship of international communications, that is, censorship of com- 
munications between specified areas of the United States and specific foreign 
countries, cannot be effective for reason of the highly sophisticated worldwide 
coimnunieations complex which makes available many diverse means of circum- 
vention. 



2945 

(&) The Office of Censorship should not be charged with any responsibility 
for the establishment of Government information policy, the release of in' i ma- 
tion, or the conduct of propaganda programs. In short, it should not be respon- 
sible for censoring the Government. 

Such responsibility should be vested in an entirely separate agency or office. 
Experience has shown that censorship cannot successfully be mixed with pub- 
lic information programs or propaganda operations. 

Section S. Policies 

The Office of Censorship will control completely and exclusively all censor- 
ship, voluntary or otherwise, within the United States, with the exception of 
military censorship, and all censorship of international communications, other 
than those in Federal Government or military channels. 

National censorship is strictly a wartime measure, initiated only in time 
of war and discontinued immediately when the need for it no longer exists. 
As such, censorship will be concerned only with matters directly related to the 
war effort. Censorship will not be used to suppress information other than in 
the interest of national security and defense, will not assist in the enforcement 
of peacetime statutes unconnected with the war effort, and will not act as a 
guardian of public morals. 

The Office of Censorship will have no investigative or law-enforcing func- 
tion. It will have no propaganda mission. 

National censorship will not exercise control over Federal Government com- 
munications circuits, or facilities which may be allocated to Federal ag ncies, 
or which may come under their control, use or supervision, nor will it censor 
the official releases of Federal agencies. 

Section 9. Responsibilities 

The Office of Emergency Preparedness, in the Executive Office of the Presi- 
dent, is responsible for directing, coordinating, and monitoring the overall plan- 
ning for national censorship. (Executive Order 11051, Sept. 27. 1962. ) 

The Secretary of Defense and the Director of the Office of Emergency Pre- 
paredness, for the Office of Censorship, have entered into an agreement setting 
forth the responsibilities of each agency with respect to the planning f< r, and 
the operation of, national censorship. 

(a) Planning: 

(1) The Office of Emergency Preparedness will : 

(a) Coordinate and monitor all aspects of national censorship planning. 
( l> ) Develop a plan for establishing the public media censorship. 

(c) Develop a plan, in coordination with the Department of Defense and 
other interested agencies, for the Office of Censorship. 

(d) Furnish policy and training guidance, a coordinator, and training 
space for the Special Analysis Division. 

(e) Develop plans to coordinate for the Office of Censorship the procure- 
ment of equipment necessary to support the operations of the Special Analy- 
sis Division. 

(/) Accept responsibility for procuring space for all elements of Na- 
tional Headquarters of the Office of Censorship. 

{g) Develop plans for the Office of Censorship to coordinate the hiring of 
all civilian personnel to be used by all elements of the National 11 cad- 
quarters of the Office of Censorship. 

(h) Maintain an activation file containing the necessary directives for 
the establishment of national censorship. This includes proposed proclama- 
tions, executive orders, and legislation. 

(i) Coordinate, in conjunction with the Department of Defense, liaison on 
national censorship policy matters with foreign governments. 

(2) The Department of Defense will : 

(a) Develop plans and preparations for telecommunications censorship, 
postal and travelers censorship, and the special analysis division (except 
those responsibilities assigned to the Office of Emergency Preparedness in 
a. (1) (d) and (e) above) as elements of the Office of Censorship. 

(&) Maintain liaison with foreign governments on technical and opera- 
tional planning matters. 

(c) Maintain duplicate activation files containing the necessary directives 
for the establishment of national censorship. 



2948 

(d) Achieve and maintain an adequate degree of readiness at all times 
for the activation of those elements of the Office of Censorship for which the 
Department of Defense is responsible. 
(b) Operating : 

(1) The Department of Defense : 

Upon the establishment of the Office of Censorship and the appointment of a 
director (simultaneous with the imposition of national censorship), the Direc- 
tor's first efforts will be directed to coordinating the voluntary censorship of 
domestic public media, and to organizing the headquarters Office of Censorship. 
As it is imperative that the censorship of international communications be ini- 
tiated immediately upon the imposition of national censorship, the Secretary of 
Defense has been assigned the mission of initiating such interim actions as are 
necessary to carry out certain of the functions assigned to the Director or the 
Office of Censorship relative to the censorship of international communications. 

In accordance with this assignment, and the cited agreement, the Department 
of Defense will activate and initially operate the postal and travelers censor- 
ship, telecommunications censorship, and the special analysis division. 

Upon determination by the Director that the Office of Censorship is prepared 
to assume control over these functions, responsibility for their conduct shall be 
vested in the Director. 

(2) The Office of Emergency Preparedness : 

The Office of Emergency Preparedness has no assigned responsibility for the 
operation of national censorship or of the Office of Censorship. Once censorship 
is imposed, the Office of Censorship established and a director appointed, the 
Director of Censorship will have the sole responsibility and authority, under the 
President, for all national censorship operations, except for the interim Depart- 
ment of Defense mission referred to in the preceding paragraphs. However, the 
actual imposition of censorship may be preceded by a period of increased readi- 
ness, partial mobilization, or strategic alert. During such a period selected in- 
dividuals from the military elements of the planned Office of Censorship may be 
called to active duty with the object of making preparations for full activation : 
acquiring real estate, establishing the national censorship communications net- 
work, procuring equipment, establishing station teams in duty station locations, 
and making preliminary arrangements for civilian recruitment. The Office of 
Censorship not being established or a Director appointed at this time, any actions 
taken to increase the readiness for operation of the Director's Office or the Press 
and Broadcast Divisions, and to coordinate readiness preparations of the head- 
quarters elements, will be the responsibility of the Office of Emergency Prepared- 
ness. This will include the initial call-up of Executive Reserves and clerical and 
administrative cadres; negotiations for office space, communications, and other 
services ; and the procurement of equipment and supplies. 

Section 10. Oilier censorships 

(a) United States: 

The only censorship, other than that operated by the Office of Censorship 
(national censorship) which may be operated by any agency under the jurisdic- 
tion of the Federal Government is that under the purview of the Department 
of Defense. These censorships, operated by the Armed Forces and classified as 
military censorship, are as follows : 

(1) Armed Forces censorship. — The control and examination of personal com- 
munications to or from persons in the Armed Forces of the United States and 
persons accompanying or serving with the Armed Forces of the United States. 

(2) Civil censorship. — The control and examination of communications enter- 
ing, leaving, or circulating within areas occupied or controlled by the Armed 
Forces of the United States, except those already controlled by other forms of 
United States or allied censorship. 

(3) Enemy prisoner of war and civilian internee censorship. — The control and 
examination of those communications to and from enemy prisoners of war and 
civilian internees held by the U.S. Armed Forces. 

Note.— The censorship of communications to and from enemy prisoners of 
war and civilian internees held in areas where national censorship is operating 
is the responsibility of the Office of Censorship. 

(4) Field press censorship. — The security review of news material subject to 
the jurisdiction of Armed Forces of the United States, including all information 
or material intended for dissemination to the public. 



2947 

Extensive liaison will be maintained between tbe national censorship organiza- 
i imi and the censorship organizations of the Armed Forces to insure the maximum 
coordination and cooperation. 

( b ) Other nations : 

Much valuable information would be lost to the United States and much secu- 
rity information compromised if foreign communications which do not travel 
across our borders were allowed to reach their destination without interception 
by a friendly censorship. For that reason, international agreements and world- 
wide coordination and cooperation are necessary to form an integrated network 
of censorships of maximum effectiveness and productivity. 

Most of the principal allies of the United States will have censorship orga- 
nizations in time of war. An exchange of information, techniques, requirements, 
and watch listings will be made, commensurate with the individual country's 
political reliability and the efficiency and security of its censorship operation. 

Close liaison is necessary to establish uniform policies and practices ; to ex- 
change special techniques with our allies ; and to coordinate the combined effort. 
Liaison will be maintained with allied and neutral censorships at both head- 
quarters and operating levels. 

Chapter II 

ORGANIZATION 

Section 1. Office of Censorship 

The Office of Censorship will consist of: The Office of the Director; Tress 
Division ; Broadcast Division ; Telecommunications Division ; Postal and Trav- 
elers Division ; and Special Analysis Division. 

The functions and organization of these elements of the Office of Censorship 
will be generally as shown in the following sections, and in the plans of the re- 
spective offices and divisions. However, as the circumstances of activation, and 
subsequent operation, are not known or cannot be predicted with any assurance 
of accuracy, the entire organization for national censorship must be sufficiently 
flexible to adjust to any possible situation. 

Section 2. Office of the Director 
Functions : 

(a) Exercise general administrative direction over all national censorship 
operations. 

(b) Establish policies for the voluntary censorship of the public media, and 
limitations, operating procedures, rules, and regulations for the censorship of 
international communications. 

(c) Carry out the orders of the President of the United States in connection 
with the censorship of communications by mail, cable, radio, television, or other 
means of transmitting information between the United States and foreign 
countries. 

I d ) Control the authorization of communications to nationals of enemy, enemy- 
allied or enemy-dominated countries. 

i e ) Maintain liaison with censorship and intelligence organizations of friendly 
foreign countries for the purpose of coordinating worldwide censorship activities. 

The Office of the Director will consist of the Director, Deputy Director, an 
executive assistant, and such special assistants as shall be required. Included 
in this office will be such administrative services as are necessary to the opera- 
tion of an independent Federal agency. 

A cadre to activate and to staff key positions in the Office of the Director, and 
in the Press and Broadcast Divisions, is composed of preselected specialists, fully 
qualified in their respective fields, who are enrolled in the National Defense 
Executive Reserve. 

Section 3. Press Division — Functions 

(a) Administer the voluntary code, restricting the publication of information 
which might be of aid or comfort to the enemy. 

(&) Counsel with newspaper, magazine, book, trade, and other publishers 
regarding the publication of certain types of war information. 

(c) Maintain liaison with various Government departments and agencies, ob- 
taining their views regarding material for publication. 

(d) Act on appeals from editors regarding alleged unreasonable requests by 
other Government officials or agencies concerning the withholding of material. 



294S 

(e) Supervise censorship of press dispatches entering or leaving the United 
States. 

(/) Interpret, on request, provisions of the code and make decisions on mat- 
ters not specifically covered by the code. 

The Press Division will be activated with, and operate under the direct super- 
vision of, the Office of the Director. It will be headed by an Assistant Director 
for Press. 

Section / f . Broadcast Division — Functions 

(a) Administer the voluntary code and the censorship code of practices for 
nonmilitary radio and television point-to-point services restricting the broad- 
casting of information that might be of aid or comfort to the enemy. 

(b) Monitor domestic foreign language broadcasts and check against code to 
assist foreign language broadcasters in keeping their programs within code 
provisions. 

(c) Counsel with broadcasters, commentators, news services, motion picture 
producers, advertising agencies, and others regarding the broadcasting or other 
dissemination of certain types of war information. 

(d) Maintain liaison with various Government departments and agencies, ob- 
taining their views regarding material for broadcasting. 

(e) Act on appeals from broadcasters regarding alleged unreasonable requests 
by other Government officials or agencies concerning the withholding of material. 

(/) Interpret, on request, provisions of the code and make decisions on matters 
not specifically covered by the code. 

(g) Supervise censorship of all outgoing international shortwave programs 
subject to censorship. 

The Broadcast Division will be activated with, and operate under the direct 
supervision of, the Office of the Director. It will be headed by an Assistant Di- 
rector for Broadcast. 

Section 5. Telecommunications Division — Functions 

(a) Censor communications by cable, radio, and land line transmitted over 
"common carrier" circuits and crossing the borders of the United States. 

(b) Maintain close liaison with the telecommunications censorship operations 
of allied foreign countries for the purpose of exchanging information and co- 
ordinating operations. 

(c) Advise and assist other Federal agencies on matters relating to telecom- 
munications censorship. 

(d) Coordinate with international communications companies on matters re- 
lating to the censorship of telecommunications. 

The Telecommunications Division will be activated and initially operated by 
the Chief Telecommunications Censor under the Secretary of the Navy. Upon 
assumption of control by the Director of Censorship, the Chief Telecommunica- 
tions Censor will continue operational control under the Director of Censorship 
and will assume the additional title and responsibilities of Assistant Director of 
Censorship for Telecommunications. 

The Navy has active Reserve units in training whose mission will be to open, 
staff, and operate the chief telecommunications censor's office, located at the 
national headquarters of the Office of Censorship. Stations will be established 
in locations throughout the United States, Puerto Rico, Guam, the Virgin Islands, 
Guantanamo (Cuba) , and the Canal Zone. 

Operational plans have been developed and are kept current. Manuals and in- 
structions are prepared and distributed. 
Section 6. Postal and Travelers Division — Functions 

{at) Censor mail and communications carried by travelers, crossing the borders 
of the United States, and all other communications subject to censorship and not 
within the purview of other elements of the Office of Censorship. 

(b) Perform certain secondary censorship of Armed Forces mail. 

(c) Maintain liaison with the postal censorship oi>erations of allied countries 
for the purpose of exchanging information and coordinating operations. 

(d) Advise and assist other Federal agencies on matters relating to postal and 
travelers censorship. 

The Postal and Travelers Division will be activated and initially operated by 
the Chief Postal Censor under the Secretary of the Army. Upon assumption of 
control by the Director of Censorship, the Chief Postal Censor will continue oper- 
ational control under the Director of Censorship and will assume the additional 



2949 

title and responsibilities of Assistant Director of Censorship for Post;il and 
Travelers. 

The Army and Air Force have active Reserve component units in training for 
postal and travelers censorship. These units are designated to open, staff, and 
operate the Chief Postal Censor's office, located at the national headquarters of 
the Office of Censorship, and in locations throughout the United States, Puerto 
Rico, and the Canal Zone. 

Operational plans have been developed and are kept current, manuals and in- 
structions have been published and distributed, and a small stockpile of station 
equipment is maintained in readiness. 

Section 7. Special Analysis Division — Functions 

(a) Maintain liaison with user agencies and others concerning requirements for 
collection, suppression, and allocation of information obtained through censor- 
ship. 

(ft) Prepare, maintain, and disseminate lists or instructions necessary for the 
effective operation of the censorship collection effort. 

(c) Allocate the censorship product. 

(,(/) Establish policies and provide guidance for technical operations 

(e) Provide for technical analysis and cryptanalysis requirements of the cen- 
sorship organization. 

(/) Provide data processing techniques, systems and operations in support of 
the Office of Censorship. 

The Special Analysis Division will be activated and initially operated by (he 
Chief of Special Analysis under the Secretary of the Army. Upon assumption 
of control by the Director of Censorship the Division will be headed by an 
Assistant Director for Special Analysis. 

The initial cadre for this Division is composed of Army, Navy, and Air Force 
Reserve component officers. The Special Analysis Division will be located at the 
national headquarters of the Office of Censorship. 

Chapter III 

PERSONNEL 

Section 1. Requirements: See Annex G 
Section 2. Recruitment 

The personnel of the Office of the Director and the Press and Broadcast Divi- 
sions will be entirely civilian. Key staff members will be preselected and enrolled 
in the National Defense Executive Reserve. A limited number of clerical per- 
sonnel and teletypewriter operators will be preselected, trained, and carried on 
the Office of Emergency Preparedness rolls as WAE (intermittent) employees. 
Augmentation of this cadre upon activation will be through the authorized 
channels and procedures for the employment of civilians. It is anticipated that 
the requirements for specialists in certain fields : budget, personnel, audit, etc., 
will be met by transfer of experienced employees from other Federal agencies. 

The personnel patterns of the Divisions activated by the military services 
will be varied. The Telecommunications Division will be predominantly naval 
(commissioned and enlisted) and will remain so throughout its operation. A 
limited number of civilians will be recruited for clerical positions and in the 
field of foreign language censors and translators. 

The Postal and Travelers Division will be predominantly civilian, with Army 
and Air Force Officers in key executive and supervisory positions. Stations will 
be activated by military teams organized and trained for the mission. All aug- 
mentation will be civilian. 

The Special Analysis Division will be predominantly civilian, with officers of 
the three services in key executive and supervisory positions. All augmentation 
will be civilian. 

The recruitment of civilian employees by the Telecommunications and Postal 
and Travelers Divisions in the field, while operating under interim control of 
the military authorities, will be in accordance with policies and procedures then 
in effect for civilian procurement within the respective services. Upon assump- 
tion of operational control by the Director of Censorship recruitment policies 
and procedures authorized by the Office of Censorship will apply. 

Recruitment of civilians for all elements of the operational headquarters, 

once the Office of Censorship has been established, will be through a joint per- 

76-253 — 72 — pt. 8- 



2950 

sonnel office operated by the Office of Censorship. All civilians recruited for the 
headquarters elements, when Office of Censorship funds are available, will be 
enrolled initially as employees of the Office of Censorship. 

section 3. Reassignment of military personnel 

When censorship operations are well underway, and trained civilian replace- 
ments available, military personnel may be withdrawn by their respective 
services as mutually agreed by the Secretary of Defense and the Director of 
Censorship. 
Section '/. Administration 

Personnel administration within the national censorship organization will be 
both military and civilian. From the beginning of the operation all records of 
civilian personnel at the operational headquarters will be maintained by the 
personnel branch of the Office of Censorship. The records, and the administration, 
of civilian employees in the Telecommunications and Postal and Travelers Divi- 
sions in the field during the period from activation until assumption of control 
by the Director, will be the responsibility of the Divisions. 

Upon assumption of control of these Divisions by the Director of Censorship 
all civilian employees of the Divisions, including civilian personnel sections, will 
be transferred to the Office of Censorship and all personnel administration 
relative to civilian employees within the national censorship organization will 
become the responsibility of the Office of Censorship. 

Personnel records of military personnel on duty with the national censorship 
organization will be maintained by the appropriate military command. Personnel 
administration — assignment, leave, promotion, pay, etc., pertaining to the military 
will be the responsibility of the respective military services. 

Chapter IV 

ACTIVATION 

Section 1. Contingencies 

The contingencies to be considered in any emergency planning within the 
Federal Government are many and varied. In planning for national censorship 
it is necessary to consider only those contingencies, or situations, wherein the 
national security may require imposition of such censorship. 

Generally stated, these are: (a) General war; and (5) Limited war, or con- 
flicts of the "brush fire" type, in which U.S. forces are involved elsewhere in 
the world on land, sea, or in the air. 

Section 2. Initial actions 

The widely divergent contingencies under which national censorship may be 
imposed will definitely affect the ease and rapidity with which the censorship 
organization can be established and get into full operation. However, regard- 
less of the circumstances at the time of imposition, there are certain actions 
which must be taken to accomplish the activation of the censorship organization 
and the initiation of censorship operations. The circumstances of the emergency 
may influence the timing or the order in which these initial actions are taken. 

Section 3. Occupation of sites 

The various sites to be occupied by the Office of Censorship and the time and 
manner of occupation will be dictated by circumstances existing at the time 
of activation. 

Section J/. Security 

The physical security of censorship field installations will be the responsibility 
of the individual installations heads under policies and procedures established 
by the appropriate divisions. Upon assumption of operational control by the 
Director, the Office of Censorship security officer will coordinate with the 
operating divisions on security matters. 

Initially the physical security of the operational headquarters will be the 
responsibility of the respective divisions. As soon as practicable after activation 
the Office of Censorship security officer will establish a coordinated guard system 
which will replace or supplement the initial independent systems. 



2951 

Chapter V 

OPERATIONS 

The operations of the several elements of the national censorship organization, 
after activation, can be categorized in three different phases, or periods, as 
described in the following sections. These periods are the interim operations, 
normal operations, and emergency operations periods. 

Section 1. The interim operations period 

That period between the imposition of national censorship and the time the 
Director of Censorship assumes control over those functions for which the 
Secretary of Defense has interim responsibility. 

During this period the Director of Censorship, through Press and Broadcast 
Divisions, will coordinate the establishment of a voluntary censorship of the 
domestic public media (press, publishing, broadcast, and motion picture in- 
dustries). He will consult and coordinate with the Secretary of Defense on mat- 
ters of censorship policy and in arrangements for the assumption of control 
over those censorship functions initiated by the Department of Defense. And he 
will establish within the Office of Censorship those administrative elements 
necessary to the operation of an independent Federal agency and develop, as 
rapidly as possible, the capability required for assumption of administrative 
responsibility for the entire national censorship organization other than the 
military personnel. 

The Chief Telecom Censor, under the Secretary of the Navy, will direct the tele- 
communications censorship operations. 

The Chief Postal Censor, under the Secretary of the Army, will direct the 
postal and travelers censorship operation. 

The Chief of Special Analysis, under the Secretary of the Army, will direct the 
operations of the Special Analysis Division. 

Section 2. The normal operations period 

That period, subsequent to the assumption of control over the censorship of 
communications by the Director, when the entire national censorship organiza- 
tion is operating under a unified control. With all communications in operation 
and all facilities functioning the operational and administrative control over all 
Office of Censorship activities will be from the Office of the Director through 
normal organizational channels to all elements. 

Section 3. The emergency operations period 

Any period when, due to enemy actions or other cause, centralized control of 
censorship operations is interrupted. Such a condition would presumably be 
temporary and would be the result of major attack on the United States, either 
by nuclear or conventional weapons. 

In an emergency period all elements of the national censorship organization 
will maintain all possible contact with other elements of the organization and 
will coordinate and cooperate in the common effort to continue censorship opera- 
tions and to resume normal operations as rapidly as possible. 

Section 4- Standby agreements 

Various agreements and understandings have been entered into with other 
Federal agencies and with cooperating foreign governments. These agreements 
relate to the coordination and cooperation necessary for the successful operation 
of national censorship. The actions and functions required of other Federal 
agencies will be authorized and directed by the Executive order imposing such 
censorship. 

Chapter VI 

logistics 
Section 1. Heal estate 

The procurement of office and operating space in the field for the various ele- 
ments of national censorship upon activation is the responsibility of the agency 
or service initiating the activation. The Executive order establishing the Office 



2952 

of Censorship will direct all agencies of the Government to transfer to the Office 
of Censorship, without reimbursement therefor, whatever leases have been en- 
tered into for censorship operations. The Department of Defense will transfer 
such leases at the time the Director of Censorship assumes control over the censor- 
ship of communications. 

Space for telecommunications censorship stations, except the Office of the Chief 
Telecommunications Censor, will be procured by the respective naval district 
commands. Some field stations or units will be located in the operating spaces 
or on the premises of commercial communications companies. 

Space for postal and travelers censorship stations, except the office of the Chief 
Postal Censor, will be procured by the respective ZI Army commands. 

Space for all elements of a censorship operational headquarters — administra- 
tive sections, Press, Broadcast, and Special Analysis Divisions, Chief Telecom- 
munications and Chief Postal Censor Offices — will be provided. Allocation of 
space and facilities, arrangements for normal utilities and services, procure- 
ment of space, and any other matters related to activation and occupation of the 
operational headquarters will be coordinated by the Office of the Director. In 
the event of a partial mobilization or a period of increased readiness prior to 
establishment of the Office of Censorship, the Office of Emergency Preparedness 
will act for the Office of Censorship. All lease negotiations for the operational 
headquarters will be conducted by the General Services Administration for the 
Office of Censorship. 

Section 2. Funds 

The funding of national censorship operations, during the interim period, is 
the responsibility of the agency initiating the activation of the respective ele- 
ments of the organization. 

During this interim period the elements activated and initially operated by 
the Department of Defense will be financially supported by the appropriate serv- 
ices from emergency funds available at the time. 

The Office of the Director, and the Press and Broadcast Divisions, will operate 
on funds allocated to the Office of Censorship from the "Emergency Funds for 
the President, National Defense," or obtained by emergency appropriation. 

Upon assumption of control by the Director all funding for national censorship 
will become the responsibility of the Office of Censorship. At this time the oper- 
ating divisions will furnish to the Budget and Fiscal Branch of the Office of 
the Director the budget estimates necessary for the preparation of the first Office 
of Censorship appropriation request. 

Section 3. Supplies and equipment 

The procurement of supplies and equipment for national censorship operations 
during the interim period, and any stockpiling prior to activation, is the respon- 
sibility of the activating agency. 

During this period those elements of national censorship activated by the 
Armed Forces will be supplied and equipped by the appropriate services through 
military channels. 

The Office of the Director, and the Press and Broadcast Divisions will receive 
supplies and equipment from the sources, and through the channels, normally 
available to Federal agencies other than the military. 

Upon assumption of control by the Director the logistical support of all 
national censorship operations will become the responsibility of the Office of 
Censorship. The Executive order establishing the Office of Censorship will 
direct all Government agencies to transfer to the Office of Censorship, without 
reimbursement therefor, all items of equipment and supplies necessary for and 
being used or allocated to censorship at the time of the transfer. 

Section k- Communications 

All traffic dealing with classified matters and emanating from any source 
in the field organization not having secure means of communications will be 
delivered to the nearest military or other Government installation having such 
capability for transmission. 

Detailed plans for local and internal communications cannot be completed 
until the conditions of occupation are known. Upon activation, or during any 
partial mobilization prior to activation, all elements of the operational head- 
quarters will submit to the Office of Censorship communications officer all 
plans and/or requirements for interagency, local, or interior communications. 



2953 

The communications officer will coordinate all planning and will conduct all 
negotiations relative to operational headquarters communications with the 
appropriate companies through GSA channels. 

List of Executive Reservists in Wartime Information Security 
Program — As of September, 1963 

Mr. Philip D. Adler, Davenport Newspapers. Inc., Davenport, Iowa. 

Mr. Hugh M. Anderson, attorney at law, Hillsboro. Mo. 

Mr. William E. Becker, Securities and Exchange Commission, Washington, D.C. 

Mr. Edward H. Bronson, National Institute of Dental Research, Washington, D.C. 

Mr. Norman V. Carlson, retired. San Francisco, Calif. 

Mr. Edward Cooper, Motion Picture Association of America, Inc., Washington, 
D.C. 

Mr. John P. Cosgrove. communications consultant, Washington, D.C. 

Dr. Lowell S. Ensor. Western Maryland College, Westminster, Md. 

.Mr. Philip T. Foss, Eastman Kodak Co., Oak Brook, 111. 

Mr. Arthur E. King, Broadcasting Magazine, Washington, D.C. 

Mr. Theodore K. Koop. Columbia Broadcasting System, Inc., Washington, D.C. 

Mr. Harold V. Lauth, Kaiser Industries Corp., Oakland. Calif. 

Mr. Julian Lazrus, Benrus Watch Co., Inc., New York, N.Y. 

Mr. Jack H. Lockhart, Scripps-Howard Newspapers. New York. N.Y. 

Mr. Stephen J. McCormick. Mutual Broadcasting System. Inc., Washington, D.C. 

Mr. Robert Y. Phillips, retired, Beaufort, S.( '. 

Mr. James W. Scully III, retired. Delray Beach, Fla. 

Mr. Samuel M. Sharkey, Newhouse National News Service, Washington, D.C. 

Mr. William P. Steven,' Chicago Daily News, Chicago, 111. 

Mr. James P. Taff, Bureau of the Census. Washington, D.C. 

Mr. J. Lloyd Straughn, Western Maryland College, Westminster, Md. 

Mr. Sol J. Taishoff, Broadcasting Magazine, Washington, D.C. 

Mr. H. Mason Walsh, Phoenix Newspapers, Inc.. Phoenix, Ariz. 

Mr. James E. Warner, Department of Health, Education, and Welfare, Wash- 
ington, D.C. 

Mr. Robert M. White II, Mexico Evening Ledger. Mexico. Mo. 

Mr. Eugene Willis, Western Maryland College, Westminster, Md. 

Executive Office of the President, 

Office of Emergency Planning, 

Washington, D.C, September 19G3. 

Standby Voluntary Censorship Code 

(For all media of publication or broadcast) 

To all newspapers, magazines, radio and television broadcast stations, 1 and 
other conveyors of information to the public. 

In time of war it is essential that no information of possible value to our 
enemies be made available to them. This code is a guide for the media and 
cannot cover all possible contingencies. It is the objective of Government, in war- 
time, to provide the public with all possible information regarding the situation 
without disclosing data that would be of value to the enemy. In every instance, 
one should ask oneself, "Is this information that I would like to have if I were 
the enemy?'* and then act accordingly. Tse of implication or speculation as a 
device to convey information helpful to the enemy undermines the purpose of 
voluntary censorship. 

If anyone is in doubt, in any particular case, whether the information in ques- 
tion would aid the enemy, he should ask for clarification from the Office of 
Censorship. 



1 The term "radio broadcast station' - means a radio station licensed by the Federal 
Communications Commission for the transmission of radiotelephone emissions antl/or 
video signals primarily intended to be received by the general public. The code recognizes 
that the emergency broadcast system may be activated under certain emergency conditions. 
The emergency broadcast system is a system in which certain broadcast facilities are 
permitted by the Federal Communications Commission to operate under national defense 
emergency authorization. In such cases the Office of Censorship will be concerned only with 
those stations that are broadcasting. 



2954 

All media are asked not to publish or broadcast information in the categories 
set forth below unless the information is made available for publication or broad- 
cast by appropriate authority 3 or if no objection is found by the Office of 
Censorship : 

WAR PLANS 

War plans, or diplomatic negotiations, or conversations which concern military 
operations. 

ATTACKS 

Information about actual or impending enemy attacks on continental United 
States, its territories or possessions, and its establishments abroad or those of its 
allies. 

It must be borne in mind constantly that in possible nuclear warfare, in partic- 
ular, every editor and broadcaster should assume responsibility in preventing 
panic and needless loss of life. It would be most damaging to the public interest 
to circulate the following : 

1. Rumors, unconfirmed reports and speculation about destruction of life or 
property or fallout possibilities until officially announced. 

2. Information about actual or impending enemy attacks on continental United 
States, its territories or possessions, and its establishments abroad except that 
released by appropriate authority. 

It is requested that information published or broadcast concerning an im- 
pending attack be limited to that released by appropriate authority. 

It is requested that information published or broadcast immediately following 
an alert be limited to that released by appropriate authority. 

It is also requested that information published or broadcast during an attack 
or immediately following an attack be limited to that released by appropriate 
authority, except for : 

1. The fact of the attack and the general, but not the specific, area of its 
impact. 

2. The bare fact that defense measures are being taken. 

Except as officially announced, the nature of the attack (whether conventional 
or nuclear, whether by air, missile, or otherwise, or how many planes, missiles, 
or other weapons were involved) , should not be disclosed or estimated. 

In publications and broadcasts summarizing events after an attack has 
ended, there is no objection to general descriptions of what has happened pro- 
vided such reports (except for official announcements) do not : 

1. Deal with or refer to unconfirmed versions of rumors. 

2. Estimate the strength of the enemy attack force, such as the number of 
planes or missiles ; or their position or routes ; or buildup of enemy troops or 
task forces or their movements. 

3. Estimate the extent of casualties or make any reference to damage to mili- 
tary objectives. 

4. Describe except in the most general terms the defensive measures being 
taken. 

At no time should photographs, films, or live television porgrams portray any 
more information than is given official clearance by appropriate authority or 
the Office of Censorship. 

In short, it is vital that the enemy should not learn from our press or broad- 
casters just what the attacking forces have accomplished. 

On the other hand, there is left considerable scope for news enterprise. It is 
not intended to place any restrictions on the reporting of local stories of such 
matters as feats of heroism, incidents of personal courage, or the call of an 
individual to duty with the military or civil defense organizations. 

ARMED FORCES 

Location, identity, composition, equipment, movement, or prospective move- 
ment of Army, Navy, or Air Force units of the United States or its allies. 

Identification of combat casualties until made available by the Department 
of Defense or next of kin. 



2 The term "appropriate authority" anpears throughout this codp. Since the prosecution of 
war is a Federal responsibility, an appropriate authority, as employed in this code, must 
meet either of two criteria : , 

(a) He must be a constituted Federal official duly authorized, either by rank or position 
or direct investment of authority, to speak for publication and broadcast on matters under 
his jurisdiction which are dealt with in this code : 

(b) or he may be a State or local official speakin? officially on civil defense matters 
under his jurisdiction or to whom special Federal authority has been transferred during 
an emergency. 



2955 



Identity, location, character, description, equipment, assembly, parts, move- 
ments, and prospective movements of naval vessels, transports, and convoys, 
whether of the United States, its allies, or the enemy. 

Identity, location, cargoes and movements of merchant vessels of any nation- 
ality. 

Existence of minefields or other harbor defense, including secret guides to 

navigators, by sea or by air. 

Production, launchings or commissioning of vessels of any type by the United 
States, its allies, or the enemy. 

Information about the sinking or damaging of war or merchant vessels of the 
United States, its allies, or the enemy. 

AIRCRAFT, MISSILES, AND SATELLITES 

Disposition, composition, movements, missions, or strength of United Stale-. 
allied, or enemy air units : military activities of commercial airlines. 

Production data, including information concerning new and current military 
aircraft and related items of equipment, missiles, and satellites. 

FORTIFICATIONS AND INSTALLATIONS 

Location and description of fortifications, military base-;, missile sites, and 
defense installations, including defense installation details of public airports used 
for military purposes or location or description of camouflaged objects. 

PRODUCTION 

New or secret weapons, identity and location of plants making them : secret 
designs, formulas, processes, or experiments connected with the war. 

Rate of production, stockpiling, and consumption of any specific type of war 
material used in or for specialized military operations. 

Location, movement, or transportation of war materiel. 

MILITARY INTELLIGENCE 

Information concerning war intelligence or counter-intelligence operations, 
sources, personnel, methods, or equipment of the United States, its allies, or the 
enemy and any indication of success or failure of deciphering enemy codes. 

Classified detection devices. 

Classified U.S. or Allied means or systems of military communications. 

Sabotage or what could be profitable sabotage targets to the enemy. 

WAR PRISONERS 

Information as to arrival, movements, confinement, or identity of prisoners of 
war. 

Identity of persons arrested or interned as enemy aliens ; locations or operation 
of alien internment camps ; places of confinement of civilians convicted of treason, 
espionage, or sabotage ; persons who have voluntarily submitted themselves to 
protective custody. 

TRAVEL 

Information about the movements of the President of the United States or of 
other high ranking civilian or military officials on diplomatic or military missions 
for the United States or its allies. 

PHOTOGRAPHS AND MAPS 

Photographs or maps conveying any of the information specified in other sec- 
tions of this code; aerial photographs of harbors, war plants, military or viral 
defense installations. 

WEATHER 

Weather forecasts or warnings other than those officially issued by the Weather 
Bureau under specific statement that they are cleared for publication and/or 
broadcast. When appropriately cleared forecasts or warnings applying to areas 
within the continental United States are received, those published by a newspaper, 
or broadcast by a radio or television station, should cover only the State in which 
published or broadcast and not more than four adjoining States, parts of which 



2956 

lie within 150 miles of the point of publication or broadcast. When appropriately 
cleared forecasts or warnings applying only to oceanic or coastal waters (in- 
cluding storm, gale, or hurricane warnings for coastal areas) are received, they 
may be published or broadcast without restriction as to area. 

Wind direction or barometric pressure in current, forecast, or past weather 
(including summaries and recapitulations) except when contained in emergency 
warnings released by the Weather Bureau specifically for broadcast. 

Weather maps less than 10 days old. 

Note — -News stories and photographs about current and past weather occur- 
rence in the State of publication and outside the State within 150 miles of the 
point of publication may be published but not broadcast. News stories and photo- 
graphs about weather occurrences in other areas, especially storms and other 
extremes, will be appropriate for publication only when specifically cleared 
through the Office of Censorship. A consolidated table containing temperature 
and precipitation data for not more than 20 localities may be published but not 
broadcast. News stories, photographs, and films about weather occurrence in 
any area will be appropriate for broadcast only when specifically cleared through 
the Office of Censorship. 

WAK INFORMATION COMING INTO THE UNITED STATES 

Except as noted below, war information originating outside U.S. territory may 
be published or broadcast if the source of the information is carefully stated (no 
material conflicting with the code should be added in rewriting information re- 
ceived from abroad). Exceptions: 

1. Interviews with service men or civilians involving combat operations outside 
the United States (including accounts of escapes) should be submitted before 
publication or broadcast either to the Office of Censorship or the appropriate 
armed services public information officer. 

2. Letters from combat areas are censored in the field only for home consump- 
tion, not for publication or broadcast. When such letters are published or broad- 
cast, information in conflict with provisions of this code should be eliminated. 
Special care should be used in handling escape accounts to eliminate all escape 
details and information which might lead to reprisals or endanger future escapes. 

ACCREDITED CORRESPONDENTS 

No provisions in this code modify obligations assumed by accredited corre- 
spondents who accompany U.S. Armed Forces. 

OFFICE OF CENSORSHIP 



Policy Bo3rd 



ADMINISTRATIVE OFFiCE 

• Personnel 

■ trative f/anagcment 
o Budget and Fiscal 

■ Procurement and Contacts 

• Administrative Facilities 

Services and Supplies 

• Records Kanagsment 

• Communications 

• Histar an 



DIRECTOR 



DEPUTY Cllti ('.TOR 



Operating Board 



SPECIAL ASSISTANTS 

• Cenera! Counsel 
•Interna! Audit ol C'asership 

Opeti tons 

• Liaison with Foreign 

Governments 
•Security Services 
"Community Relations 









TELECOMMUNICATIONS 

DIVISION 























POSTAL & TRAVELERS 
DIVISION 










FIELD STATIONS 



SPECIAL ANALYSIS 
DIVISION 



BROADCAST 
DIVISION 



PRESS 
DIVISION 



2957 

Working Draft — Proposed Draft Emergency Legislative Proposal 

A BILL To Provide Authority for the President To Intercept, Examine, and 
Control International Communications, And for Other Purposes 

Be it enacted by the Senate and House of Representatives of the United states 
of America in Congress assembled, That in order to provide for the national de- 
fense and the public safety, the present emergency situation confronting the 
United States requires that the President be authorized to control international 
communications. It is the purpose of this act to provide such authority, and it is 
the intent of Congress that the powers herein granted shall be broadly con- 
strued to effectuate that purpose, but with all possible regard to the ultimate 
preservation of our form of Government, our personal liberties, and our way 
of life. 

Sec 2. Whenever the President shall deem that the public safety demands it, 
he may cause to be intercepted, examined, and controlled under such rides and 
regulations as he may from time to time establish, communications by mail, cable, 
radio, television, or other means of transmission crossing the borders of the 
United States which for the purpose of this section shall include the continental 
United States, Alaska, Hawaii, Guam, the Virgin Islands, American Samoa, 
Swain's Island, the Canal Zone, the Pacific Islands, and any other territory and 
area under the jurisdiction of the United States, or which is committed to its 
control as administering authority by treaty or international agreement; or 
communications which may be carried by any vessel, airplane, or other means 
of transportation bound to or from any foreign country and touching at any novt 
or place of the United States. 

Sec. 3. (a) Any person who willfully violates the provisions of this act or 
regulations issued thereunder, or who willfully evades or obstructs the inter- 
ception, examination, or control of communications as provided by section 2 
hereof, or who willfully attempts to use any code or other device for the purpose 
of concealing the intended meaning of communications found upon interception 
and examination to be inimical to the national defense, shall be guilty of a felony 
and shall be fined not more than $10,000 or imprisoned for not more than 10 years, 
or both ; and any property, funds, security, papers, or other articles or docu- 
ments, or any airplane, vehicle, or vessel, together with her tackle, apparel, fur- 
niture, and equipment, concerned in such violation, shall be forfeited to the 
United States. 

(b) Mail matters found upon examination under section 2 to be inimical to 
the national defense shall be forfeited to the United States and may be disposed 
of by the President as he shall deem appropriate in the public interest. 

(c) Any employee of the Federal Government having access to information 
resulting from interception and examination of communications who willfully uses 
or attempts to use such information either for nongovernmental purposes preju- 
dicial to the defense interests of the United States, or with the intent to malign, 
to defraud, or to seek personal gain, shall be fined not more than $10,000 or im- 
prisoned for not more than 1 year, or both. 

Sec. 4. (a) Whenever the President finds, pursuant to section 2 of this act. that 
steps must be taken to intercept and examine communications, he is authorized 
to establish a new and independent agency known as the Office of Wartime 
Information Security which shall be headed by a Director of Wartime Informa- 
tion Security to be appointed by the President. The Director shall exercise such 
powers and perform such functions as the President may prescribe. After the 
President establishes an Office of Wartime Information Security and until the 
Director is appointed and assumes the duties of that office, the President may 
designate an official of the executive branch to serve as the Acting Director of 
Wartime Information Security and exercise the powers of the Director. The 
Director shall be compensated at such rate as the President may prescribe and 
as may be permitted by law. There shall be a Deputy Director of Wartime In- 
formation Security and not more than five Assistant Directors, who shall be 
appointed by the President and be compensated at the rate prescribed for posi- 
tions in levels IV and V, respectively, of the executive schedule (5 U.S.C. 5315 
and 5316 respectively) . 

Sec. 5. Section 605 of title 47, United States Code, is amended by adding at 
the end thereof the following new subsection : 

"(b) Nothing contained in this section shall limit the power of the President 
to take such measures as he deems necessary to protect the Nation against 
actual or potential attack or other hostile acts of a foreign power, to obtain for- 



2958 

eigu intelligence information deemed essential to the security of the United States, 
or to protect national security information against foreign intelligence activities." 
Sec. 6. This act and all authority conferred hereunder shall expire in whole 
or in part at such time as may hereafter be provided by law. 

"Working Draft — Proposed Draft Executive Order Establishing the Office 
of "Wartime Information Security and Providing for Interception, Exam- 
ination and Control of International Communications 

"Whereas a hostile foreign power has launched an armed attack upon this 
Nation employing nuclear weapons and causing such widespread death, injury, 
and destruction as to compel the immediate institution of emergency measures, 
including the marshalling of this Nation's defenses and resources : and 

Whereas I have proclaimed the perpetration of an Act of War, the existence 
of an unlimited national emergency, and a state of civil defense emergency ; 

Now, therefore, by virtue of the authority vested in the President by the 
Constitution and laws of the United States, and deeming that the public safety 
demands it, it is hereby ordered as follows : 

PART I. OFFICE OF WARTIME INFORMATION SECURITY 

Sec. 101. There is hereby established the Office of Wartime Information 
Security at the head of which shall be a Director of Wartime Information Secu- 
rity who shall be appointed by the President and who shall receive compensation 
at such rate as the President may prescribe and as may be permitted by law. 

Sec 102. The Director of Wartime Information Security is hereby author- 
ized and directed to request and to coordinate the voluntary cooperation of the 
domestic press, radio and television broadcasters, and motion picture pro- 
ducers in the withholding from publication military and other information 
which should not be released in the interest of effective prosecution of the 
hostilities. 

Sec 103. (a) The Director of Wartime Information Security shall, in accord- 
ance with such rules and regulations as the President shall from time to time 
prescribe, cause to be intercepted and examined, in his absolute discretion, com- 
munications, by mail, cable, satellite, radio, television, or other means of trans- 
mission crossing the borders of the United States or communications which may 
be carried by any vessel, airplane, or other means of transportation bound to or 
from any foreign country and touching at any port or place of the United States 
or communications between any of the places enumerated in subsection (b) of 
this section. The establishment of rules and regulations in addition to the provi- 
sions of this order shall not be a condition to the exercise of the powers herein 
granted or the interception examination and control of international communi- 
cations by this order directed. 

(b) For the purposes of this order, the term "United States" includes the 
Continental United States. Alaska, Hawaii. Puerto Rico, Guam, the Virgin Islands, 
American Samoa and Swains Island, the Canal Zone, the Trust Territories of the 
Pacific Islands, and any other territory or area under the jurisdiction of the 
United States or which is committed to its control as administering authority 
by treaty or international agreement. 

Sec. in4. The Secretary of the Treasury shall exercise his functions under 
section XI of Executive Order No. 2729-A of October 12, 1917, relative to the 
sending, or taking out of, or bringing into, or attempting to send, or take out of, 
or bring into the United States, any letter or other writing or tangible form of 
communication, except in the regular course of the mail, in accordance with such 
policies, procedures, and regulations as the Director of Censorship may prescribe. 

Sec. 10.".. There is hereby created a Wartime Information Security Policy 
Board to advise the Director of Wartime Information Security with respect to 
policy and the coordination and integration of the functions herein directed. 
The Wartime Information Security Policy Board shall consist of the Secretary 
of State. Secretary of the Treasury, Secretary of Defense, Attorney General. 
Postmaster General. Director of the Office of Emergency Preparedness or his 
successor, and Chairman of the Federal Communications Commission. The Secre- 
tary of Defense shall be the Chairman of the Board. 

Sec 106. The Director of Wartime Information Security shall establish a War- 
time Information Security Operating Board, which, under his supervision, shall 
perform such duties with respect to wartime information security operations as 



2959 

the Director shall determine. The Wartime Information Security Operating 
Board shall consist of representatives of such agencies of the Government as the 
Director shall specify. Each representative shall be designated by the head of the 
agency which he represents. 

Sec. 107. All communications crossing the borders of the United States by any 
means and intercepted by any private individual or agency of the Government, 
for whatever purpose, shall he submitted by the intercepting agency to the Office 
of Wartime Information Security for examination in the absence of specific 
directives or agreements to the contrary. 

Sec. 108. All agencies of the Government shall cooperate to the fullest ex- 
tent with the Director of Wartime Information Security by providing informa- 
tion, including classified data, for his aid and guidance in accomplishing the 
wartime information security mission. Except as provided in this Order and in 
the Executive order entitled "Control of Weather Reports and Coordination of 
Civil Meteorological Facilities," and in other appropriate Executive orders, no 
agency shall, without the express authorization of the Director of Wartime In- 
formation Security, exercise any form of wartime information security either 
in the domestic public media field or in the field of communications entering or 
leaving the United States. 

Sec. 109. The Postmaster General shall deliver to the Director of Wartime 
Information Security for examination all mail requested by the Director. 

Sec. 110. Agencies of the Government are hereby authorized to transfer 
to the Office of Wartime Information Security without reimbursement therefor 
whatever leases have been entered into for wartime information security opera- 
tions and all items of equipment and supplies necessary for and being used or 
allocated to wartime information security operations at the time of transfer. 

Sec. 111. The Director of Wartime Information Security is hereby au- 
thorized to issue such instructions as he deems necessary to carry out the pur- 
poses of this order. 

Sec. 112. The Director of Wartime Information Security is authorized to 
take all measures necessary or desirable to administer the powers hereby con- 
ferred, and. in addition to the utilization of existing personnel in any agency of 
the Government available therefor, to employ or authorize the employment of, 
such additional personnel as he may deem requisite. 

Sec. 113. The provisions of this part shall not apply to such areas and 
communications as may be exempted by agreement between the Secretary of 
Defense and the Director of the Office of Emergency Preparedness or his" 
successor. 

PART II. INTERIM OPERATIONS 

Sec. 201. Pending a determination by the Director of Wartime Informa- 
tion Security that the Office of Wartime Information Security is prepared to 
assume operational control over the examination of communications pursuant to 
section 103 of this order, the Secretary of Defense, or his designee, shall serve 
as the Acting Director of Wartime Information Security and shall immediately 
cause to be initiated such interim actions as are necessary to carry out the func- 
tions assigned to the Director or to the Office of Wartime Information Security 
by sections 103, 104. 107-113. Upon such determination by the Director that the 
( tffice of Wartime Information Security is prepared to assume operational control 
over those functions, responsibility for their conduct shall be vested in the 
Director. 

Mr. Mooriiead. Does this include the proposed Executive order, Mr. 
Quindlen \ 

Mr. QrixDi.F.x. "We will provide also a copy of the proposed Execu- 
tive order and the proposed draft emergency legislation. 

Mr. Moorhead. Is the proposed legislation in any way classified ? 

Mr. Quindlen. Yes. We will review the document of which it is a 
part to determine the unclassified form in which we can submit it. This 
is in addition to the plan, Mr. Chairman. 

Mr. Moorhead. Thank you. 

We will want to have properly cleared members of the staff look 
at the classified and the declassified versions. But only the declassified 
Executive order and proposed legislation will be printed in the record. 



2960 

One thing that concerns me is that Executive Order 11051 talks about 
national emergency. And you come before us talking about wartime 
information security. Is it possible that this censorship — I will just 
have to call it censorship, the other is very close to the same meaning — 
could be invoked in any situation short of wartime emergency? 

Mr. Qtjindlen. No, sir. As the testimony of the Director of the OEP 
in the 1963 hearings indicates, we do hot foresee any situation short of 
wartime in which it could be invoked. In addition, our experience since 
World War II has led us to the conclusion that the primary contin- 
gency for which plans should be prepared, and particularly with 
emphasis on the voluntary code, is the situation of nuclear attack. 
While such an attack may be unlikely, it is such a disastrous situation 
that we should be prepared for it. 

Mr. Moorhead. Just to make it absolutely clear, is it your testimony 
that there can be no national emergency short of war in which this 
censorship plan could be put into effect, no national disaster, no nation- 
wide rail strike or any other national emergency ? 
Mr. Quindlen. That is my testimony, yes, sir. 

Mr. Moorhead. And is that based on your interpretation of Execu- 
tive Order 11051 ? 

Mr. Qtjindeen. Sir, under Executive Order 11051, which contains a 
codification of assignments made by previous Executive orders, the 
various functions of the Office of Emergency Preparedness growing 
out of the National Security Act of 1947. the Defense Production Act, 
and various other acts, are described. 

The Executive order indicates that we are to be prepared for a range 
of contingencies. The individual programs for which we plan, how- 
ever, may apply only to certain aspects of these contingencies. Thus, 
our review over the past year has led us to the conclusion that planning 
for the wartime information security program should be directed pri- 
marily at a nuclear attack situation, and that in no case would those 
plans be applied in any situation short of war. 

Mr. Moorhead. Was the Office of Emergency Preparedness placed on 
any sort of alert after the President's recent speech involving the min- 
ing of Haiphong and other ports of North Vietnam ? 

Mr. Quindlen. We are in a condition of normal preparedness. In 
view of our situation as an emergency agency, we have to be pre- 
pared at all times, whether for a typhoon or an earthquake, or as we 
found out last August, for a wage-price freeze. We did administer 
with very little notice the President's phase I of the wage-price freeze. 
Our condition is a condition of normal readiness. 

Mr. Moorhead. I want to get back again to this phrase "national 
emergency." As I read the executive order, there are times where it 
merely says— for example, in section 301 it talks about, "in time of 
national emergency." It doesn't refer to "wartime emergency," it 
just says, in time of national emergency. Is there a section of the Ex- 
ecutive order that you can point to that will allay my concern that 
something other than war would create a national emergency that 
would bring about censorship ? 

Mr. Quindlen. I hope so, Mr. Chairman, because that is how we 
interpret section 301. Under section 301 we are given the respon- 
sibility : under the direction of the President, the Director shall have 
primary responsibility, (1) for planning assumptions, and broad non- 



2061 

military emergency preparedness objectives. Our planning assump- 
tion with respect to wartime information security is that we will be 
primarily — and this is an assumption that the Director of OEP has 
specifically approved — that the readiness for wartime information 
security should be primarily a readiness for nuclear war, that such 
readiness might have an application to a large scale war which is not 
nuclear, such as World War II, but that it should not be a priority mat- 
ter in our planning, and that there are no other circumstances for which 
we should be ready. The plan has no provision for readiness short of 
a war emergency. 

Mr. Mookhead. That to me is very important to have on the record. 

In the event there is a wartime national emergency, and the plan 
goes into effect, I notice that there is a distinction you make between 
postal, travelers and telecommunications, where you have used the 
word "control," and voluntary withholding of information by the 
domestic public media. 

Mr. Quindlen. That is right. By control we mean control of in- 
formation and people going beyond the borders, control of interna- 
tional communications. 

Mr. Moorhead. This is not voluntary ? 

Mr. Quindlen. This is a Government-operated program, but with 
domestic press and broadcast not included. 

Mr. Moorhead. This is what you would define as censorship because 
it is not voluntary, is that correct '. 

Mr. Quindlen. Yes, although we use the term wartime information 
security, because really the purpose is to keep the enemy from obtain- 
ing information which has to do with the national defense and na- 
tional security. 

Mr. Moorhead. Then because broadcasts, particularly radio, can be 
picked up at extraordinary distances, would there be control over 
broadcasting media '? 

Mr. Quindlen. No, sir. We are only talking about international pos- 
tal travelers and telecommunications communications and not domes- 
tic press and broadcast. These are not covered in any way under this 
plan by a Government control. 

Mr. Moorhead. Mr. Quindlen. what changes have been made in the 
standby voluntary censorship code since it was updated in September 
of 1963 ? 

Mr. Quindlen. There have been none made. 

Mr. Moorhead. When was the last time either the code or other 
standby censorship plans were discussed with any representatives of 
the information media ? 

Mr. Quindlen. With the then designated director of the wartime 
information security program, about 2 years ago, but not with repre- 
sentatives of the public media associations. We certainly intend to do 
this. We have been going through a process of study of the entire 
program. 

Mr. Moorhead. I notice that you do say — this is page 7 of your testi- 
mony — "We shall seek the assistance of the public media organiza- 
tions in this review of the code." 

Mr. Quindlen. Yes, sir. 

Mr. Moorhead. When will this take place, when will you have a 
review and when will you have the meeting with the public media ( 



2962 

Mr. Quindlen. Within the near future. I don't have a date estab- 
lished as yet as we have not determined what revisions, if any, may be 
needed in the code. I think the code is basically sound. There may be, 
however, certain small areas in the code which perhaps have been over- 
taken by technology. For example, there is a reference to weather in 
the code. It may be that this no longer needs to be covered in as much 
detail. We don't know right at this point. And, if there is any way we 
can simplify the code, we certainly want to get advice on that. The code 
was reviewed in 1963, as you recall. At that time, the representatives 
of the various public media associations submitted comments — there 
were very few submitted at that time — I think perhaps because the 
code had been developed during World War II by Byron Price with 
the assistance of the entire industry. 

Mr. Moorhead. I realize you are not in a position to give us a firm 
date. But when you say in the near future, are you talking about weeks 
or months or years '? 

Mr. Quindlen. I would say in the next 3 or I months. But we don't 
have a schedule worked out at this point. 

Mr. Moorhead. Is there now a standby director of censorship or 
director of wartime 'I 

Mr. Quindlen. There is not. 

Mr. Moorhead. Why has the number of executive reservists who 
would operate the censorship system been reduced from 26, which was 
in 1963, to eight? 

Mr. Quindlen. Starting in early 1970, we began a review of our 
whole executive reserve program for all purposes. This also at that 
time was a responsibility of my office. One of the problems with an 
executive reserve, as with any similar program, is that it needs review- 
ing and updating. People retire from jobs in an industry and we are all 
aging. Those of us who were involved in activities in World War II 
are perhaps not the people that should be turned to for those activities 
now. We have a 3-year review of this program. Both the executive 
reservists in support of the wartime information security program 
and other designations come up for review. Some of the people in- 
volved in the activities were of an age where their services perhaps 
should be appropriately recognized, and they should not be reap- 
pointed. There were others who had not been active, and who had not 
attended any of the — even the national training sessions. So when they 
came up for a review, inasmuch as we had the program under study, 
we just didn't renew. The eight reservists identified in support of the 
wartime information security program are those whose designations 
have not terminated. There was one exception, I think probably Ted 
Koop, who formerly had been designated director. His term in the 
reserve was renewed. 

Mr. Moorhead. Are there any current working newsmen on the 
standby executive reserve ? 

Mr. Quindlen. None of these eight are newsmen at this point. 

Mr. Moorhead. Why don't you have any newsmen ? You say in your 
testimony that the success of the World War II program was due to 
the participation of representatives of the media. 

Mr. Quindlen. Well, until 1970, and until the review of this pro- 
gram, there were newsmen represented. I personally am not sure either 
at this time how large an executive reserve component is needed to 



2963 

support this program or the extent to which you should look to industry 
for the people who happen to be key people at the time of implementa- 
tion. This is one of the elements that we will discuss with the associa- 
tions when we meet with them, as well as discussing the code and how- 
it should be implemented. 

Mr. Mooriiead. When was the last time a meeting was held with the 
executive reservists to either get their advice on necessary changes in 
the standby censorship system or provide training for their duties in 
the event of the existence of a wartime emergency ? 

Mr. Quixdlex. The last session was in October 1967. That was a 
national executive reserve conference to which the then censorship 
reservists were invited along with the other reservists. There was some 
general training on one day, and the following day was devoted to 
specific training in their own program. 

(A copy of the report on the October 23-'24. 1967. National Defense 
Executive Reserve meeting is in the subcommittee files.) 

Mr. Mooriiead. Do you think that a 5-year lapse is sufficient to keep 
these reservists up to date in their proposed activities in the event we 
really do have a fast-breaking national wartime emergency ? 

Mr. Quixdlex. Our schedule calls for a 3-year cycle of national 
meetings. The one in September 1970 was cancelled primarily because 
of budgetary limitations. 

Mr. Mooriiead. What has been done within OEP to review the 
standby censorship system and bring it up to date? 

Mr. Quixdlex. We started a review approximately 15 months ago. 
I obtained the services of Mr. Xocita on a consultant basis. Tie was 
with a private research organization. And I gave him the assignment 
of reviewing all our plans and all our preparations in this area. I was 
directed to move on such a study by General Lincoln to determine 
how we should go, and what further preparations we should make. 
We have the study completed, and are now moving; we have reached 
certain conclusions about the necessity for a program, such as the 
greater attention to the nuclear war situation, and we are moving to 
implement the recommendations of the study. 

Mr. Mooriiead. Would you or Mr. Xocita give us some background 
as to whether he has had any work experience in the news media. 

Mr. Quixdlex. He has not had work experience in the media. 

John, would you give a resume of your experience. 

Mr. Xocita. Yes, sir. 

I am a retired military officer, U.S. Army, colonel. I retired at the 
end of 1968. I went to work at that time for Planning Research Corp. 
as a systems analyst. My background has been primarily in planning. 
I spent 3 years with the Planning Research Corp. as a systems analyst. 
I undertook this task from the viewpoint of a systems approach to 
the problem, and to make recommendations as to how best the program 
could be conducted. 

Mr. Mooriiead. Before 1968 your career was in the military? 

Mr. Xocita. That is correct, sir. 

Mr. Mooriiead. Regular Army \ 

Mr. Xocita. That is right, sir. 

Mr. Mooriiead. Have you consulted with newsmen to get their feel- 
ing of how this program should be put into effect ? 



29'd4 

Mr. Nocita. During my study Mr. Quindlen had occasion to talk 
to Mr. Koop. I did not personally interview any newsmen. In my 
review of the voluntary code, I came to the conclusion that it is a 
good code, and I made the recommendation that the news media should 
be brought in at the time that we wished to look at it in terms of any 
revision. 

Mr. Moorhead. I think it is very important, particularly in view 
of the fact that this is voluntary, that you do get the input of the 
news people, because, as Mr. Quindlen mentioned, technology, if noth- 
ing else, has changed since 1963. 

Mr. Nocita. Yes, sir; I recognized that and did make that recom- 
mendation. 

Mr. Moorhead. Who has the responsibility within OEP for over- 
seeing the standby censorship system? Is that you, Mr. Quindlen? 

Mr. Quindlen. I do, yes. And I have another member of my staff 
who actually sits in the same office with Mr. Nocita. He joined OEP in 
1961 from a position as chief of the Washington Bureau of Cox News- 
papers. And he does have 28 years of newspaper experience. Although 
lie doesn't have a prime responsibility here, we do call on his back- 
ground for suggestions as to associations and points of contact. 

Mr. Moorhead. And your background, Mr. Quindlen, does not in- 
clude any 

Mr. Quindlen. My background is 30 years of Government manage- 
ment and administrative experience, much of it operational. It includes 
a role in direction of disaster relief in Alaska, in typhoon Karen in 
Guam, hurricane Carta in Texas, and a responsibility for overall 
Government preparedness dating back to — my present level of desig- 
nation dates back to 1962. 

Mr. Moorhead. If the President declared a national wartime emer- 
gency with the imposition of censorship, how would the standby 
voluntary censorship code be disseminated to newspapers and broad- 
casting stations. 

Mr. Quindlen. We would put it on the UPI-AP wires immediately. 
In my judgment this would have to be done under any situation in 
which the President took such action, because prepositioned documents 
are difficult to keep handy. It is our estimate that we could have it avail- 
able to the newspapers and the broadcast stations within 45 to 60 
minutes. It would be primarily just the mechanics of the time of get- 
ting it out. 

Mr. Moorhead. Is it contemplated that in the event of such a na- 
tional wartime emergency that there would be the appointment of a 
director of censorship or wartime information security? 

Mr. Quindlen. Yes, our plans do call for that. And that person 
would be appointed by the President. 

Mr. Moorhead. Rut there has been no standby appointment? 

Mr. Quindlen. There has not. In our planning 

Mr. Moorhead. Has your office prepared a list of persons that the 
President can consider for appointment? 

Mr. Quindlen. We have a list of people we might consult for recom- 
mendations, but we do not have a list at this point. We could make up 
such a list of recommendation. The President would obviously have 
many, many sourees of recommendation including, if he wished, to 
turn directly to the public media associations himself. So, we might 



2965 

be called on to make a recommendation; I couldn't say at this point 
that it would occur. 

Mr. Moorhead. Frankly, Mr. Quindlen. I have two concerns after 
the staff study and your statement. One, that this might be a system 
that could be put into effect short of a very serious wartime situation, 
paricularly a national emergency rising from typhoons or strikes or 
something else. 

Mr. Quindlen. Xo, sir. 

Mr. Moorhead. In that event I was pleased that the program did 
not seem to be geared up to impose censorship. Second, in the event 
of attack, and particularly a nuclear attack, when the President will 
have many more important things to do than wartime censorship or 
control of defense information, I don't know that you are ready. It 
seems to me that, not having had a meeting of the reservists for a 
long time, and not having a director ready practically standing in the 
wings, so that you know exactly who it is going to be, that if we really 
and truly had a nuclear attack on this country from which anybody 
survived, that we are not really ready to move. So, that I look at it in 
two different ways. If you are only going to use it in the event of 
probably nuclear attack, I want you to be even better prepared and 
ready to move quicker than you even might appear to be. 

Mr. Quindlen. Mr. Chairman, as you know, this planning has gone 
on since World War II. I assumed responsibility for the program in 
1069. Previously it had not been a part of my responsibilities. One of 
the questions that concerned us is that we could be ready for a World 
War II situation and not be prepared for a nuclear war situation. And 
this is exactly the point we are trying to correct. Again, if is pretty 
clear to us that voluntary information security by the public media 
is going to be basically the voluntary code as it exists today and re- 
vised in conjunction with the public media organizations to make any 
changes, particularly those required by technology. For example, there 
is no sense in withholding weather information if the weather in- 
formation can be otherwise available from satellites or other sources 
of information. Again, it must depend on the judgment and willingness 
because the code is just a general guide of the people in the broadcast 
and press industries. And certainly they must be consulted, and we 
will consult with them. There is no intention, and never has been, in 
any of the planning in any of the years since World War II, for this 
program to be applied, except in a wartime situation. I think that some 
of the planning done between the end of World War II and 1969 was 
directed at a World War II type situation which doesn't deserve a high 
priority in terms of our planning. The most difficult situation for all 
planning is the nuclear attack contingency. Although improbable, it 
requires particularly careful planning and preparation. That is the 
kind of review and reemphasis and restatement we are trying to 
achieve in this program. 

Mr. Moorhead. Thank you, Mr. Quindlen. 

I am about to yield to Mr. Glide. But I think at this time I would 
live to administer the oath to both you and Mr. Xocita retroactively 
and p rospect i vely . 

Would you please rise ? 

Do you solemnly swear that the testimony you have given and are 
about to give this subcommittee will be the truth, the whole truth, and 
nothing but the truth, so help you God I 

76-253 — 72 — pt. 8 3 



2966 

Mr. Quindlen. I do. 
Mr. Nocita. I do. 
Mr. Moorhead. Mr. Glide ? 
Mr. Gude. Thank you, Mr. Chairman. 

Mr. Quindlen, you said that the last scheduled meeting- of the 
reservists was postponed due to budgetary reasons. 

Mr. Quindlen. Yes, it was primarily budgetary reasons. 
Mr. Gude. Was this initiated at your level, or was it OMB? 
Mr. Quindlen. It was initiated at our level. 
Mr. Gude. At your level ? 
Mr. Quindlen. Right. 

Mr. Gude. You felt that this had a low priority in regard to the 

Mr. Quindlen. One element w T as that the executive reserve program 
was being updated, because many of the executive reservists had been 
in the reserve program for many years. We were asking the various 
agencies of Government to look over their lists, to look for new people 
in the Reserves. The scheduled training for 1970, with the budgetary 
question of amounts of money available, and in light of the ongoing- 
review was just an inappropriate time. The next conference is sched- 
uled for November of next year. 
Mr. Gude. November of 19To ? 
Mr. Quindlen. Yes, sir. 

Mr. Gude. How many of those that are on the list of executive 
reservists have met since coming on board, have actually met at a pre- 
vious meeting '. 

Mr. Quindlen. Of the original group, I would say — I would have 
to consult the record on this — that of the original 26, all had met at 
one time or another, whether for the initial orientation meeting or 
subsequent national meetings. Of the remaining eight, I am sure that 
all of these have at one time or the other attended executive reserve 
meetings. 

Mr. Gude. In other words, all of the present membership has at- 
tended one or more sessions \ 

Mr. Quindlen. Yes, although I would have to check the record on 
that. 

Mr. Gude. I think that information would be helpful to us as to 
how many meetings these gentlemen have attended, and when. 
Mr. Quindlen. Yes. 

Mr. Gude. Mr. Chairman, may that be inserted in the record at this 
point? 

Mr. Moorhead. Without objection, it is so ordered. 
(The information referred to follows:) 

Background of National Defense Executive Reservists as of May 1972 

Cooper. Edward — Motion Picture Association of America. Inc.. Washington. D.C. 
Vice president of the MPAA. Extensive background and long familiarity with 
motion picture industry. 

Foss, Philip T. — Eastman Kodak Co.. Oak Brook, 111. Extensive experience in 
World War II wartime information security, both national and military. 

Koop, Theodore F. — retired. Washington, D.C. Former vice president, Columbia 
Broadcasting System. Extensive experience in World War II wartime informa- 
tion security. Was Deputy to Director Byron Price at end of World War II. 
"Broad experience in broadcast industry. 



2967 

Phillips, Robert Y. — retired, Beaufort, N.C. Former Director of Emergency Oper- 
ations Office, OEP. Supervised plans and programs in wartime information 
security until retirement in 1969. 

Scully, James W., Ill — retired Army officer, Delray Beach, Fla. Extensive back- 
ground in defense communications and special communications needs of war- 
time information security. 

Taff, James P. — Bureau of the Census, Washington D.C. Chief of Personnel Di- 
vision. Bureau of the Census. 

Taishoff, Sol .1. — Broadcasting magazine, Washington, D.C. Experience in pub- 
lishing broadcasting trade magazine with extensive knowledge of industry. 

Willis, Eugene — Western Maryland College. Westminster, Md. Broad experience 
in facilities management and maintenance. 

Xational Defense Executive Reservists Training 

Edward Cooper — initial orientation, 1967. Invited for training on two occasions 
but could not attend due to absence from United States. 

Philip T. Foss — initial orientation. 19G7. XDER training conference, 1967. 

Theodore F. Koop — 3 to 4 days per year, 1956-70. XDER training conference, 
1967. 

Robert Y. Phillips — XDER training conference. 1964. Extensive contact with 
program as Director, Government Readiness Office, OEP. 

James W. Scully III — initial orientation, 1967; invited to XDER training con- 
ference in 1967 but did not attend. 

James P. Taff — initial orientation, 1967; invited to XDER training conference in 
1967 but did not attend. 

Sol Taishoff — initial orientation. 1964 : XDER training conference, 1964; XDER 
training conference, 1965; invited to XDER training conference in 1967 but 
did not attend. 

Eugene Willis — initial orientation. 1966. XDER training conference, 1967. Fre- 
quent contact with OEP program officer. 

Mr. Gude. Then in the outline of the operating procedure which has 
been set forth for this unit, it is envisaged that it would only come 
into effect during a full scale war or a war which involved atomic 
attack? 

Mr. Quixdlex. Yes, sir ; that is true. 

Mr. Gude. In any of the domestic disasters in which your agency 
has been involved, or in Vietnam, has any consideration been given 
to engaging in planning or gaming in order to determine how your 
organization would operate under a given situation so that you 
could see if the plans actually would work in reality? 

Mr. Quixdlex. We run exercises, Mr. Gude, usually on an annual 
basis. But w r e have in no case related this program to the Vietnam 
situation or to any disasters or even to the Korean war. These have 
not been occasions for a review of this program, or for any considera- 
tion of application of the program. But we review on a regular basis, 
our readiness to move into position for nuclear attack warnings or 
nuclear attack situations. We review 7 the documents regularly. 

Mr. Gude. How are the executive reservists apprised of the results 
of your review T of, say, a particular exercise or a situation which you 
set up ? 

Mr. Quixdlex. "Well, our contact in connection with the exercises 
has been in the past with the director designate. We do not have a 
director designate now 7 . As I indicated earlier in testimony, we will 
be reviewing our preparedness with the various associations in the 
public media industry. 

Mr. Gude. Do I understand that you actually apply the program 
of your organization to a specific game plan for an atomic attack? 



2968 

Mr. Quindlen. We do this at least annually. 

Mr. Gude. At least annually ? 

Mr. Quixdlex. Yes, sir. 

Mr. Gude. For example, a simulated attack on an American city \ 

Mr. Quixdlex. Right. 

Mr. Gude. You say you formulate what the reaction and the sub- 
sequent actions of the agency would be. but how are the reservists 
geared into this? 

Mr. Quixdlex. The reservists are invited to some exercises, but not 
to others. We are presently planning an exercise for sometime next 
spring at which some reservists will be invited to participate. 

Mr. Gude. When was the last exercise you had of this kind. 

Mr. Quixdlex. Last fall. 

Mr. Gude. And how many reservists attended that exercise? 

Mr. Quixdlex. This was not an exercise that generally involved re- 
servists. I think that two or three of our field offices — we have 10 — 
did invite reservists to participate with them. But we had no re- 
servists participating nationally. 

Mr. Gude. By that you mean that they weren't reservists from this 
list? Are there reservists from regional lists? 

Mr. Quixdlex. Yes, there are regional reservists, but none of them 
in the wartime information security program. Our regions have re- 
servists who would assist them in other of their wartime functions. 

Mr. Gude. It seems to me there is a real gap in the involvement of 
the news media reservists in the activities of your program. 

Mr. Quixdlex. We certainly are in agreement that in our review of 
the program we have reached the point where we need to consult with 
public media representatives on the possible revisions in the code and 
the method of carrying out the code. 

Mr. Gude. Then you are thinking in terms of a news media commit- 
tee which would self-police the voluntary code \ 

Mr. Quixdlex. No, sir; not necessarily a committee, because, of 
course, there are associations which represent the nublishers, the news- 
paper editors, the weekly newspapers, and so on, but certainly confer- 
ences with and consultations with those groups in terms both of 
whether they see any difficulties with the code and how the code might 
be further distributed. 

Mr. Gude. To what extent has OEP issued rules and regulations on 
issues of censorship under section 501 of the Executive order. 

Mr. Quixdlex. Mr. Gude, section 501 of which order? 

Mr. Gude. Executive Order 11051, which prescribes the responsibili- 
ties of the Office of Emergency Planning and the Executive order of 
the President. It is section 501, general provisions. 

Mr. Quixdlex. We have published nothing in the way of regulations 
pertaining to the implementation of this program. There are regula- 
tions in many other of the areas covered by the Executive order, since 
our functions range all the way from disaster assistance under the 
Disaster Act of 1070 through the functions of imports threatening the 
national security. We have many regulations published on a wide 
variety of subjects. The basic directive for the wartime information 
security program is the plan which the chairman earlier asked us to 
submit. That is the basic plan covering this program. 

Mr. Gude. Do you mean the standby Executive order ? 



2969 

Mr. Quixdlex. We have a plan, a proposed standby Executive order, 
and a proposed standby piece of legislation. 

Mr. Gude. Yon say that from time to time there are orders which 
provide for regulations in several different areas, and one of these areas 
happens to include censorship of news media, is that the idea '. In other 
words, provisions regulating the news media arc scattered through it? 

Mr. Quixdlex. No, sir; in a standby program such as this we do not 
publish in advance regulations in the Federal Register. We have a 
plan, and a proposed standby Executive order, and a proposed standby 
piece of legislation. But there are no published regulations on any of 
our standby programs, because these are programs which may or may 
not ever come into effect, and on which the regulations would be issued 
at the time the organizations came into being. The Executive order 
would be issued, the legislation would be proposed at the time they 
are needed. 

.Mi'. Gude. So. the standby order contains regulations on censorship, 
but this would not be published in the Federal Register until the 
time 

Mr. Quixdlex. Until the time it was needed; yes, sir. 

Mr. Gude. Are the executive reservists aware of the provisions in 
this standby Executive order \ 

Mr. Quixdlex". Yes. 

Mr. Gin;:. And they are apprised of this \ 

Mr. Quixdlex. Yes. 

Mr. Gude. What mechanism is there for feedback as far as their 
views on this are concerned ( 

Mr. Quixdlex". We solicit, at the time reservists are appointed, any 
suggestions they have about the programs. I think that the training 
sessions should be more of a mechanism for getting these comments, 
and for reviewing the program, than they have been. And I am sure 
that our national conference next year will offer such a mechanism. 
However, I am more interested in the review and comment by the in- 
dustry representatives as a whole to be sure that we are getting the 
views of the various parts of the public media industry. 

Mr. Gude. You say you are more interested in what the reaction of 
the news media as a whole is ? 

Mr. Quixdlex. Right. 

Mr. Gude. By what mechanisms would you obtain this ? 

Mr. Quixdlex". By consultation with the various associations, the 
publishers, the newspaper editors, the various groups representing 
publishers and broadcasters. 

Mr. Gude. And how does this consultation take place ? 

Mr. Quixdlex*. Well, as I indicated earlier in my testimony, it has 
not taken place recently. We have been doing a thorough review of the 
program. I will consult, with members of my staff, with the various 
associations, asking them for their comments on the code and for their 
comments on the distribution of the code and any changes they might 
think necessary. 

Mr. Gude. Is this a piecemeal review, or would this all take place 
within a short period of time \ 

Mr. Quixdlex". We haven't determined whether we will meet with 
them individually or in groups. We may do both. We may provide the 
information in advance, and then consult with them individually or 
have a meeting of the whole. We haven't determined that. 



2970 

Mr. Gude. And you sa3' that this process lias not taken place for 
Some time now ? 

Mr. Quindlen. It has not. 

Mr. Gude. When was the last time this took place ? 

Mr. Quindlen. The last time was in 1963. 

Mr. Gude. Was in 1963? 

Mr. Quindlen. Yes. 

Mr. Gude. And what was the reaction of the news media at that 
time ? 

Mr. Quindlen. They had very few comments to offer on the code, 
and were generally in support of the code — were entirely in support of 
the code. They had very few comments to offer, and for this reason 
there hasn't seemed to be a particular need to question whether the 
code is an adequate code. I personally feel that it is an adequate code. 

Mr. Gude. You personally feel that it is ? 

Mr. Quindlen. That it is an adequate code. 

Mr. Gude. Have any of the standby reservists objected to it, to the 
plan, the voluntary code, or the Executive order ? 

Mr. Quindlen. No, sir. 

Mr. Gude. Thank you, Mr. Chairman. 

Mr. Moorhead. Mr. Cornish. 

Mr. Cornish. Thank you, Mr. Chairman. 

Mr. Quindlen, you have testified that there is a standby Executive 
order to be issued by the President. 

Mr. Quindlen. Yes, sir. 

Mr. Cornish. And you have agreed to provide a sanitized version 
of that for the subcommittee. 

On what statutory or other authority is that proposed Executive 
order based ? 

Mr. Quindlen. In our emergency preparedness we operate on two 
contingencies within the nuclear war situation. One is where nuclear 
attack might come suddenly, with the Congress not available, Congress 
not in session, in which case the President might have to act on his 
inherent constitutional powers. But the basic assumption is the sub- 
mission of legislation which would call for the establishment of the 
office and authority for the President to carry out the program. This is 
the primary and preferred method of operation in any case. 

Mr. Cornish. So, that is the purpose actually of the standby 
legislation ? 

Mr. Quindlen. That is right. And it offers alternatives, either as 
a piece of legislation, or as an Executive order, depending upon the 
circumstances. This has been the basis of planning this alternate ap- 
proach, for the past 20 years. 

Mr. Cornish. When you speak about the President's constitutional 
powers, I assume you are referring to the section dealing with his 
responsibilities as Commander in Chief ? 

Mr. Quindlen. That is right. 

Mr. Cornish. And also his responsibility to protect the public 
safety. 

Mr. Quindlen. Eight. 

Mr. Cornish. I think it is interesting that in this connection Justice 
White said in his concurring opinion on the New York Times Pentagon 
papers case: "When the Espionage Act was under consideration in 



2971 

1917, Congress eliminated from the bill a provision that would have 
given the President broad powers in time of war to proscribe under 
the threat of criminal penalty the publication of various categories 
of information related to the national defense. Congress at that time 
was unwilling to clothe the President with such far-reaching powers 
to monitor the press." 

Xow, do I assume correctly that the reason that this code is voluntary 
is because of that fact ? 

Mr. Quindlen. I can't say that, Mr. Cornish. I really hadn't con- 
sidered that point. I would say that it is voluntary, because that is the 
nature of our press and broadcast system, and that is the way it is 
going to operate. If it operates, that 'is the way it is going to operate 
best. In fact, we have never considered anything but a voluntary code. 

Mr. Cornish. I wonder if you might consult with the counsel of 
the Office of Emergency Preparedness on that point and submit a 
brief statement on it for the record — if that is appropriate, Mr. Chair- 
man. 

Mr. Quindlen. Yes, sir. 

Mr. Moorhead. Can you do that, Mr. Quindlen ? 

Mr. Quindlen. Yes. 

Mr. Moorhead. Without objection, it is so ordered. 

(The information referred to follows :) 

Executive Office of the President, 
Office of Emergency Preparedness, 

Washington, B.C. 
Date : May 19. 1972. 

Subject : Wartime Information Security Program. 

To : Mr. Eugene J. Quindlen, Assistant Director for Government Preparedness. 
You requested information as to the reason from the point of view of the 
Office of the General Counsel, for the limitation for all plans and draft legis- 
lation concerned with the wartime information security program to voluntary, 
rather than mandatory, treatment of the press and communications media. 
To our knowledge, this agency as a whole, as well as the Office of the Gen- 
eral Counsel, has considered any attempt at mandatory control of the press and 
the media not only to be unworkable, but so inimical to fundamental freedoms 
as to be completely beyond the proper scope of our consideration. 

Therefore, the fact this agency has refrained from any planning or draft- 
ing of standby documents which would impose other than voluntary measures 
in this area is based upon considerations that go beyond the legislative history 
of tbe Espionage Act. 

Elmer F. Bennett, 

General Counsel. 

Air. Cornish. Mr. Quindlen, what role will you play if the button 
is ever pressed and the missiles start coming? I am thinking especially 
about the wartime information aspect of the thing. 

Mr. Quindlen. In a buildup period, I have many functions, and the 
staff working for me have many functions relating to our readiness 
to carry out our overall responsibilities. In this area, and the question 
of whether we move to readiness to carry out this program, I look pri- 
marily to Mr. Nbeita. And we have in our emergency actions some 
actions specifically pertaining to this program, to include the dissemi- 
nation of the code by means of the UPI and AP lines, but I have no 
role in the administration of the program when implemented. We will 
have a role in seeing that the arrangements necessary to get it into 
operation are carried out. I will not have a role in its administration. 

Mr. Cornish. Maybe you can answer this. To whom is the wartime 
information director £oin<r to be responsible ? 



2972 

Mr. Quindlen. To the President. 

Mr. Cornish. Directly to the President ? 

Mr. Quindlen. Directly to the President. 

Mr. Cornish. No layer in between there ? 

Mr. Quindlen. None. 

Mr. Cornish. That is very interesting. 

Now, I think it was your testimony that in the event of such a war- 
time attack that you would have transmitted over the Associated Press 
and United Press International wires the text of the code and other 
necessary instructions in documents, is that correct \ 

Mr. Quindlen. Yes. I address myself primarily to the code, because 
that is the document that local press and broadcast people would use. 

Mr. Cornish. And you would in all probability transmit the Execu- 
tive order, too; would you not? 

Mr. Qitindlen. Depending on the circumstances. That mav not be 
particularly appropriate. It may be enough to say that the Congress 
has passed legislation or the President has taken certain action, that 
might be sufficient. 

Mr. Cornish. I think you said it would take approximately 45 
minutes. 

Mr. Quindlen. We haven't run a test on this, but I think that is 
what it would take. 

Mr. Cornish. Do you have an agreement with the wire services to 
transmit that information if such an event actually occurred? 

Mr. Quindlen. We have communications arrangements with the 
wire services — we have certain emergency ties with the wire services. 
And, of course, we put material on the wire services, information- 
type material in or daily operations that they pick up regularly. We 
do not have a specific agreement to transmit the voluntary code. I 
have not explored this with the wire services. 

Mr. Cornish. The reason I ask this is because their facilities are 
limited and heavily taxed, and I can imagine in an attack situation, 
that their wires would be extremely heavy, with voluminous copy 
beinff transmitted on the attack itself, and informing the American 
people and press of what was going on. So here we hove 45 minutes 

of copv 

Mr. Quindlen. I was talking about the time necessary to complete 
the actions. This certainly is not 45 minutes of copy. The code itself 
is a relatively brief document, As a matter of fact, it is so basic in terms 
of the guidance included in it that I am sure even in those places that 
do not have it, it would not be received as a surprise. 

Mr. Cornish. When you speak of 45 minutes, in other words, you 
are counting the time it takes to run a copy over from the Office of 
Emergency Preparedness ? 

Mr. Quindlen. No, sir; we have communications in our own build- 
ing. We have excellent emergency communications. I was talking 
about the total time required from the point when we first determined 
that it was necessary to the point that we would be assured that the 
recipients at the end of the line actually had it. 

Mr. Cornish. I hope you are not telling me that you can actually 
break into a news agency's line and take over 



2973 

Mr. Quindlen. No, sir. We would provide it to them for transmis- 
sion. I am sure this would be a very, very important item of news for 
them. 

Mr. Cornish. But they don't have it now ? 

Mr. Quindlen. They do not have it now. 

Mr. Cornish. How long do you think it would take a nuclear mis- 
sile to cross either the Atlantic or Pacific Oceans and strike the United 
States? 

Mr. Quindlen. Well, the estimates on time, depending on the cir- 
cumstances, range from 15 to 30 minutes, in terms of time from first 
warning of takeoff. 

Mr. Cornish. So, it is very possible that the missile could strike at a 
number of major industrial centers, and other cities, prior to the time 
t hat tli is material was transmitted ? 

Mr. Quindlen. No, sir. We regard it as highly improbable that at- 
tack without warning could occur. 

Mr. Cornish. It did, I think, once before, if you will recall. 

Mr. Quindlen. It did, there is no question about it, in a day of dif- 
ferent technology, it certainly did. 

Mr. Cornish. But human nature hasn't changed that much since 
then ; has it ? 

Mr. Quindlen. It has not ; no. 

Mr. Cornish. Is there any reason why the standby legislation 
couldn't be passed in advance, so that you won't have to run through 
this exercise sort of after the fact ? 

Mr. Quindlen. That is a question that has been considered often 
over very many years. I think it is difficult, with the press of other 
day-to-day matters — and take the many matters with which this com- 
mittee is concerned — to present something for congressional action 
which might seem highly unlikely, highly improbable, and which 
doesn't seem to have any particular relationship to any situation but 
nuclear attack. 

Also, the fact that it becomes legislation means that if you want to 
make any changes in the future, they would have to be legislated, 
changes. 

We feel that it is more appropriate to have standby legislation, 
which hopefully will never have to be used, but would be presented to 
the Congress when the situation arose. 

Mr. Corn is it. You also said that to augment the Standby Reserve 
you would turn to the press associations and other media groups for 
personnel and expertise. 

Mr. Quindlen. Right. 

Mr. Cornish. Has any arrangement been made with those groups 
so that they themselves have designated personnel within their organi- 
zations to do this sort of thing ? 

Mr. Quindlen. No, sir. This certainly would be part of the dis- 
cussion which I indicated we will be carrying on with these groups. 

Mr. Cornish. So this is going to be part and parcel of the dis- 
cussions which will be carried on 3 or 4 months from now ? 

Mr. Quindlen. Right. 

Mr. Cornish. Thank you, Mr. Chairman. 

Mr. Moorhead. Mr. Gude ? 



2974 

Mr. Gude. Mr. Quindlen, last year the Army inadvertently made a 
mistake in sending out a message which implemented the Conelrad 
system. You recall that affair? And what happened, in effect, was that 
a message went out advising certain radio stations to go off the air and 
others to shift over to the Conelrad system. 

Is that, in effect, what happened there ? 

Mr. Quindlen. Yes. sir. Actually it was a notification of the imple- 
mentation of plans under the emergency broadcasting system, which is 
a successor to the Conelrad program. That is right. Actually, as I 
recall the circumstances, a wrong tape was used to transmit a message 
which indicated that the emergency broadcast system was to be 
activated. 

Mr. Gude. Was that a voluntary stricture that was put on the 
station, or was it 

Mr. Quindlen. This is a program in which the broadcast industry- 
has been cooperating with the Government to make available to the 
President, in time of national emergency, their facilities so that the 
President can reach the people. It is a voluntary arrangement on 
which an industry advisory group has been working. There are desig- 
nated stations which are part of the system. There are communications 
links to these stations. This was a message alerting those stations that 
the system was going to be put into effect. And, of course, it was 
erroneous. 

Mr. Gude. When this takes place are some stations advised to go 
off the air as well as some stations to shift over and make their facili- 
ties available to the Executive ? 

Mr. Quindlen. As I recall — and I don't have particular responsi- 
bility nor does our agency for this program — there are certain stations 
which are used to carry the President's speech, because of the extent 
of their coverage. But it is not my memory that the original restric- 
tions of Conelrad apply any longer. You may recall, the Conelrad 
program was a program designed to restrict navigational aids by hav- 
ing almost all stations go off the air. I don't think the same plan 
applies today. 

John, do you have any comment on that ? 

Mr. Nocita. I have nothing further to offer on that, Mr. Gude. As 
Mr. Quindlen said, it is a program outside the functions of our agency. 
It is intended primarily to afford the President the opportunity to 
reach the American people in the event of a major catastrophe, such 
as a nuclear attack. 

Mr. Gude. Did I understand, Mr. Quindlen. that the reservists have 
approved this, your reservists have reviewed this program and ap- 
proved it? 

Mr. Quindlen. Yes, sir. The wartime information security pro- 
gram has been reviewed many times. And, of course, many of the 
original reservists who reviewed it were people who had worked in 
the program in World War II when substantially the same voluntary 
code was used. 

Mr. Gude. In a sense many of these reservists are wearing two hats. 
in that they are familiar with or responsible for this program as it 
goes through the military as they are for the one that goes through 
your organization ; is that correct ? 

Mr. Quindlen. !NTo, sir. The reservists who have been in this program 
have had no relationship to any military activities in connection with 



2975 

this. This part of the program is strictly civilian, strictly the public 
media, strictly a voluntary code. 

Mr. Gude.* But it is implemented or triggered by the military, an 
action of the military ? 

Mr. Quin dlen. No, sir. The military situation might lead to its trig- 
gering, but if you are referring to the emergency broadcast system, 
that is triggered by the White House specifically. And if you are talk- 
ing about the wartime information security program, again a deter- 
mination is made by the President as to whether the program should 
be implemented. 

Mr. Gude. So when the wrong tape was put on the air in effect — this 
individual was not acting on behalf of the military, he was acting on 
behalf of the White House ? 

Mr. Quindlen. Yes. As I recall, it was a regular test. His responsi- 
bility was to run a regular test. And he took a real tape instead of a 
test tape. 

Mr. Gude. I understand that. But the chain of command comes from 
the White House, not from the military. 

Mr. Quindlen. That is right. As I recall in that particular instance 
nobody told him to put that tape on. He put it on as a part of his 
regular procedure. The chain of authority for the emergency broadcast 
system is quite clear. The emergency broadcast system is operated by 
the White House. 

Mr. Gude. It wasn't the President that made the mistake ; I under- 
stand that. But if it were done for real it would be because of an action 
of the White House? 

Mr. Quindlen. Right. 

Mr. Gude. Thank you, Mr. Chairman. 

Mr. Mooriiead. Mr. Copenhaver ? 

Mr. Copenhaver. Mr. Quindlen, to pursue a question that Mr. Gude 
was developing here, I must say I am quite surprised that there ap- 
pears to be no coordination by or no authorized input by your organi- 
zation into the emergency radio system. 

Mr. Quindlen. The emergency broadcast system? 

Mr. Copenhaver. The emergency broadcast system. Can you explain 
that ? Because it seems so closely related to a form of censorship, a form 
of control over the news media. 

Mr. Quindlen. No, sir ; there is no control involved in it. As a mat- 
ter of fact, the President does have an Office of Telecommunications 
Policy, as part of the Executive Office. We certainly have had some 
involvement in the planning for the emergency broadcast system, but 
we do not have responsibility for it. The emergency broadcast system, 
which again is not a responsibility of our Office, is intended solely to 
make a broadcast capability available to the President to reach the 
people, and is not censorship in any form. 

Mr. Copenhaver. Does the Office of Telecommunications constitute 
the office of the White House which has direct control over the 
emergency broadcast system in your opinion ? 

Mr. Quindlen. That is my understanding. 

Mr. Copenhaver. To your knowledge have they laid down any rules 
or regulations, or do they have any standby plans with regard to the 
operation of the emergency broadcast system ? 

Mr. Quindlen. Since this is a part of a program, not a part of our 
Office, I would prefer instead to submit from the appropriate parties 



2,976 

a description of the emergency broadcast system. I didn't come pre- 
pared to discuss that, since that wasn't within the request of the com- 
mittee. 

Mr. Copexhayer. I will ask the chairman for permission for you 
to do that. My question was prefatory to another question, and there- 
fore I was merely asking you for your current knowledge on that, the 
basis being that if the Office of Telecommunications has the authority 
or lias in fart entered into rules and regulations or prepared standby 
authority for the operation of the emergency broadcast system, this 
could potentially be a means of regulating, voluntarily or otherwise, 
the communications network, which in essence would mean that we 
have thereby established a dual arrangement, voluntarily or otherwise, 
for news media communications. If that be the case, of course, it would 
be of value to the committee to determine what those standby rules 
and regulations on telecommunications are. But more important, I 
think I detect perhaps a breakdown of coordination, which I might 
say T am not blaming anybody for. 

Mr. Qtjixdlex. T don't think either situation obtains. I consider that 
the work on the emergency broadcast system with the industry has 
been complete and thorough. With great cooperation from the indus- 
try, there has been established by the FCC with the industry a Na- 
tional Industry Advisory Committee which is advisory on this point. 
This is voluntary participation by the industry, and doesn't constitute 
control in any way. I think in addition that the coordination on it has 
been quite thorough. 

Mr. Copenhaver. Mr. Chairman, what Mr. Quindlen suggests that 
he provide for the record is a description of the operation of the 
emergency broadcast system by the^ Office of Telecommunications 

Mr. Qtjixdlex. There are various agencies involved — the FCC in 
particular, the industry, and the Office of Telecommunications Policy. 
I would be glad to submit a statement that covers the general opera- 
tion of the program. 

Mr. Moortiead. Without objection the statement will be received and 
made a part of the record. 

(The statement referred to follows :) 

The Emergency Broadcast System (EBS) 

1. The Emergency Broadcast System (EBS) was established in 1962 to super- 
sede the Conelrad System. 

2. The purpose of this system is to allow the President to speak to the public 
throughout the continental United States via the commercial broadcast net- 
works, on a 5-minute notice basis, regardless of his location. 

3. In 1971. the White House designated the Office of Telecommunications Policy 
(OTP) as the office responsible for developing the Emergency Broadcast System 
to the fullest potential, reviewing plans, and coordinating requirements of the 
Federal departments and agencies in support of the EBS. In short, the Office of 
Telecommunications Policy (OTP) establishes the official White House EBS 
requirements and policies, based on Presidential needs, and monitors the system. 

4. The Federal Communications Commission (FCC) is responsible for formula- 
tion and publication of pertinent rules and regulations required by industry to 
operate the Emergency Broadcast System when requested by the President. 

5. The Office of Emergency Preparedness (OEP) is responsible for provision 
of those communications facilities required to notify the industry (broadcasters, 
commercial common carriers, and the news services) to activate and deactivate 
the EBS, and specified program feed facilities which originate at the White 
House and other locations. 



2977 

6. The telecommunications industry (broadcast, common carrier, and news 
services) furnish those broadcast, interconnect, facilities, and news dissemina- 
tion services required for the EBS on a voluntary basis in coordination with 
the designated Government agencies. Participating in KISS operations is a Broad- 
cast Services Subcommittee which is a part of the National Industry Advisory 
Committee (NIAC). The subcommittee is composed of representatives of the 
major networks and the Nation,;! Association of Broadcasters, all of whom 
cooperate with the Federal Government and play an active, positive role in the 
operations of the EBS. 

7. The revised system now being installed will provide greater survivability 
and accuracy and is designed to preclude inadvertent erroneous transmissions 
such as that experienced in February 1971. 

Mr. Copenhaver. Could I get from you again, sir, a brief descrip- 
tion of what is in the plan, in the standby plan. 

Mr. Quindlen. The standby plan discusses the organization, the 
various elements of the program, the general procedures for imple- 
menting the plan, and a few indications of the operation of the war- 
time agency. It is a general plan regarding the manner in which the 
agency would be brought into being, and would carry on its functions. 

Mr. Copenhaver. Is that classified, did you say ? 

Mr. Quindlen. Yes ; primarily because of some classified informa- 
tion about operational activities and centers from which the organiza- 
tion would operate. 

Mr. Copenhaver. Aside from the standby Executive order, the 
standby legislation and plan, is there any other information within 
your agency having to do with the voluntary censorship program or 
the wartime information security program which is classified* 

Mr. Quindlen. John. 

Mr. Nocita. I am not sure I understand the question. 

You say is there anything else classified % Of course, there are numer- 
ous correspondence and memorandums and things of that type accu- 
mulated over the years. But if you are referring to specific published 
documents, I would say no. Those are the three major documents that 
govern the program. 

Mr. Moorhead. Any further questions, Mr. Gude? 

Mr. Gude. No. 

Mr. Moorhead. Mr. Cornish? 

Air. Cornish. Thank you, Mr. Chairman. 

Mr. Quindlen, when I was questioning before, I mentioned the trans- 
mission of the voluntary information, wartime information. I am a 
little lost as to what we call this thing now. 

Mr. Quindlen. I personally don't like the term "censorship." And I 
don't think it is apt. But it is certainly an easier term than "wartime 
information security program." 

Mr. Cornish. I was asking questions on the transmission of the code 
and other instructions. And I think you responded to me when I was 
wondering how this would compete on the news wires with all the 
flashes and bulletins and so forth — you said that it would be a very 
important item of news for them. And I gather you were indicating 
by that that it would be fully competitive with what news would be 
transmitted at the time. 

Mr. Quindlen. One of the things that we have learned in 25 years 
of emergency planning and emergency preparedness is that it is very 
difficult to reproduce the situation and to live through what might be 
taking place. I would say that this would be an item that would be of 



2978 

sucli interest to broadcasters and the press that it would certainly be 
competitive. But again, since we can't reproduce the situation, obvi- 
ously we can't make a complete flat statement on its competitiveness. 

Mr. Cornish. Why can't you transmit it to them from time to time, 
say, on a hold basis in the event of an emergency ? 

Mr. Quindlen. You can. And certainly one item we will consider 
in our meeting with the various public media associations is how the 
voluntary code can be best transmitted. I would certainly not consider 
it appropriate, for example, to transmit it today. It would be regarded 
as having a special meaning in relation to the facts of this week, or 
this day, or this afternoon. This is one of the difficulties in the whole 
question of legislation. 

Mr. Cornish. In other words, you would have to pick a rather 
quiet time ? 

Mr. Quindlen. Yes. And if you pick a quiet time, or use it in exer- 
cises, people will say there is no apparent problem now so why are 
they doing it now ? 

Mr. Cornish. Is there also the danger that you might get into a 
"War of the Worlds" Orson Welles-type thing, too ? 

Mr. Quindlen. We are very careful in exercises, for example, always 
to label everything — every message in an exercise has to read "Exer- 
cise," the first word and the last word, because this is a continuing 
problem. 

Mr. Cornish. Did I understand that the proposed legislation is 
classified, or just a part of it. 

Mr. Quindlen. My memory is not complete on that. 

John, do you recall? 

Mr. Nocita. I cannot answer that either. I would have to go back 
and look at it within the context of the entire document in which it is 
contained. 

Mr. Quindlen. I feel certain that we can furnish you the legislation 
on an unclassified basis. 

Mr. Cornish. If a portion of it is classified for some reason, can 
you tell me whether that would be classified under Executive Order 
10501? 

Perhaps Mr. Nocita can answer that better. 

Mr. Quindlen. Yes. It would have to be under that Executive order 
as a matter affecting the national defense, as it is listed in the exemp- 
tions in the Freedom of Information Act. In the matter of classifi- 
cation I would say that at most it would be classified confidential. 

Mr. Cornish. But even under that classification it would have to 
be of such a nature to damage the national defense of the United 
States. 

Mr. Quindlen. Yes. And we will take a look at that. I feel confi- 
dent that we can submit that piece by itself as an unclassified matter. 

Mr. Cornish. Thank you, Mr. Chairman. 

Mr. Moorhead. Thank you very much, Mr. Quindlen and Mr. 
Nocita. We appreciate your testimony. It has been a great help to 
the subcommittee. 

(Sundry correspondence and material relative to the hearings 
follow :) 



2979 

Foreign Operations and Government 

Information Subcommittee, 
Washington, D.C., June 26, 1972. 
Hon. George A. Lincoln, 
Din otor, Office of Emergency Preparedness, 
Washington, B.C. 

Dear Mk. Lincoln : As you know, the Foreign Operations and Government 
Information Subcommittee received testimony last month from officials of the 
Office of Emergency Preparedness on plans for the control of information in 
potential national emergency situations. This hearing was part of the subcom- 
mittee's overall hearings on information policies and practices of the executive 
branch of our Government. 

Last week. I directed the staff of the subcommittee to investigate the alleged 
involvement of one of the suspects in the attempted "bugging*' of the Democratic 
National Committee headquarters in activities of the special analysis military 
reserve unit of OEP. 

Meetings were held by the staff with Mr. David O. Cooke, Principal Deputy 
Assistant Secretary of Defense (Administration), and with Mr. John W. Nocita 
of your staff, who is responsible for the formulation of the broad scope of the 
special analysis military reserve unit's program activities and for OEP's co- 
ordination with that unit. 

Since this aspect of the OEP and DOD plans for implementation of the war- 
time information security program had not been mentioned or dealt with in any 
way during our May 12 hearings or staff meeting prior to the hearing, we would 
appreciate having a response to this letter for inclusion in the hearing record, 
covering the following subject areas : (1) a description of the role of OEP under 
its agreement with DOD for the operations of the special analysis military reserve 
unit ; (2) a description of the various training programs and objectives of the unit 
since its inception; (3) the date when the unit commenced its operations; and 
(4) other details of that subject as discussed during the staff conference with 
Mr. Xocita. 

Your cooperation in this matter will be appreciated so that the hearing record 
can l>e complete on this additional subject area of the program. 

With best regards, 
Sincerely, 

William S. Moorhead, Chairman. 

Executive Office of the President, 

Office of Emergency Preparedness, 

Washington, B.C., July 7, 1972. 
Hon. William S. Moorhead, 

Chairman, Foreign Operations and Government Information Subcommittee, Com- 
mittee on Government Operations. Washington, D.C. 
1 >ear Mr. Chairman : This is in reply to your letter of June 26, 1972. 
General Lincoln has asked me to respond to your letter as it is related to mat- 
ters in my area of responsibility. 

The information you have requested regarding the special analysis division, a 
military reserve unit associated with the wartime information security program, 
is enclosed. Additional information on the training programs of this unit is being 
collected and will be forwarded by July 10, 1972. 
Sincerely, 

Eugene J. Quindlen, 
Assistant Director for Government Preparedness. 
Enclosure. 

Answers to Request for Information by Chairman, House Government 
Information Subcommittee 

1. A description of the role of OEP under its agreement with DOD for the 
operations of the special analysis military reserve unit : 

The Department of Defense, by a 1963 agreement with OEP, has peacetime 
preparedness responsibility for the postal and travelers, telecommunications, 



2980 

and special analysis aspects of wartime information security. These functions, 
which involve only communications crossing the borders of the United States, 
would, in time of war, be carried out by the Secretary of Defense until the 
Wartime Information Security Office was operational. DOD carries out these 
peacetime responsibilities through military reserve units. 

The Special Analysis Division (SAD) is one such military reserve unit, com- 
posed of officers from the Army, Navy, and Air Force. This unit would be a 
major element of a Wartime Information Security Office, when activated, as it 
would have the function of coordinating the information collection effort of na- 
tional wartime information security. 

The Division meets monthly at OEP Headquarters, the Executive Office Build- 
ing Annex, but is under the jurisdiction of the Department of Defense. 

By written agreement with the DOD, the OEP furnishes policy and training 
guidance to DOD, a coordinator to serve as liaison between OEP and DOD for the 
WISP, and training space for the military reserve unit. 

(>EP provides to the SAD. as well as other DOD elements of the program, 
broad policy and training guidance related to WISP planning objectives. The 
provision of policy and training guidance by the OEP program officer is a 
primary coordinating mechanism for all elements of the WISP assigned for 
peacetime planning and training to the Secretary of Defense. Internal supervision 
and training of the Special Analysis Division remain a responsibility of the Sec- 
retary of Defense. 

2. A description of the various training programs and objectives of the unit 
since its inception : 

The objectives of the Special Analysis Division have remained unchanged since 
the unit was initially organized. As stated, the primary function of the SAD 
is the coordination of the information collection effort of national wartime 
information security. It is connected with planning for the coordination of 
the collection activities of the operating elements (i.e. postal and telecom- 
munications) of the wartime information security program with the require- 
ments of the user elements of the program. To further clarify the functions of the 
SAD, an organizational and functional chart which portrays the activities of this 
unit is enclosed. 

Training activities of the SAD since its inception have been in support of the 
functions listed in the enclosed chart. Additional detail which will provide spe- 
cifics of that, training is being collected and will be forwarded by July 10. 1972. 

3. The date when the unit commenced its operations : March 1960. 

4. Other details of the SAD as discussed during the staff conference : 

The wartime information security program, if implemented in wartime, would 
l»e a civilian program with the present military reserves identified with the 
program activated to serve as a cadre until the director of wartime information 
security could determine when they could be released for other military duty. 
In the case of the Special Analysis Division, the activities associated with this 
unit, when activated, would remain at the headquarters of the director of wartime 
information security. The unit would be responsible for the specialized functions 
of coordinating the needs of the users of the program (i.e. information directly 
related to the war), and the collection of information from international com- 
munications by the postal and telecommunications elements of the program: to 
provide data processing techniques and operations in support of the wartime 
information security program; and to provide for the technical analysis require- 
ments of the wartime information security organization, and in performing 
liaison for technical operations with user agencies. 

Testimony related to the activities of the military reserve units associated 
with the wartime information security program was given in both closed and 
open sessions before the House Foreign Operations and Government Information 
Subcommittee in 1963. The director, OEP, at that time, in his classified testimony 
before an executive session of the subcommittee described the Special Analysis 
1 dvision and the activities of that unit. 

In addition, the subcommittee was provided with an unclassified version of 
the basic plan for the wartime information security program on May 25, 1972. 
Included in sections .". 6, and 7 of chapter II of the plan submitted by me 
to the subcommittee for the hearing record, are direct references to the military 
reserve units in support of the WISP. 



2981 



LIAISON STAFF | 



SPECIAL ANA '."SIS DIVISION 



To maintain liaison with usir agencies &H Jtliei 
earning requirements Eor eo'.'.cctiod, denial, nd allo- 
cation o£ ; ' - ■ obtai Hid tin ugh postal, 
mid lulccottrouTi ications WIS; :o pre; ire, i 

uicli ■ £ a National K.Mi ili r 
to allocate the WIS product; to establish pollci' 

■:ic. Mic- £or techi ten] 
Eor centralized Lcchnica] aialy it and .. i . 
V.,c '.vJ.S organ iK.it ion; to pr 

11 I i ;■ r.i I ' ' 

lin a cei Lral file i 

progress and a 
reports and 




] REQl'IRENENTS A::i> ALLOCATIONS 

bra::ch 



r 






Executive Office of the President, 

Office of Emergency Preparedness, 

Washington, D.C., July 10, 1972. 
Hon. William S. Moorhead, 

Chairman. Foreign Operations and Government Information Subcommittee, Com- 
mittee on Government Operations, Washington, B.C. 
Dear Mb. Chairman : This has further reference to my letter of July 7. 1072. 
Additional information on the training programs and objectives of the Special 
Analysis Division, a military reserve unit associated with the wartime informa- 
tion security program, is enclosed. 
Sincerely, 

Eugene J. Quinulen. 
Assistant Director for Government Preparedness. 
Enclosure. 

Additional Information in Response to Request by Chairman, House 

Government Information Committee 

A description of the various training programs and objectives of the Special 
Analysis Division since its inception : 

It was recognized in the late 1950's that while the military reserve postal and 
telecommunications elements of the wartime information security program were 
progressing satisfactorily in developing plans and training in their areas of re- 
sponsibility, that plans for the program did not adequately provide for the 
coordination of the information collection effort. Arrangements were made in 
1960 jointly with the Department of Defense to establish a small interservice 
unit (Special Analysis Division) to prepare plans for the coordination of the 
operating elements of the wartime information security program with the re- 
quirements of the user elements of the program. 

In the early period of the training activities of the Special Analysis Division, 
efforts were directed toward the drawing up of guidelines for the organization 
and function of the unit. This resulted in the publication, in May 1961. of an 
organization and function chart which has remained relatively unchanged in 
relation to the chart previously forwarded. The only changes noted between the 
organization and functions prescribed in May 1961, and those in use today, are 
as follows : 

1. Wartime information security has been substituted for censorship. 

2. The Data Processing Branch was previously called the Automatic Data 
Processing Branch. 



pt. 8 



2982 

3. The 1961 organization bad another branch called the Operational Serv- 
ices Branch. This branch was eliminated in 1903 when its functions were 
transferred to the Data Processing Branch. 
Training activities of the Special Analysis Division have been in support of the 
functions first defined in 1961 and which remain unchanged today. As a planning 
staff, considerable effort has been expended by members of the unit to develop 
a body of written plans and procedures for use by the Director of Wartime 
Information Security for activating this function, should the program be im- 
plemented. This has been an extremely large task as the Special Analysis Divi- 
sion's "World War II predecessor organization did not leave behind a body of 
written plans and procedures which could be used as a starting point for revision 
and updating. 

Illustrative of training activities of the Special Analysis Division are the 
folio win-- : 

December 1963 — Tasks underway within the unit: 

TECHNICAL OPERATIONS BRANCH 

1. Develop subcourse for active duty technical operations training for summer 
encampment. 

2. Prepare a correspondence subcourse in technical operations. 

3. Continue efforts to create a technical operations library. 

4. Complete technical operations input to Special Analysis Division basic plan. 

REQUIREMENTS AND ALLOCATIONS BRANCH 

1. Prepare draft requirements guide. 

2. Prepare inputs to Special Analysis Division basic plan. 

DATA PROCESSING BRANCH 

1. Prepare proposed PERT network approach for information storage and 
retrieval. 

2. Prepare interim data retrieval and storage plan. 

3. Prepare input to Special Analysis Division basic plan. 

May 1967 — Tasks underway within the unit: 

TECHNICAL OPERATIONS BRANCH 

1. Prepare detailed plans for summer encampment. 

2. Prepare 6-month training forecast information. 

3. Develop outline for technical operations manual. 

REQUIREMENTS AND ALLOCATIONS BRANCH 

1. Develop operating procedures. 

2. Update annual operating budget. 

3. Prepare detailed plans for summer encampment. 

DATA PROCESSING BRANCH 

1. Study ORBIT document retrieval system. 

2. Prepare requirements for incorporation in Special Analysis Division budget. 

3. Prepare flowcharts of tape to printer program. 

4. Continue preparing computer procedures for compiling a watchlist. Xo 
actual watchlist is maintained by the unit, or is planned, unless, and until, the 
WISP is implemented under wartime conditions. 

February 1912 — Tasks underway within unit 

TECHNICAL OPERATIONS BRANCH 

1. Continue technical operations contingency planning for nuclear situation. 

2. Review microfilm detection techniques. 

REQUIREMENTS AND ALLOCATIONS BRANCH 

1. Complete Special Analysis Division basic plan update. 

2. Continue revision of requirements guide. 



2983 

DATA PROCESSING BRANCH 

1. Review manual and automated submission procedure requirements with 
R. & A. branch. 

2. Continue preparation of data processing standards and procedures manual. 

3. Prepare initial plan for operation in nuclear situation. 



Office of the Assistant Secretary of Defense, 

Washington, B.C., June 27, 1972. 
Mr. William G. Phillips. 
Raybum Jlouse Office Building. 
Washington, B.C. 

Dear Mr. Phillips : I trust the enclosed study paper, complementing our 
discussion of June 21. 1971'. will resolve the questions you raised concerning 
Department of Defense participation in the Office of Emergency Preparedness 
Special Analysis Division. 

If I can be of further assistance to the committee, you or your staff, please 
feel free t<> contact me. 
Sincerely, 

D. O. Cooke. 
Deputy Assistant Secretary of Defense. 
Attachment. 

Office of the Assistant Secretary of Defense, 

Washington, B.C. 
Subject: Special Analysis Division (SAD) of the Office of Emergency Prepared- 
ness i OEP). 
Responses to the questions posed by the Moorhead Committee staff, June 21, 
1072. are set forth as follows : 

1. Question: Furnish full identification of the 16 SAD reservists: 
(a) Their civilian jots. 
(&) Their military jots. 
Answer : Army element — SAD : 

Col. James J. Landis. USAR; National Distiliers Chemical Corp., Washington, 
D.C; telephone: 347-1150; duty MOS : 9335 (censorship officer). 

Lt. Col. John B. Farmakides. USAR: Atomic Energy Commission, Washing- 
ton, D.C; telephone: 973-575(1 : duty MOS: 9335 (censorship officer). 

Maj. Robert A. Young, USAR ; Department of State, Washington, D.C. ; tele- 
phone : 632-8444 : duty MOS : 9335 ( censorship officer) . 

Maj. Jerome J. Donovan. USAR : Food and Drug Administration, Washing- 
ton, D.C: telephone: 962-S027 : duty MOS: 9335 (censorship officer). 

Maj. Raymond J. Mahach, USAR: Federal Deposit Insurance Corporation. 
Washington, D.C: telephone: 3S'.;-4474 : duty MOS: 9335 (censorship officer*. 
Maj. Robert M. Duncan, USAR: Military Management and Terminal Service — 
Army, Arlington. Va. ; telephone : 750-1971 ; duty MOS : 9335 (censorship officer). 
Sp4 Philip C Jones. USAR; Export-Import Bank, Washington, D.C; tele- 
phone: 382-2328; duty MOS : 716.40 ( administrative NCO). 
Navy element — SAD: 

Capt. Richard L. Franz. USXR ; Federal Communications Commission. Wash- 
ington, D.C : telephone : 632-7191 : Code : 1105 ( general line) . 

Comdr. Stephen L. Grossman, USXR; Interstate Commerce Commission. 
Washington, D.C: telephone: 737-9785, extension 611; Code: 1105 (general 
line). 

Comdr. David C Barry. USXR: Internal Revenue Service, Washington, D.C; 
telephone : 964-6101 : Code : 1105 < general line). 

Lt. Comdr. Deane C Allard, Jr., USXR: U.S. Naval History Division, Wash- 
ington, D.C : telephone : 69.;-?>170 : Code : 1105 (general line). 

Lt. Comdr. Norman F. Danis, USXR : Defense Intelligence Agency, Washing- 
ton. D.C : telephone : 693-6370 : code : 1635 (intelligence). 

Lt. Comdr. Arthur E. Storer, USXR ; Tracor, Inc.. Arlington, Va. ; telephone: 
920-5100 : code : 1105 ( general line i . 
USAF element— SAD : 

Maj. Eugene T. Nepa, USAFR; Westinghouse Electric Underseas Division, 
Annapolis. Md. : Telephone : 301-765-5583 ; AFSC : D8111 (security police officer) ; 
P7010 (administrative officer). 



2984 

Maj. John S. Cosby. Jr.. T'SAFR ; National Oceanic and Atmospheric Agency, 
Rockville, Md. ; telephone: 301-496-8288; AFSO : D8111 (security police officer) ; 
P5135B (computer systems analyst — Software Specialization). 

Capt. Robert M. Shaver : Bureau of Customs, Washington, D.C. ; telephone : 
774-9351; AFSC : D8111 (security police officer); P5135A (computer systems 
analyst — applications ) . 

2. Question: Hoiv long has SAD existed? 

Answer : SAD was initiated with a letter from the Office of Civil and Defense 
Mobilization to the Secretary of Defense, dated October 1, 1950. On October 28, 
1 !)."">'.), the ASD (Manpower and Reserve) forwarded a memo to the service secre- 
taries advising them of the OCDM letter and asked for service recommendations. 
On December 7, 1959, the ASD (Manpower, Personnel, and Reserve) again wrote 
a memorandum to the service secretaries reminding them of their concurrence 
in the establishment of a joint reserve planning unit to accomplish the planning 
of the organization and operations of a SAD in the Office of National Censorsbip. 

3. Question: How long has it been composed, of Reserve mobilization designa- 
tion people? 

Answer: Since its inception. No personnel other than military reservists have 
been assigned to this unit. 

//. Question: For the interim period, in event of national emergency and activa- 
tion of the Office of Wartime Information Security (WISP) the Secretary of 
Defense is the Acting Director of WISP. Especially as regards media (WISP), 
which staff will he use? What staff is now in being for that purpose? 

Answer : Existing operational planning directives do not task the Secretary of 
Defense to assume control, even as an interim measure, over public media volun- 
tary censorship. 



National Censorship Agreement Between Department of Defense and Office 
of Emergency Planning, October 1, 1963 

a. purpose 

The Secretary of Defense and the Director of the Office of Emergency Plan- 
ning, for the Office of Censorship, enter into the following agreement setting 
forth the responsibilities of each agency with respect to the planning for, and 
the operation of, national censorship. 

B. MISSION OF NATIONAL CENSORSHIP 

1. To keep from the enemy information which would aid his war effort or 
would binder our own or that of our allies, and 

L'. To collect information of value in prosecuting the war and to make that 
information available to the proper agencies. 

C SCOPE OF NATIONAL CENSORSHIP 

1. National censorship includes : 

(a) Public media censorship ; 

( b ) Postal and travelers censorship ; and 

( c ) Telecommunications censorship. 

2. National censorship does not include : 

(a) Censorship within an area occupied or controlled by the Armed 
Forces ; 

(b) Censorship of communications transmitted via the communications 
systems of the Armed Forces. 

D. PLANNING RESPONSIBILITIES FOR NATIONAL CENSORSHIP 

1. The Office of Emergency Planning will : 

(a) Coordinate and monitor all aspects of national censorship planning; 
(6) Develop a plan for establishing the Public Media Censorship; 

(c) Develop a plan, in coordination with the Department of Defense and 
other interested agencies, for the Office of Censorship; 

( '/ ) Furnish policy and training guidance, a coordinator, and training 
space for the Special Analysis Division; 



29S5 

(e) Develop plans to coordinate for the Office of Censorship the procure- 
ment of equipment necessary to support the operations of the Special Analysis 
Division ; 

(/) Accept responsibility for procuring space for all elements of Na- 
tional Headquarters of the Office of Censorship ; 

\ij) Develop plans for the office of Censorship to coordinate the hiring 
of all civilian personnel to he used by all elements of the National Head- 
quarters of the Office of Censorship ; 

(/i) Maintain an activation file containing the necessary directives for 
the establishment of national censorship. This includes proposed proclama- 
tions. Executive orders, and legislation ; 

(i) Coordinate, in conjunction with the Department of Defense, liaison 
on national censorship policy matters with foreign governments. 
2. The Department of Defense will: 

( a ) Develop plans and preparations for Telecommunications Censorship, 
Postal and Travelers Censorship, and the Special Analysis Division (except 
those responsibilities assigned to the Office of Emergency Planning in D. 1 (d) 
and (e) above), as elements of the office of Censorship: 

(6) Maintain liaison with foreign governments on technical and opera- 
tional planning matters ; 

(c) Maintain duplicate activation files containing the necessary directives 
for the establishment of national censorship: 

(d) Achieve and maintain an adequate degree of readiness at all times 
for the activation of those elements of the Office of Censorship for which 
the Department of Defense is responsible. 

E. OPERATING RESPONSIBILITIES FOR NATIONAL CENSORSHIP 

1. Pending determination by the Director of Censorship that the Office of Cen- 
sorship is prepared to assume control of Postal and Travelers Censorship and 
Telecommunications Censorship, and the operation of the Special Analysis Divi- 
sion, the Secretary of Defense will be responsible for such functions. 

2. Upon determination by the Director that the Office of Censorship is pre- 
pared to assume control of Postal and Travelers Censorship and Telecommunica- 
tions Censorship, and the operation of the Special Analysis Division, respon- 
sibility for such functions shall be vested in the Director. 

3. The Office of Censorship, acting as an agent for the Department of Defense, 
will perform certain secondary censorship of Armed Forces mail. 

4. Military personnel assigned to the Office of Censorship may be withdrawn 
for reassignment by their respective services as mutually agreed upon by the 
Secretary of Defense and the Director of Censorship. 

This agreement becomes effective after approval and signature by the Secretary 
of Defense and the Director. Office of Emergency Planning, at which time it 
supersedes the existing agreement signed by the Secretary of Defense Febru- 
ary 21. 1955, and the Director. Office of Defense Mobilization. March 7. 1955. 

For the Department of Defense : 

ROSWELL GlLPATRIC. 

For the Office of Emergency Planning: 

Edward McDermott. 
Date : October 1, 1963. 

[Reprint — with changes through May 21, 1971 incorporated] 

June 25. 1965. 

Department of Defense Directive 5230.7: Wartime Information Security 

Program (WISP) 

References: (a) DOD Directive 5230.7, "Censorship planning." May 20. 1959 
(hereby canceled) ; (6) DOD Directive 5120.33. "Classification Management 
Program," January 8. 1963: (c) National Censorship Agreement Between the 
Department of Defense and the Office of Emergency Planning, October 1. 1963. 

I. reissuance 

This directive reissues policy on. and assigns responsibility for. WISP plan- 
ning involving the Department of Defense. Reference (a) is hereby superseded 
and canceled. 



2986 

II. APPLICABILITY AND SCOPE 

This directive applies to the Military Departments, the Organization of the 
Joint Chiefs of Staff, and the Assistant Secretaries of Defense (Administration) 
and (Public Affairs), and governs planning within the DOD for National WISP 
including Armed Forces, Civil Enemy Prisoner of War and Civilian Internee, 
and Field Press WISP. 

III. DEFINITIONS 

A. WISP. — The control and examination of communications to prevent dis- 
closure of information of value to an enemy, and to collect information of value 
to the United States. 

B. United States—The term "United States" includes the 50 States, the 
Commonwealth of Puerto Rico, Guam, the Virgin Islands. American Samoa and 
Swain's Island, the Canal Zone, the Trust Territories of the Pacific Islands, and 
any territory or area under the jurisdiction of the United States, or which is 
committed to its control as administering authority by treaty or international 
agreement. 

C. Communication. — The term "communication" includes any letter, book, plan, 
map, or other paper, picture, sound recording, or other reproduction, telegram, 
cablegram, wireless message, or conversation transmitted over wire, radio, tele- 
vision, optical, or other electromagnetic system, and any message transmitted by 
any signaling device or any other means. 

D. National WISP. — The control and examination of communications enter- 
ing, leaving, transiting, or touching the borders of the United States, and the 
voluntary withholding from publication by the domestic public media industries 
of military and other information which should not be released in the interest 
of the safetv and defense of the United States and its allies. 

1. National Telecommunications WISP.— Within the scope of National WISP, 
the control and examination of communications transmitted or received over the 
circuits of commercial communications companies classified by the Federal Com- 
munications Commission as "common carriers," and not under the control, use, 
supervision, or inspection of a Federal agency. 

2. National Postal and Travelers WISP. — Within the scope of National WISP, 
the control and examination of postal communications, communications carried on 
the person or in the baggage or personal possessions of travelers, and all other 
communications subject to review and not within the purview of other elements 
of National WISP. 

E. Armed Forces WISP.— The examination and control of personal communica- 
tions to or from persons in the Armed Forces of the United States and persons 
accompanying or serving with the Armed Forces of the United States. 

F. Civil WISP. — Review of civilian communications, such as messages, printed 
matter, and films, entering, leaving, or circulating within areas or territories 
occupied or controlled by the Armed Forces of the United States. 

G. Enema Prisoner of War and Civilian Internee WISP. — The review of com- 
munications to and from enemy prisoners of war and civilian internees held 
by the U.S. Armed Forces. 

H. Field Press WISP.— The security review of news material subject to the 
jurisdiction of the Armed Forces of the United States, including all information 
on material intended for dissemination to the public. 

I. Primary WISP. — Armed Forces review performed by personnel of a com- 
pany, battery, squadron, ship, station, base, or similar unit, on the personal 
communications of persons assigned, attached, or otherwise under the jurisdic- 
tion of a unit. 

J. Secondary WISP. — Armed Forces review performed on the personal com- 
munications of officers, civilian employees, and accompanying civilians of the 
Armed Forces of the United States, and on those personal communications of 
enlisted personnel of the Armed Forces not subject to Armed Forces primary 
review, or those requiring reexamination. 

TV. NATIONAL WISP 

A. Oh jct'N res.— The objectives of national WISP are to (1) deny to the enemy 
information which would aid his war effort or would hinder our own: and (2) 
collect information of value in prosecuting the war and make it available to 
proper authorities. 

B. Assumptions. 

1. In the event of war, the President will impose National WISP. 



2987 

2. The imposition of national WISP will be supported by appropriate legisla- 

3. Upon imposition of national WISP, the President will establish an Office 
of WISP and appoint a Director of WISP. 

4. The Office of WISP will be an independent Federal agency reporting di- 
rectly to the President. 

C. National WISP Operating and Planning Principles. 

1. WISP is an indispensable part of war, and planning for it should keep 
pace with other war plans. 

2. WISP restraints will be enforced only for reasons of military import as 
described in subsection IV. A., above. WISP will not be used to (a) suppress in- 
formation, other than in the interest of national security or defense, (ft) assist 
in the enforcement of peacetime statutes unconnected with the war effort, or (c) 
act as a guardian of public morals. 

3. Although there are no restrictions on the authority of the Director of 
WISP (to he established by the President under paragraph IV.B..3.. above), 
National WISP normally will not be exercised over Government communications, 
over non-Government communications facilities allocated to Federal agencies, or 
those which may come under the control, use, supervision or inspection of Federal 
agencies. 

4. During the interim between the imposition of National WISP by the Presi- 
dent and the determination by the Director of WISP that the Office of WISP 
is prepared to assume control of Postal and Travelers WISP, Telecommunications 
WISP, and the Special Analysis Division, the Secretary of Defense will be re- 
sponsible for such functions. 

.">. The Director of WISP will notify the Secretary of Defense when the Office 
of WISP is prepared to assume control of the functions set forth in paragraph 
IV.C.4., above, after which date responsibility for such functions shall be 
vested in the Director of WISP. 

6. After the Director of WISP assumes control of Postal and Travelers. Tele- 
communications WISP and the Special Analysis Division, military personnel of 
the DoD assigned to the Office of WISP will be under the administrative control 
of their Services, and the operational control of the Director of WISP. Military 
personnel may be withdrawn by their respective Services as mutually agreed 
upon by the Secretary of Defense and the Director of WISP. 

7. At the time of transfer of control from the Department of Defense to the 
Office of WISP, all items of equipment and supplies necessary for and being 
used or allocated to WISP operations, and all leases that have been entered into 
for WISP operations, will be transferred to the Director of WISP without re- 
imbursement. 

D. Delineation of planning responsibilities. — Responsibilities for advance 
National WISP planning are assigned as follows : 

1. The Office of Emergency Preparedness (OEP), under the provisions of 
reference (c), will: 

(a) Coordinate and monitor all aspects of National WISP planning. 
(&) Develop a plan for establishing public media WISP. 

(c) Develop a plan, in coordination with the DOD and other interested 
agencies, for establishing an Office of WISP. 

(d) Furnish policy and training guidance, a coordinator, and training 
space for the Special Analysis Division, Office of WISP. 

(e) Develop plans for the Office of WISP providing for the coordination 
of the procurement of equipment necessary to support the operations of 
the special analysis division. 

(/) Accept responsibility for procuring space for all elements of Na- 
tional Headquarters of the Office of WISP. 

(g) Develop plans for the Office of WISP to coordinate the hiring of all 
civilian personnel to be used by all elements of the National Headquarters 
of the Office of WISP. 

(h) Maintain an activation file containing the necessary directives for 
the establishment of National WISP. This includes proposed proclamations, 
Executive orders, and legislation. 

(i) Coordinate, with foreign governments, in conjunction with the DOD, 
liaison on National WISP policy matters. 

2. The Department of Defense under the provisions of reference (c) will: 

(a) Develop plans and preparations for National Postal and Travelers 
WISP, National Telecommunications WISP, and the special analysis divi- 
sion as elements of the Office of WISP. 



2988 

(b) Maintain liaison with foreign governments on technical and opera- 
tional planning matters. 

(c) Maintain duplicate activation files containing the necessary direc- 
tives for the establishment of National WISP. 

{(I) Achieve and maintain an adequate degree of readiness at all times 
for the activation of those elements of the Office of WISP for which the 
DOD is responsible. 
E. Specific responsibilities within the Department of Defense. — 1. The Assist- 
ant Secretary of Defense (Administration) is responsible for : 

[<n overall coordination and direction of the National WISP policy and 
program within the DOD. 

(b) Representing the DOD with other Government agencies on National 
WISP matters. 

(c) Maintaining liaison with foreign governments on National WISP 
matters. 

(d) Maintaining activation files containing necessary directives, proposed 
proclamations, Executive orders, and legislation. These will lie duplicates 
of activation files maintained in the Office of Emergency Preparedness. 

<e) Monitoring the military departments' National WISP functions and 
responsibilities to achieve and maintain readiness for the imposition of 
National Postal and Travelers WISP, National Telecommunications WISP, 
and for the operation of the special analysis division. 

2. The Assistant Secretary of Defense (Public Affairs) is responsible for: 

(a) Overall coordination and direction within the DOD for the National 
Public Media WISP policy and program. 

(b) Representing the DOD with other Government agencies on National 
Public Media AVISP matters and for developing a policy and program 
covering DOD participation in National Public Media WISP. 

3. The Secretary of the Army, in coordination with the Secretary of the Air 
Force, is responsible for the development of plans and preparations for Postal 
and Travelers WISP as an element of National WISP. These responsibilities 
include : 

(a) Preparing logistic and operation plans for Postal and Travelers 
WISP. 

(6) Preparing operational instructions and guidance for review. 

(c) Developing plans for M-day recruitment and assignment of qualified 
civilians to selected positions in Postal and Travelers WISP. 

(d) Maintaining liaison with other Government agencies on planning 
and activation matters. 

4. The Secretary of the Army is responsible for developing and preparing plans 
for the Special Analysis Division as an element of National WISP, and for 
planning for and operating the National Postal and Travelers WISP organiza- 
tion and the Special Analysis Division, when so directed. This responsibility 
inc hides : 

(a) Selecting and training personnel of the Reserve Components of the 
Department of the Army for mobilization assignment to National Postal 
and Travelers WISP. 

( b) Selecting personnel of the Reserve Components of the Department of 
the Army for mobilization assignment to the Army Element, Special Anal- 
ysis Division. 

(c) Developing Tables of Distribution for M-day recruitment and assign- 
ment of civilians to positions in Postal and Travelers WISP. 

(<?.) Stockpiling essential supplies and equipment as a readiness measure 
for National Postal and Travelers WISP. 

5. The Secretary of the Navy is responsible for developing plans and preparing 
for activation of. and the operation of, Telecommunications WISP as an ele- 
ment of National WISP. This responsibility includes : 

(a) Preparing logistic and operations plans for National Telecommunica- 
tions WISP. 

(6) Recruiting and assigning personnel of the Reserve Components of 
the Department of the Navy to mobilization billets in Telecommunications 
AVISP. 

(c) Selecting personnel of the Reserve Components of the Department of 
the Navy for mobilization assignment to the Navy Element, Special Analysis 
Division. 



2989 

(d) Developing plans for immediate M-day recruitment and assignment 
of qualified civilians to selected positions in National Telecommunications 

WISP. 

(e) Conducting liaison with commercial communications companies, gov- 
ernmental agencies, and others as required on technical operational planning 
and activation matters. 

(/) Developing and administering necessary training in Telecommunica- 
tions WISP including the conduct of seminars and exercises, and prepara- 
tion of curriculums and guidance for review units. 

( g ) Preparing and promulgating operational procedure and guidance for 
reviewers. 

(//) Stockpiling certain essential supplies and equipment as a readiness 
measure for National Telecommunications WISP, 
ft. The Secretary of the Air Force is responsible for making the following 
preparations for Postal and Travelers WISP and the Special Analysis Division 
as elements of National WISP. This responsibility includes : 

(a ) Selecting personnel of the Reserve Components of the Department of 
the Air Pone for mobilization assignment to National Postal and Travelers 
WISP. 

(6) Selecting personnel of the Reserve Components of the Department of 
the Air Force for mobilization assignment to the Air Force Element, Special 
Analysis Division. 

(c) Training personnel of the Reserve Components of the Department of 
the Air Force and making such personnel available to the Department of 
the Army for duty upon imposition of National WISP. 
F. National WISP Planning Security Classification. 

1. The fact of the existence of National WISP planning is unclassified. 

2. Classification will be determined in accordance with issuances under ref- 
erence (b). 

V. FIELD PKESS WISP 

A. Objectives and Scope. 

1. The objectives of held press WISP are to (a) insure the prompt release to 
the public of the maximum information consistent with security, and (b) prevent 
the disclosure of information which would assist the enemy. 

2. Accreditation of correspondents, provision of communication facilities, civil 
review, and the internal dissemination of communications are not within the 
province of held press WISP. 

P. Policy. 

1. The governing principle will be that the security review of news material 
will be accomplished within the shortest practicable time, and the maximum 
information released to the public consistent with denial of aid to the enemy. 

•J. Every effort will be made to conduct held press review at locations convenient 
to processing and transmission facilities. 

o. Field press review will lie conducted in accordance with U.S. Armed Forces 
doctrine which will apply to the security review of news material subject to 
the jurisdiction of elements of the Armed Forces, whether acting jointly or in- 
dependently. The security review of news material subject to the jurisdiction of 
the U.S. Armed Forces portion of combined commands will be governed by 
procedure prescribed by the combined force commander insofar as such procedure 
is in consonance with the principles set forth in paragraphs V.B. 1. and 2.. above. 

4. Upon declaration of war, or if the United States is attacked, or if the United 
States is believed about to be attacked, held press WIS!' may l>» established in 
the United States as directed by the Secretary of Defense with the approval 
of the President. 

5. Field press WISP may be placed into effect immediately outside the con- 
tinental United States by a joint, specified, or other area commander of an area 
in which U.S. Armed Forces are operating, in the event of (a) a declaration of 
war by the United States, (b) an armed attack upon the United States, its terri- 
tories or possessions, or areas occupied or controlled by the United States, (c) 
an armed attack on the Armed Forces of the United States, or (d) the commit- 
ment t<> combat of Armed Forces of the United States as a separate force or as a 
part of a United Nations effort. 

ft. Whenever initiated or established, held press WISP will cease only upon the 
direction of the Secretary of Defense. 
C. Responsibilities. 



2990 

1. The Assistant Secretary of Defense (Public Affairs) will develop overall 
Ida ns and provide policy direction for the operation of field press WISP. 

2. The Secretaries of the military departments will be responsible for : 

(a) Preparing logistic and operations plans for field press WISP. 

(ft) Selecting and training personnel for assignment to field press WISP. 

(c) Preparing and issuing uniform technical operational instructions and 
guidance to reviewers. 

(d) Stockpiling essential supplies for field press WISP. 

VI. ARMED FORCES WISP 

A. Objectives. — The objectives of Armed Forces WISP are to (1) prevent the 
disclosure of information which might assist the enemy or which might adversely 
affect any policy of the United States; and (2) collect and disseminate informa- 
tion which may assist the United States in the successful prosecution of a war. 

B. Policy. 

1. Armed Forces WISP may be imposed in time of peace only when specifically 
directed by (a) the President, (b) the Secretary of Defense, or (c) by the com- 
mander of a unified or specified command, as an emergency security measure, 
upon indications that an outbreak of hostilities is imminent or has occurred 
within his area. 

2. Subsequent to a declaration of war by the United States, the following con- 
ditions will govern the imposition of Armed Forces WISP : 

(«■) Within the continental United States. — (1) If the United States is 
attacked or believed about to be attacked. Armed Forces WISP will be 
established in areas under military control by order of the Secretary of 
Defense; (2) When deemed necessary to maintain security at installa- 
tions under military control, Armed Forces WISP may be imposed after 
approval by the Secretary of Defense. The appropriate military department 
will request such approval ; (3) responsible commanders will impose im- 
mediate review at ports of water or aerial embarkation and related stag- 
ing areas to maintain adequate security, and advise the Departments of 
the Army, Navy, or the Air Force, as appropriate, of such imposition. 

<l>) Outside the continental, United States. — In all land or water areas 
where persons in, serving with, or accompanying, the Armed Forces of the 
United States are stationed, Armed Forces WISP will be imposed im- 
mediately. 

3. Secondary Armed Forces WISP will be performed by the military com- 
ponents as directed by the appropriate unified or specified commanders in com- 
pliance with the order imposing Armed Forces WISP. 

4. Armed Forces WISP will cease only when so directed by the Secretary of 
Defense upon recommendation by the joint staff or the appropriate military 
department. 

C. Responsibilities. — 1. The Secretaries of the military departments will be 
responsible for : 

(a) Preparing overall plans and uniform policies for their support of 
Armed Forces WISP. 

(b) Preparing logistic and operations plans for Armed Forces WISP. 
i c) Selecting and training personnel for assignment to Armed Forces 

WISP. 

(d) Preparing and issuing Armed Forces WISP regulations. 

(e) Stockpiling essential supplies for Armed Forces WISP. 

2. Within overseas areas, primary and secondary Armed Forces WISP will 
be the responsibility of unified or specified commanders. Within CONUS, WISP 
at water and aerial ports of embarkation and staging areas will be the respon- 
sibility of the official of the military department having control of the facility. 

VII. CIVIL WISP 

A. Objectives.— The objectives of civil WISP are to d) collect and disseminate 
information that, will assist the United States in the successful prosecution 
of a war. and (2) prevent the disclosure of information which might assist the 
enemy, or which might adversely affect any policy of the United States. 

B. Policy. — 1. When civil WISP is established in a foreign territory, jurisdic- 
tion will be exercised over all communications entering, leaving, or circulating 
within the territory, except those controlled by other forms of United States or 
allied WISP. 



2991 

(a) Establishment of civil WISP in a foreign territory controlled by the 
Armed Forces of the United States may be directed by the Secretary of 
Defense. 

(&) Establishment of civil WISP in foreign territories occupied by the 
Armed Forces of the United States as the result of military operations may 
be directed by the appropriate unified or specified commander. 
2. The Secretary of Defense will determine the time and phasing of civil 
WISP termination or transfer to other than military control. 

C. Responsibilities. — 1. The Secretary of the Army is responsible for the con- 
tinuing planning for civil WISP as a military measure, working in close co- 
operation with the Secretaries of the Navy and Air Force in : 
( a ) Preparing logistic and operational plans. 

( 6) Planning for the selection and training of military personnel for civil 
WISP duty assignments. 

(c) Conducting operational planning and activation liaison with other 
Federal agencies. 

(d) Preparing and issuing technical operational instructions and guid- 
ance for reviewers. 

(e) Monitoring the conduct of civil WISP when imposed. 

2. The Secretary of the Navy will assist the Secretary of the Army in de- 
veloping plans, policy, and preparations for the telecommunications element of 
civil WISP, including the selection, training, and assigning of Naval personnel 
to civil WISP. 

3. The Secretary of the Air Force will assist the Secretary of the Army in 
the developing of plans, policy, and preparations for the postal and travelers 
element of civil WISP, including the selection, training, and assigning of Air 
Force personnel to civil WISP. 

4. Unified or specified commanders will operate civil WISP as a military 
measure in United States occupied territory, or in controlled territory within 
limits determined by mutual agreement between the recognized government of 
the controlled territory and the U.S. Government. 

5. Unified or specified commanders will plan for the operation of civil WISP 
in areas subject to occupation or control in accordance with war plans. 

VIII. ESEMY PRISONER OF WAR AND CIVILIAN INTERNEE WISP 

A. Objectives. 

1. To collect and disseminate information that will assist, the United States 
in the successful prosecution of a war. 

2. To prevent the disclosure of information which might assist the enemy, 
or which might affect any policy of the United States. 

3. To collect, and furnish to authorities of enemy prisoner of war and civilian 
internee camps information that may help maintain discipline and physical 
security. 

B. Policy. 

1. The operation of Enemy Prisoner of War and Civilian Internee WISP will 
be undertaken only with a full understanding of the rights guaranteed to enemy 
prisoners of war and civilian internees by the Geneva Conventions to which the 
United States is a signatory. 

2. All enemy prisoner of war and civilian internee mail, with the exceptions 
required by the Geneva Conventions, will be subject to review. 

C. Responsibilities. — The Secretary of the Army is responsible for continuous 
planning for Enemy Prisoner of War and Civilian Internee WISP and will 
exercise the following responsibilities in close cooperation with the Secretary 
of the Navy and the Secretary of the Air Force : 

(a) Pre-mobilization planning for Enemy Prisoner of War and Civilian 
Internee WISP. 

(b) Preparation and promulgation of Enemy Prisoner of War and Civilian 
Internee WISP regulations. 

(c) Guidance for unified and specified commanders in matters pertaining 
to Enemy Prisoner of War and Civilian Internee WISP. 

2. Unified or specified commanders are responsible for all matters pertaining 
to Enemy Prisoner of War and Civilian Internee WISP in the area under their 
jurisdictions. 

3. Prisoner of War WISP Detachments will be established, trained, and 
assigned to oversea area commands by the Department of the Army. 



2992 

4. In areas where national WISP is operating, the Director of WISP, Office of 
Wisr, will review communications to and from enemy prisoners of war and 
civilian internees in accordance with Armed Forces WISP regulations. 

IX. EFFECTIVE DATE AND IMPLEMENTATION 

This Directive is effective immediately. Two (2) copies of each implementing 
document will be forwarded to the Assistant Secretary of Defense (Administra- 
tion) within sixty (60) days. 

Cyrus Vance. 
Deputy Secretary of Defense. 



[From the Washington Post, June 21, 1972] 

Congress To Probe Army Censok Unit 

(By Ron Shaffer) 

A report of a group of military reservists involved in wartime censorship con- 
tingency planning has drawn the concern of two congressional subcommittee 
directors who review government information policies and constitutional rights. 

Larry Baskir, staff director of the Senate Subcommittee on Constitution;! 1 
Rights, and Bill Phillips, staff director of the House Subcommittee on Foreign 
Operations and Government Information, said yesterday they planned to look 
into the operation of the reserve unit described in Monday's Washington Post. 

A source, who asked not to be identified for fear of retribution, said that the 
15-man reserve unit meets once a month to develop a list of radicals and con- 
tingency plans for censorship of the news media and U.S. mail in time of war. 

The unit is called the special analysis division of the Government's Office 
of Emergency Preparedness ( OEP ) . 

The report of the unit in the Post was carried in an article summarizing 
events of the attempted bugging of Democratic National Headquarters at the 
Watergate last weekend. 

James W. McCord, a suspect arrested at the site of the break-in. is an Air 
Force Reserve lieutenant colonel who was a member of the special analysis 
division team. He dropped out of the unit about 4 months ago. 

Baskir said he was interested in the list of radicals that the unit was allegedly 
formulating. Phillips said he would look into the censorship operation of the 
unit and that there might be hearings on that subject. 

Donald Carbone, a public relations officer for OEP. confirmed the existence 
of the reserve unit yesterday, but denied that team developed a list of radicals 
or worked on plans for mandatory press or mail censorship. 

Carbone said that two units connected with the special analysis division were 
working on contingency censorship plans for telecommunications, international 
postal and traveler surveillance as part of the wartime information security 
program, an emergency plan created by Executive order in 1962. 

He said he did not have details of the contingency planning, and referred a 
reporter to the Pentagon, which he said is responsible for the selection of the 
reservists and the operation of the special analysis division and other such 
teams. 

Col. Mack Seacord, a Pentagon spokesman, said last night that he was unable 
to provide details on the operation of the wartime contingency planning teams. 
lie said his information office would research the query. 



[From the Washington p os t. June 21, 1972] 

Cast of Characters Involved in Democratic Office Bugging Case 

(By Bart Barnes) 

Here is the list of principal individuals who have emerged following the at- 
tempt early Saturday to bug the Democratic National Committee headquarters. 

HOWARD E. HUNT 

Hunt, an employee of the Central Intelligence Agency from 1949 to 1970, last 
worked as a consultant to the White House on March 29 of this year. 



2993 

Hunt's name and telephone number were listed in two address books seized by 
police from two of the live suspects arrested in the bugging attempt. 

Hunt's consulting work at the White House involved declassification of the 
Pentagon Papers and, more recently, intelligence work in the area of narcotics 
enforcement. 

Currently, Hunt is a writer with the public relations firm of Robert R. Mullen 
& Co.. 1700 Pennsylvania Avenue NW. 

Hunt lives at 11120 River Road in a large, white wooden frame house in a 
sparsely populated and affluent section of Potomac in suburban Montgomery 
County. 

The nearest house is 150 yards away. Neighbors knew little about him. A sign 
out front says "Beware of Dog." and another sign near a mailbox says "Witches 
Island." 

No one answered a knock on the door, and Hunt was reported not at work 
yesterday. 

CHARLES WENDELL COLSON 

Colson, 40, special counsel to the President. Colson, a Rostonian and a lawyer, 
has been describe! 1 , by White House officials as "a doer, a tough-minded ambi- 
tious man who nets things done." 

A one-time administrative assistant to former Massachusetts Senator Leverett 
Saltonstall, Republican. Colson was said in 1!)70 to have worked with a Life 
magazine reporter on an article charging that former Maryland Senator Joseph 
D. Tydings, Democrat, used the prestige of his office to promote the interests of 
a company in which he held stock. 

Tydings was cleared of the charges after the November election, which he lost, 
and Colson has always had no comment on the issue. 

Colson, said to be a specialist in delicate assignments for the President, signed 
on Howard E. Hunt in 1971 as a special consultant at .$100 a day. Hunt and 
Colson. both alumni of Brown University, are said to have met in 196tj when 
both were active in the Washington chapter of the Brown alumni club. 

JAMES W. MCCORD, JR. 

An employee for the Central Intelligence Agency for 19 years, McCord. now 
retired, was until Sunday the security coordinator for President Nixon's reelec- 
tion committee. 

McCord, also an ex-FBI agent, also held a contract to provide security services 
to the Republican National Committee. After retirement from the CIA, McCord 
established his own security consulting firm. McCord Associates in Rockville. 

A resident of Rockville. McCord, 53, is active in the First Baptist Church of 
Washington. According to neighbors, he is from Texas where he and his wife 
graduated from Baylor University. They have three children: two daughters, 
and a son who is in his third year at the U.S. Air Force Academy. 

McCord is also a lieutenant colonel in the Air Force Reserve and was part 
of a unit whose duties included developing plans for compiling lists of radicals 
and developing plans for censorship of news and mail in the event of war. He 
was one of the live arrested inside the Democratic National Committee offices. 

BERNARD L. BARKER 

Barker. •".">. was born in Havana of one Cuban and one American parent. He 
grew up both in Cuba and in the United States and during World War II was 
a captain in the Army Air Corps. He was shot down over Germany and for 17 
months was held as a prisoner of war. 

In the kite 1950's, Barker served under Castro's guerrilla movement in Cuba, 
but lie became disillusioned and fled to Miami in 1959. He is said to have been 
cue of the organizers of the Bay of Pigs invasion in 1D61 and is said to have been 
working for the CIA since then. 

He is married and lives with his wife in Miami. A daughter, Maria Elena B. 
Moffet, works in Bethesda for the Prudential Insurance Co. of America. 

About a year ago. Barker started a real estate firm. Barker Associates, in 
Miami. An auto rented here by the suspects in the bugging was rented in the 
name of Barker Associates. 

Barker was one of five arrested inside the Democratic National Committee 
offices. 



2994 

FRANK STURGIS 

Sturgis, 37, was born in Norfolk, Va., as Frank A. Fiorini but changed bis 
name in 1962 when bis mother married Ralph Sturgis. 

Known in Cuban exile circles in Miami as having extensive CIA contacts, 
Sturgis has been described in news accounts as a soldier of fortune. 

An ex-marine, be joined Castro in the bills of Oriente Province in 1958 and was 
later named to oversee gambling operations in Havana after the revolution suc- 
ceeded in January 1959. 

Later that year, however, there was a falling out and Sturgis fled Cuba for 
Miami and lias been active in anti-Castro affairs since. 

According to the Miami Herald. Sturgis was arrested in waters off British 
Honduras with 12 companions during what Sturgis said was a voyage to make 
a commando raid in Cuba. The Mexican captain of the boat, however, said Sturgis 
had hijacked the craft. 

Sturgis was one of the five suspects arrested inside the Democratic National 
Committee offices. 

EUGENE MARTINEZ 

A real estate agent and a notary public, Martinez has been active in the anti- 
Castro movement in Miami. A Cuban native, be originally sided with Castro 
against Batista but then fled the country after the revolution succeeded. 

About 2 weeks ago be tried to line up housing at the University of Miami 
for 3,000 Young Republicans who will be attending the Republican National 
Convention there this summer. 

Martinez is a salesman in the real estate office of another suspect, Bernard L. 
Barker. Martinez was one of the five suspects arrested inside the Democratic 
National Committee offices Saturday. 

VIRGILIO R. GONZALEZ 

The fifth suspect to be arrested inside the Democratic National Committee 
offices at the Watergate. Gonzalez is a locksmith by trade and, according to a 
motion in court for a reduction of his bond, has been steadily employed for some 
years. 

He lives in Miami with his wife and children and works at the Missing Link 
Key Shop. According to his employer, be came to the United States sometime 
around the time Castro became well known and he has worked at the Missing 
Link since 1959. He has been described as "pro-American and anti-Castro." 

DOUGLAS CADDY 

Caddy. 34, is a lawyer with the firm of Gall. Lane. Powell & Kilcullen in 
Washington. About a year ago, he said, he met Barker over cocktails at the Army- 
Navy Club here. According to Caddy, the two men had a "sympathetic 
conversation." 

Caddy appeared at the arraignment Saturday of the five suspects in the bugging 
case, and told a reporter that he had obtained Joseph A. Rafferty as counsel for 
the five. 

Shortly after 3 a.m. Saturday, he said he received a call from Barker's wife. 
"She said that her husband told her to call me if he hadn't called her by 3 a.m., 
that it might mean trouble." Caddy said. 

A graduate of Georgetown and New York University Law school. Caddy was 
the first executive director of the conservatively oriented Young Americans for 
Freedom. In the early 1960's, he was a leader in the Youth for Goldwater 
organization. 

According to Robert Bennett, president of the public relations firm where Hunt 
works. Caddy and Hunt worked together for a time and the two became good 
friends. Bennett said the friendship between Caddy and Hunt developed when 
Caddy represented a client whose public relations account was held by Gennett 
Bennett's firm. 

Mr. Moorhead. When the subcommittee adjourns it will adjourn to 
meet on Monday next at 10 o'clock, in this room. 

The subcommittee is now adjourned. 

(Whereupon, at 11 :40 a.m., the subcommittee adjourned, to recon- 
vene at 10 a.m., Monday, May 15, 1972.) 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



MONDAY, MAY 15, 1972 

House of Representatives, 

Foreign Operations and 
Government Information Subcommittee 
of the Committee on Government Operations. 

Washington, D.C. 

The subcommittee met. pursuant to recess, at 10:05 a.m., in room 
2154, Rayburn House Office Building, Hon. William S. Moorhead 
(chairman of the subcommittee) presiding. 

Present: Representatives William S. Moorhead and Gilbert Glide. 

Staff members present: William G. Phillips, staff director: Norman 
G. Cornish, deputy staff director; and William H. Copenhaver, 
minority professional staff, Committee on Government Operations. 

Mr. Moorhead. The Committee on Foreign Operations and Govern- 
ment Information will please come to order. 

Today we begin the third segment of our hearings on Government 
information policies. The first two segments, the executive branch's 
administration of the Freedom of Information Act and security 
classification policies, dealt primarily with the relationship of the 
Executive to the people of the United States and the Congress. 

Our hearings have thus far shown that while the Executive grants 
lipservice to the Freedom of Information Act its performance has 
not lived up to its promise. In the murky arena of classified informa- 
tion, the President has at long last confessed error. But he has offered 
a solution in the form of Executive Order 11652, which I am convinced 
is unworkable and lacks real commitment to solving the difficult prob- 
lem of overclassification. 

While the past 20 days of hearings have elicited expressions of good 
intentions by the various departments and agencies, we are today 
entering the realm of so-called "Executive privilege"' and the Con- 
gress" right to know. This nonconstitutional doctrine is founded on 
the remarkable assertion of the President that he may withhold what- 
ever information he wishes at any time from the Congress of the 
Fnited States. This unique theory is in part justified by a memorandum 
of dubious legal scholarship which was presented to a Senate com- 
mittee in 1958. 

"Executive privilege", by which the President arrogates to himself 
the decision as to what the elected representatives of our Government 

( 2995 ) 



290(3 

will be told about the areas of their undisputed responsibility, is fur- 
ther justified by the argument that "free Congressional inspection of 
executive documents would cause the executive branch to disappear 
from our policy, leaving, in its place another unfortunate example 
of government by legislature." 

We see quite the reverse occurring, as day by day the prerogatives, 
duties and responsibilities of the Congress are being sublimated by 
unfettered expansion of the White House staff. 

It is most interesting to note that the first example of the imposition 
of executive privilege as cited by the Attorney General was the pur- 
ported refusal of President Washington to provide Congress with in- 
formation relative to the failure of a military expedition carried out 
in 1792. Congress was of course interested in how we became involved 
in this expedition and why it failed. It seems that in ISO years we 
have come the full circle. 

I must note, however, that — despite claims by the proponents of 
executive privilege — President Washington did release the requested 
papers to the Senate. So much for the "Father of executive privilege." 

Since 1961, executive privilege has technically been invoked solely 
by the President. Letters stating this policy were sent to Congressman 
John Moss, former chairman of this subcommittee, by Presidents Ken- 
nedy, Johnson, and Nixon. However, this new policy has been more 
honored in the breach, as the various executive departments continue 
to withhold information from Congress on their own motion. While 
never invoking the magic words "executive privilege" the departments 
simply decline to provide the information, stall, provide only partial 
information, or otherwise attempt to thwart the will of Congress. 

While Congress can call Cabinet Department witnesses before its 
various committees, it has not, with few notable exceptions, been able 
to obtain testimony from persons on the White House staff. When the 
Department of State truly administered our foreign policy, and the 
Department of Defense truly administered our military policy, wit- 
nesses from these departments were able to provide Congress with the 
information it needed to legislate. However, we are now witnessing a 
geometric expansion of the White House staff — with policymakers 
from the agencies and departments drawn in under the spurious White 
House umbrella of "executive privilege." I will insert a Congressional 
Research Service study of this expansion at the conclusion of this 
statement. George Reedy, press secretary to President Johnson, testi- 
fied before this subcommittee in March' that this shift to the White 
House is critically unbalancing the equality of the legislature and the 
Executive. 

Since 1000 the White House staff' has expanded by almost 100 per- 
cent. Amazingly enough, many of these persons are considered per- 
sonal advisers to the President and will not appear before Congress. 

Earlier this year, this subcommittee invited Mr. Herbert Klein, the 
President's director of communications, to appear with a panel of 
former press aides. He refused to appeal'. 

This subcommittee also invited Mr. David Young, primary drafter 
of the new Executive order on classification. He refused to appear. 
Even Donald Rumsfeld, head of the Cost of Living Council, re- 
fused to a] (pea)' before this subcommittee, inappropriately, I think, 
donning his hat as an adviser to the President. 



2997 

I ask the White House — what is the Congress supposed to do ? Are 
we to accept White House assertions that all is well and be content 
with the benign claptrap oozing from the basement of the White 
House as prepared by a former advertising "flack" for Disneyland? 
I think not. 

In the next several days of hearings, this subcommittee will hear 
from Members of Congress who were impeded in their legislative 
responsibilities by departmental refusals to supply needed informa- 
tion. We will also take testimony from the General Accounting Office, 
the arm of Congress which by law has the absolute right to all finan- 
cial data necessary to the performance of its auditing functions. We 
will hear how even the GAO has difficulty in fulfilling its statutory 
obligations because of executive intransigence. 

We will also hear from Prof. Raoul Berger, probably the lead- 
ing academic authority on executive privilege whose prior articles 
have clearly demonstrated the extralegal basis for executive privilege. 

Also appearing before this subcommittee will be representatives 
from the offices of legislative affairs of the Departments of State and 
Defense" as well as the U.S. Information Agency — all of whom will 
attempt to explain and justify departmental policies toward con- 
gressional requests for information. 

Today we are particularly honored to have two distinguished Mem- 
bers of Congress as our witnesses. The first witness was formerly a 
member of this subcommittee, formerly the ranking minority member. 
He is no longer a member of the minority and we welcome him back 
first as a former member of this subcommittee and with deep feeling 
of regret, Mr. Reid, that you are not sitting up here instead of there, 
but we are also very pleased that you are continuing your interest 
in the work of this subcommittee and you are willing to contribute 
to it. 

We also will receive testimony from another distinguished, col- 
league, also from the State of New York — New York seems to be al- 
most overrepresented here today — our colleague, Mr. Lester Wolff, a 
very able and dedicated Member of Congress. 

Why don't you both come forward to the witness table. We will 
hear first from Mr. Reid and then from Mr. Wolff. 

STATEMENT OF HON. OGDEN R. REID, A REPRESENTATIVE IN CON- 
GRESS EROM THE STATE OF NEW YORK 

Mr. Reid. Thank you very much, Mr. Chairman. 

Let me say at the outset how delighted I am to have the opportunity 
to appear before your distinguished subcommittee and more particu- 
larly to commend you personally for your continuing leadership in this 
area in the national interest at a time when I personally believe the 
press is under a most serious attack in its history. And I think 
Mr. Cornish, Mr. Phillips, and Mr. Copenhaver and other distin- 
guished counsel on both sides are rendering along with the members 
of the committee a very vital service, but I would particularly like to 
salute you for your leadership, Mr. Chairman, in this area that I think 
is a very dangerous one and I think Americans have a right today 
to feel very real concern. 

76-253— 72— pt. S 5 



2998 

Mr. Mookhead. I appreciate those remarks very much but I would 
also say for the record that it was in large part your suggestion and 
inspiration that we got into these hearings and I think you are abso- 
lutely right that it is terribly important that we readdress the balance 
between the executive and the legislative branches of our Government 
and this subcommittee is doing a little bit toward that goal. 

Mr. Eeid. Mr. Chairman, I was struck by your opening remarks, and 
it is very clear to me that there is a substantial accretion of power to 
the Presidency at the expense of the Congress. I think the point you 
made and George Reedy made is exactly correct, that more and more 
elements of the executive are being removed from any area where 
they can be requested by Congress and placed specifically within the 
White House tent. This is a shift which means that increasingly 
information from the White House may not be obtainable in very 
broad areas, not just foreign relations but now the budget, to mention 
another example. 

I personally feel that the testimony that you have been conducting 
on the recent Executive order of the President, 11652, is extremely 
pertinent, and I would judge that the new section 1 is far from clear. 
It strikes me that it could be an expansion of executive authority at 
the expense of the Congress, again by virtue of the use of the words 
"national defense or foreign relations, hereinafter collectively called 
national security." 

Does this, Mr. Chairman, cover, for example, domestic surveillance ? 
Should not this Executive order limit much more the term "top 
secret" ? 

In my judgment the original top secret definition, the first part of 
the Executive Order 10501, is really the kind of definition that should 
refer to top secret and there shouldn't be a further broadening of it. 

Specifically, as you may recall, in section 1 (A) in the original Exec- 
utive Order 10501, top secret was defined in the following way : 

The top secret classification shall be applied only to that information or ma- 
te rial defense aspect of which is paramount and the unauthorized disclosure of 
which could result in grave danger to the Nation, such as leading to definite break 
in diplomatic relations effecting the defense of the United States, armed attack 
against the United States or its allies. 

Very simply that strikes me as a definition touching on something 
that could effect World War III. It has been my experience that "top 
secret" has been put almost on dinner invitations when this was not 
congenial to public knowledge. My own personal view is that if the 
Freedom of Information Subcommittee can narrow the definition so 
that "top secret" is not used in an indiscriminate way along with the 
appropriate procedures, so that the Congress has the right of oversight 
and the power to declassify that which is improperly classified, that 
you will be rendering a genuine service. 

I might also say that as a result of the hearings under your chair- 
manship and other talks, private and otherwise, I am increasingly per- 
suaded that prior restraint should be removed from the reach of the 
Executive, because if prior restraint is going to be used in any kind of 
broad way to preclude newspapers, the fundamental right they have 
enjoyed for 200 years, the right to publish, then I think we could also 
get into very dangerous waters. I believe the more I think about it that 
the newspapers should enjoy the right they have had historically over 



2999 

the years to publish, and, of course, be responsible for the conse- 
quences, but I am disturbed by the definitions in some of the Supreme 
Court opinions. I am afraid at some point this administration might 
invoke prior restraint again and quite possibly you should consider 
legislation in that area. 

I might also say that there are two other developments I want to 
mention briefly before getting - into my prepared testimony. 

(1) I am not reassured at all by the recent statements of Pat Bu- 
chanan of the White House on his assessment of the press and some 
of the recommendations he suggests, and further, I am not reassured 
by the actions of the FCC starting to invade the questions of content 
during the licensing procedures, some of which are upcoming. I con- 
tinue to believe that the FCC should concern itself with the equitable 
placing of frequencies, so that one station or TV does not violate the 
other in a technical sense of frequencies and the fairness doctrine, 
which to me means operating in support of the public interest and to 
be sure that all points of view are fairly heard. But when the FCC 
starts to threaten or suggest control over content or say that licensing- 
procedures will take into consideration the kind of drug lyric music 
that may or may not be played on the radio, or other questions wherein 
they might feel that an interpretative piece of reporting was too inter- 
pretative then it seems to me they are invading the area of content, 
which I believe is clearly covered by the first amendment. I think this 
administration has yet to understand that the press has a paramount 
responsibility in news reporting and in interpretative pieces and edi- 
torials, and the administration seems to me frequently to confuse an 
editorial with a straight news account. To the extent they increasingly 
think it is good politics to attack the press, I think the} r are starting to 
undermine very fundamental liberties. 

Needless to say, Mr. Chairman, as I mentioned at the outset, it is a 
particular privilege to be with you this morning, and I have some 
prepared testimony and I would ask at this point in the record, if I 
may, that the full statement be included in the record. 

Mr. Moorhead. Without objection the full statement will be included 
in t lie record. 

(Hon. Ogden E. Reid"s prepared statement follows:) 

Prepared Statement of Ogden R. Reid, a Representative in Congress 
From the State of New York 

Mr. Chairman, needless to say. I deeply appreciate the opportunity to appear 
before this distinguished subcommittee from the other side of the table and 
discuss what I and many others believe to be the most vital "freedom of infor- 
mation" question facing our country today — the furnishing of information by the 
executive branch to Congress. 

During the course of these hearings, you will hear from Members of Congress 
who have experienced difficulty obtaining information on relevant matters from 
the executive branch. I am sure you also know of the many instances of obstruc- 
tion, delay, and outright refusal by the executive branch to furnish information 
to the General Accounting Office when that agency has requested information in. 
furtherance of its responsibilities under law. 

Within the past year alone, members of this subcommittee have been rebuffed 
in their efforts to obtain important information in their official capacity. On 
June 28. 1971, pursuant to statutory authority cimfained in 5 U.S.C. 2954, seven 
members of the committee sought to be furnished the so-called Pentagon papers 
study, oiuy to be refused summarily. Congressman Moss and I were subse- 
quently unsuccessful in securing the release of that study by the courts in a suit 
brought under the Freedom of Information Act. More recently, the President 



3000 

has formally invoked the doctrine of executive privilege to deny this subcom- 
mittee the Country Field Submission Report for Cambodia, thereby reversing 
a longstanding policy of availability of such documents to Congress. 

I am certain that the record of these hearings will establish beyond dispute 
that the executive branch makes a common practice of withholding information 
from Congress when it deems such withholding desirable. What I would princi- 
pally like to discuss here are the basic constitutional implications of this problem 
and'a legislative remedy which I shall introduce tomorrow in the House. 

CONSTITUTIONAL IMPLICATIONS 

The bedrock principle upon which our system is founded is accountability to 
the people. But accountability is a hollow word unless the American people, and 
in their behalf the Congress, have the information necessary to judge the per- 
formance of their Government. Moreover, without relevant information it is 
impossible for either the Congress or the people to participate meaningfully in 
the making of fundamental decisions which, from time to time, truly alter the 
course of our Nation's history. 

There is now a fundamental and growing imbalance between the Congress and 
the executive branch, with a major accretion of power on the side of the Presi- 
dency. This has occurred in part because the executive branch has actively ex- 
panded its power, and in part because the Congress has failed to assert itself. 

The power to legislate, expressly granted to Congress by the Constitution, 
carries with it the further right of Congress to oversee the administration of the 
laws by the executive branch. Yet the information Congress needs, both to legis- 
late in the first instance and to oversee the administration of laws it has previ- 
ously enacted, is frequently in the exclusive possession of the executive branch. 

In my judgment there is no information possessed by the executive branch 
to which Congress does not have a right of access when that information is 
legitimately needed to fulfill the responsibilities of Congress for legislation or 
oversight. If Congress must legislate out of ignorance, it will make bad laws. 
If it is impeded from studying the activities of the executive branch, there is no 
way it can identify and resist the arbitrary or unwise exercise of executive 
power. Full access by Congress to relevant information, therefore, is essential 
to preserve the constitutional balance of our Government. 

While these principles seem self-evident, they have never been accepted by any 
presidential administration. To the contrary, the doctrine of executive privilege, 
which dates back to the days of President George Washington, has been repeat- 
edly invoked over the years, both expressly and silently, to deny the Congress 
information which it sought in furtherance of its constitutional duties. The 
Constitution nowhere states that the President may withhold information from 
Congress, but proponents of executive privilege claim an inherent right on his 
part to do so. 

Speaking for the present administration last June before this subcommittee, 
then Assistant Attorney General William H. Rehnquist affirmed such a right as 
"implicit in the separation of powers established by the Constitution." Yet even 
some of the Supreme Court cases cited in support of this proposition seem to 
circumscribe its application. Specifically, in Reynolds v. United States (345 U.S. 
1) the Court held that the executive branch does not have unlimited discretion 
to withhold information, stating, "the court itself must determine whether the 
circumstances are appropriate for the claim of privilege." 

Because the question has never been settled by the courts, Congress cannot rely 
on firm judicial authority to support its claim for information. In the absence of 
an accommodation between the two branches of Government, Congress must 
employ other means to make effective its right to know. 

PROPOSED LEGISLATIVE REMEDY 

Twelve years ago the House Committee on Government Operations made to 
Congress a recommendation of considerable importance. In concluding a report 
on this fundamental problem, the committee said : 

"What can the Congress do to combat abuses by executive officials in withhold- 
. ing from the Congress information which the Congress believes it needs'? 

"Two existing powers of the Congress are available to oppose this abuse — the 
power of subpena and the power of the purse. The power of subpena, however, 
should be used only as a last resort. 

"Utilizing the power of the purse, the Congress can and should provide, in 
authorizing and appropriating legislation, that the continued availability of 



3001 

appropriated funds is contingent upon the furnishing of complete and accurate 
information relating to the expenditure of such funds to the General Accounting 
Office and to the appropriate committees of Congress at their request. ( Execu- 
tive Branch Practices in Withholding Information from Congressional Com- 
mittees," Report by the House Committee on Government Operations, Aug. 30, 

Since the date of this recommendation, and indeed within memory, the Con- 
gress has taken no action to exercise its power of the purse following a refusal 
by the executive branch to furnish requested information. This is largely due, I 
think to a lack of institutional procedures which would facilitate such action. 
The organization of Congress and the requirement of concurrent action by the 
Houses in order to legislate a denial of appropriations simply do not lend them- 
selves to prompt and decisive application of financial sanctions in response to 
specific instances of withholding by the executive. 

The bill I shall introduce, as an amendment to the Freedom of Information 
Act. establishes a procedure designed to overcome this impediment. Essentially it 

provides that : ,. 

(1) When any committee of Congress requests information from the executive 
branch, the head of the agency concerned shall immediately furnish all the 
information requested ; 

(2) The agency head shall certify to the requesting committee whether or not 
full and complete disclosure of the requested information has been made ; 

(3) Upon resolution of the requesting committee, funds for the program or 
activity in question shall automatically be suspended without further action 
being required by Congress if (a) an agency head fails to make a requested 
certification; (6) an agency head certifies that full and complete disclosure of 
the requested information has not been made; or (c) an agency head falsely 
certifies that full and complete disclosure of the requested information has been 
made : 

( 4 i The GAO shall take all steps available to it under law, including refusal 
to countersign relevant warrants drawn upon the U.S. Treasury, to effectuate 
a suspension of funds. 

In effect, the withholding of information by the Executive would trigger a fund 
cutoff previously built into law by this legislation of general applicability. Be- 
cause no new legislation would be needed at the time to deny funds, effective 
response on the part of the Congress would be greatly facilitated. 

It is important to note that this legislation does not vest in Congress any 
power it does not already possess under the Constitution. It merely streamlines 
the procedure by which this power can be exercised and, as a practical matter, 
makes its exercise more possible. 

Nor does this legislation, in my view, risk irresponsible action by a committee 
of Congress. Every Member of Congress is sensitive to the gravity of a fund 
cutoff under the conditions contemplated in this legislation. It is inconceivable 
that a majority of the members of a full committee would vote to initiate the 
fund cutoff process without first giving the most careful and sober consideration 
to the circumstances and ramifications of their action. For this reason, the pro- 
cedure would not be invoked lightly or with great frequency, but only when 
fundamental disagreements between the two branches could not be resolved in 
any other way. 

The trustworthiness of the Congress or one of its committees to preserve the 
secrecy of such information when necessary and appropriate should not be 
doubted. Committees of Congress regularly receive secret information from the 
executive branch, as they have both a right and a need to do. The national security 
has never suffered as a result, for committees of Congress are no less responsible 
than their counterparts in the executive branch. 

CERTIFICATION PROCEDURE 

Under the terms of this legislation the executive branch would retain at all 
times the ability to avert a threatened fund cutoff. It need simply furnish the 
requested information and certify to the committee that it has made full and 
complete disclosure of the information sought. If such a certification were made, 
funds could not be cut off ( unless the certification were subsequently found by 
the Comptroller General of the United States to have been false). Funds could 
be cut off upon resolution of the requesting committee if the executive branch 
either (1) failed within the required time to make any certification of whether 
or not full disclosure had been made or (2) certified that full disclosure of the 
requested information had not been made. 



3002 

By making the certification procedure the focal point on which a fund cutoff 
would depend, all .subjectivity and ambiguity are removed from the process. The 
committee would not. be in the position of having to judge for itself whether all 
the requested information had been furnished before resolving to cut off funds. 
In many cases, if a committee had to make such a judgment, it could not be 
certain whether it would be justified in cutting off funds, because it would not 
know whether full disclosure had been made. 

The certification procedure establishes an objective identifiable event from 
which a fund cutoff would resailt, and the occurrence or nonoccurrence of that 
event would be totally within the control of the executive branch. Whether or 
not funds were cut off would depend entirely on whether the executive branch 
permitted them to be cut off by failing to certify that full disclosure of the re- 
quested information had been made. I wish to make clear that this means 
disclosure of all information requested, not merely all information which the 
executive branch deems it appropriate to disclose. 

This procedure is fair to both the Congress and the executive branch. To Con- 
gress it would insure that either requested information were fully provided or 
financial sanctions were triggered. On the other hand, the executive branch would 
at all times control the "trigger," which could be pulled only if the executive 
branch deliberately and consciously refused to certify that it had furnished all 
the requested information. Thus in no way could funds be cut off if the execu- 
tive branch did not affirmatively choose to allow them to be cut off. 

EXECUTIVE PRIVILEGE 

Under this legislation the invocation of executive privilege by the President 
would not avert a fund cutoff. Should the President choose not to provide Con- 
gress the requested information, for whatever reason, funds would be cut off. The 
President might prefer to lose funds than to disclose the information to Congress, 
but that is the hard — and the only — choice he would have. 

officers and agencies covered 

I should make clear, too, that this legislation exempts no office or agency 
within the executive branch from its provisions. Specifically, the President and 
establishments within the Executive Office of the President are included, so that 
no official, office, or agency may claim some undefined ''privilege'' flowing from 
his or its relationship with the President. Since the President is included, a for- 
tiori, so are all agencies and offices in the executive branch which are subordinate 
to the President. 

However, the bill also provides that the President or head of any agency shall 
not be required to disclose the nature of any advice, recommendation, or sugges- 
tion made to him by a member of his staff or of an agency of the United States 
in connection with matters solely within the scope of his official duties, except 
to the extent that such information may be required to be made public or made 
available to Congress by some other provision of law. Any form of information 
included within or forming the basis of such advice, recommendation, or sug- 
gestion is not protected from disclosure. 

The obvious purpose of this px'ovision is to protect the confidentiality of staff 
relationships and to encourage free debate among agency heads and their ad- 
visers. At the same time, it is intended to ensure that factual information — ■ 
such as a finding by the President's science advisers that the SST would deplete 
the earth's ozone supply — be made available to Congress when relevant to its 
responsibilities. 

JOINT RESOLUTION 

Supplementary to the bill I have just described, I am also introducing a joint 
resolution expressing the sense of Congress that an office or agency of the execu- 
tive branch should immediately make available all information requested by 
either House or any committee of Congress. The resolution is based on the same 
premises as the bill, and in my judgment would be a most useful reassertion 
by Congress of its constitutional prerogatives. 

CONCLUSION 

It has become common for administrations to apply a double standard to 
the release of information. Favorable classified information is frequently 
"leaked" to the press, while Congress and the public are denied information which 
could prove embarrassing to the Government. 



3003 

This legislation is born of the premise that Congress, as a coequal branch of 
our Federal Government, has both a right and a need to know information about 
all matters over which the Constitution gives it the power to legislate and the 
right of oversight. I can conceive in theory no justification for withholding 
from Congress information legitimately related to one of these functions. To keep 
Congress in the dark about the activities of the government is to consign it to 
a subordinate and subservient role in derogation of the intent of the Constitution. 

observers have frequently criticized Congress for allowing itself to become 
a second-class citizen in our constitutional system. There is altogether too much 
truth in this assertion. In failing time and again over the years to exercise the 
prerogatives it unquestionably possesses, Congress has materially contributed 
to the relative decline of its influence over our nation's course in the world. 
Tins need not have been the case, and the imbalance can be corrected if we in the 
Congress so desire. 

Mr. Keid. I will touch, if I may, therefore, only on certain aspects. 

It is clear, of course, during these hearings you will be hearing from 
Members of Congress who have experienced difficulty in obtaining 
information on relevant matters from the executive branch. I am sure 
you also know of the many instances of obstruction, delay, and out- 
right refusal by the executive branch to furnish information to the 
General Accounting Office when that agency has requested informa- 
tion in furtherance of its responsibilities under law, 

I might say that we have some instances here which we can talk 
about later, should you be interested, but I would highlight here one 
point. Frequently the executive just doesn't respond or it says it will 
have to look into the matter or it says it might be feasible or timely 
to reveal certain information, and this procedure seems to go on with 
the GAO as well as Members of Congress before there is a final ques- 
tion or not, and frequently the final question or not has no relationship 
to their invoking through the President any concept of executive 
privilege. 

I think that there has been a distinct erosion of prompt responses 
to the Congress and the GAO. As you know particularly, clearly 
within the past year alone, members of this subcommittee have been 
rebuffed in their efforts to obtain important information in their of- 
ficial capacity. On June 28, 1971, pursuant to statutory authority con- 
tained in 5 U.S.C. 2954, seven members of the committee sought to be 
furnished the so-called Pentagon papers study, only to be refused 
summarily. Congressman Moss and I were subsequently unsuccessful 
in securing the release of that study by the courts in a suit brought 
under the Freedom of Information Act. More recently, the President 
lias formally invoked the doctrine of executive privilege to deny this 
subcommittee the Country Field Submission Eeport for Cambodia, 
thereby reversing a longstanding policy of availability of such docu- 
ments to Congress. 

I am certain that the record of these hearings will establish beyond 
dispute that the executive branch makes a common practice of with- 
holding information from Congress when it deems such withholding 
desirable. What I would principally like to discuss here are the basic 
constitutional implications of this problem and a legislative remedy 
which I shall introduce tomorrow in the House. 

I might say that I believe that in the Senate and particularly 
Senator Fulbright is of the opinion that at this point in time the Senate 
Foreign Eelations Committee is only receiving something less from 
the Department of State. And. as you pointed out, in the past, Mr. 
Chairman, the field submission reports that we used to routinety get 



3004 

from AID and other agencies were so routine that effectively they 
were not read by all of the members, they were necessary, extremely 
necessary for the staff to analyze to see what the facts were, but it 
was hardly a matter of total urgency and even yet routine reports 
today are being denied this subcommittee. 

Under the heading constitutional implications a few words ; the bed- 
rock principle upon which our system is founded is accountability to 
the people. But accountability is a hollow word unless the American 
people, and in their behalf the Congress, have the information neces- 
sary to judge the performance of their Government. Moreover, with- 
out relevant information it is impossible for either the Congress or the 
people to participate meaningfully in the making of fundamental de- 
cisions which, from time to time, truly alter the course of our Nation's 
history. 

In their entirety, less so by this administration than any other in re- 
cent memory. To the contrary, the doctrine of executive privilege, 
which dates back to the days of President George Washington, has 
been repeatedly invoked over the years, both expressly and silently, to 
deny the Congress information which it sought in furtherance of its 
constitutional duties. The Constitution nowhere states that the Presi- 
dent may withhold information from Congress, but proponents of 
executive privilege claim an inherent right on his part to do so. 

Speaking for the present administration last June before this sub- 
committee, then Assistant Attorney General William H. Rehnquist, 
now Supreme Court Justice, strongly affirmed such a right as "implic- 
it in the separation of powers established by the Constitution." Yet 
even some of the Supreme Court cases cited in support of this proposi- 
tion seem to circumscribe its application. Specifically, in Reynolds v. 
United States (345 U.S. 1) the Court held that the executive branch 
does not have unlimited discretion to withhold information, stating, 
"the Court itself must determine whether the circumstances are ap- 
propriate for the claim of privilege." 

Mr. Chairman, it seems to me that, first, I don't think there is any 
inherent right of executive privilege, but to the extent that proposi- 
tion is argued, and if we go back to the days of George Washington, it 
is one thing to have an appropriate protection for staff papers of a 
very small staff dealing with the President ; it is quite another matter, 
it seems to me, when the White House staff gets measured in hun- 
dreds if not thousands, when many of these people have no daily and 
frequently no direct access at all to the President, and to cover all of 
these by any so-called doctrine of executive privilege seems to me to 
be a very different matter indeed. 

The other thing that disturbs me is that the administration, and it 
is not unique to this, has frequently indulged in a double standard. 
Matters of highest secrecy, top secret, were often leaked or made avail- 
able or handed over to the press when it placed the administration in 
a good light, but the minute something develops which is secret that 
places the administration in an unfortunate light and anyone leaks 
that, that immediately becomes a matter of great concern, and I don't 
- think the administration or any administration can have it both ways. 
Basically, the principle here, it seems to me, is accountability to the 
Congress and American people and accountability has reached to 
things that go wrong as well as those that go right. 



3005 

Because the question has never been settled by the courts, Con- 
gress cannot rely on firm judicial authority to support its claim for 
information. In the absence of an accommodation between the two 
branches of Government, Congress must employ other means to make 
effective its right to know. 

Within memory, the Congress has taken no action to exercise its 
power of the purse following a refusal by the executive branch to fur- 
nish requested information. This is largely due, I think, to a lack of 
institutional procedures which would facilitate such action. The or- 
ganization of Congress and the requirement of concurrent action by 
the Houses in order to legislate a denial of appropriations simply do 
not lend themselves to prompt and decisive application of financial 
sanctions in response to specific instances of withholding by the 

GXOCLltlVG. 

The biil I shall introduce, with Congressman Moss, as an amend- 
ment to the Freedom of Information Act, establishes a procedure 
designed to overcome this impediment. Essentially it provides that: 

(1) when any committee of Congress requests information from the 
executive branch, the head of the agency concerned shall immediately 
furnish all the information requested ; 

(2) the agency head shall certify to the requesting committee 
whether or not full and complete disclosure of the requested informa- 
tion has been made : 

(3) upon resolution of the requesting committee, funds for the pro- 
gram or activity in question shall automatically be suspended with- 
out further action being required by Congress if— (a) an agency head 
fails to make a requested certification; (b) an agency head certifies 
that full and complete disclosure of the requested information has not 
been made; or (c) an agency head falsely certifies that full and com- 
plete disclosure of the requested information has been made; 

(4:) the GAO shall take all steps available to it under law, includ- 
ing refusal to countersign relevant warrants drawn upon the U.S. 
Treasury, to effectuate a suspension of funds. 

In effect, the withholding of information by the Executive would 
trigger a fund cutoff previously built into law by this legislation of 
general applicability. Because no new legislation would be needed at 
the time to deny funds, effective response on the part of the Congress 
would be greatly facilitated. 

A word about the certification procedure; it is important to note 
that this legislation does not vest in Congress any power it does not 
already possess under the Constitution. It merely streamlines the pro- 
cedure by which this power can be exercised and, as a practical matter, 
makes its exercise more possible. 

Nor does this legislation, in my view, risk irresponsible action by 
a committee of Congress. Every Member of Congress is sensitive to 
the gravity of a fund cutoff under the conditions contemplated in this 
legislation. It is inconceivable that a majority of the members of a 
full committee would vote to initiate the fund cutoff process without 
first giving the most careful and sober consideration to the circum- 
stances and ramifications of their action. For this reason, the procedure 
would not be invoked lightly or with great frequency, but only when 
fundamental disagreements between the two branches could not be 
resolved in any other way. 



3006 

The trustworthiness of the Congress or one of its committees to pre- 
serve the secrecy of such information when necessary and appropriate 
should not be doubted. Committees of Congress regularly receive 
secret information from the executive branch, as they have both a 
right and a need to do. The national security has never suffered as a 
result, for committees of Congress are no less responsible than their 
counterparts in the executive branch. 

Under the terms of this legislation the executive branch would re- 
tain at all times the ability to avert a threatened fund cutoff. It need 
simply furnish the requested information and certify to the commit- 
tee that it has made full and complete disclosure of the information 
sought. If such a certification were made, funds could not be cut off 
(unless the certification were subsequently found by the Comptroller 
General of the United States to have been false ) . Funds could be cut 
off upon resolution of the requesting committee if the executive branch 
either (1) failed within the required time to make any certification of 
whether or not full disclosure had been made or (2) certified that full 
disclosure of the requested information had not been made. 

By making the certification procedure the focal point on which a 
fund cutoff would depend, all subjectivity and ambiguity are removed 
from the process. The committee would not be in the position of having 
to judge for itself whether all the requested information had been 
furnished before resolving to cut off funds. In many cases, if a com- 
mittee had to make such a judgment, it could not be certain whether it 
would be justified in cutting off funds, because it would not know 
whether full disclosure had been made. 

I wish to make clear this means disclosure of all information not 
requested, not merely all information which the executive branch 
deems it appropriate to disclose. 

A word about executive privilege: Under this legislation the in- 
vocation of executive privilege by the President would not avert a 
fund cutoff. Should the President choose not to provide Congress the 
requested information, for whatever reason, funds would be cut off. 
The President might prefer to lose funds than to disclose the informa- 
tion to Congress, but that is the hard — and the only — choice he would 
have. 

I should make clear, too, that this legislation exempts no office or 
agency within the executive branch from its provisions. Specifically, 
the President and establishments within the Executive Office of the 
President are included, so that no official, office, or agency may claim 
some undefined privilege flowing from his or its relationship with the 
President. Since the President is included, a fortiori, so are all agen- 
cies and offices in the executive branch which are subordinate to the 
President. 

However, the bill also provides that the President or head of any 
agency shall not be required to disclose the nature of any advice, rec- 
ommendation, or suggestion made to him by a member of his staff 
or of an agency of the United States in connection with matters solely 
within the scope of his official duties, except to the extent that such 
information may be required to be made public or made available to 
Congress by some other provision of law. Any form of information in- 
cluded within or forming the basis of such advice, recommendation, or 
suggestion is not protected from disclosure. 



3007 

The obvious purpose of this provision is to protect the confidential- 
ity of staff relationships and to encourage free debate among agency 
heads and their advisers. At the same time, it is intended to insure 
that factual information— such as a finding by the President's science 
advisers that the SST would deplete the earth's zone supply or the 
Amehitka report — be made available to Congress when relevant to its 
responsibilities. 

Supplementary to the bill I have just described, I am also introduc- 
ing a joint resolution expressing the sense of Congress that an office 
or agency of the executive branch should immediately make available 
all information requested by either House of any committee of Con- 
gress. The resolution is based on the same premises as the bill, and in 
my judgment would be a most useful reassertion by Congress of its 
constitutional prerogatives. 

It has become common for administrations to apply a double stand- 
ard to the release of information. Favorable classified information, 
which I mentioned earlier, is frequently leaked to the press, while 
Congress and the public are denied information which could prove 
embarrassing to the Government. - 

This legislation is born of the premise that Congress, as a coequal 
branch of our Federal Government, has both a right and a need to 
know information about all matters over which the Constitution gives 
it the power to legislate and the right of oversight. I can conceive in 
theory no justification for withholding from Congress information 
legitimately related to one of these functions. To keep Congress in 
the dark about the activities of the Government is to consign it to a 
subordinate and subservient role in derogation of the intent of the 
Constitution. 

Observers have frequently criticized Congress for allowing itself to 
become a second-class citizen on our constitutional system. There is- 
altogether too much truth in this assertion. In failing time and again 
over the years to exercise the prerogatives it unquestionably possesses, 
Congress has materially contributed to the relative decline of its in- 
fluence over our Nation's course in the world. This need not have been 
the case, and the imbalance can be corrected if we in the Congress so 
desire. 

I just might add in conclusion, Mr. Chairman, that we have had 
about three recent instances wherein the Executive has withheld infor- 
mation clearly vital and appropriate to the Congress and clearly in 
derogation, in my judgment, of the constitutional responsibilities that 
pertained to the President and clearly in violation of shared powers 
which, T think, the Constitution imposes on both the Executive and 
the Congress. 

First, I refer to the reports that have been carried in newspapers 
in recent days about the statements of the Vietnamization program by 
members of the executive in 1969. Had that information been made 
available either in executive session or in any fashion to the Congress 
I think that it would have shown that the Vietnamization program 
was one of very grave risk, quite unlikely of any major success and 
yet the Executive came before thhe Congress repeatedly asking for 
funds for this program when they had in their own possession infor- 
mation forecasting very serious doubt about this. At the least, candor 
would have required the administration to be honest, to have said 



3008 

that this program has very serious pitfalls: we wish to proceed in any 
event. To my knowledge that point was never made with clarity or 
precision. 

A second instance that troubled me was the failure of the adminis- 
tration during the recent events in the subcontinent to at any point 
report to the Congress that they were going to tilt toward Pakistan and 
that a fundamental decision had been made, and this was a foreign 
policy judgment of very serious consequences and weight. 

More recently we have seen the instance of the renewed bombing 
and particularly the mining of Haiphong and other harbors. 

I spent the day prior to the announcement of the President doing 
what little I could as one Member to facilitate action by the House in 
consonance with the Senate toward the end that a bipartisan group 
would meet with the President prior to any unilateral decision. Not 
only were these efforts not successful, but the President and the White 
House explicitly rebuffed requests from Senator Mansfield and Speaker 
Albert to meet for this purpose. There was a ritual laying on of hands 
at 8 o'clock, 1 hour before the President went on the TV, but inter- 
estingly enough the Speaker of this House. Mr. Chairman, was not 
apprised by the administration either of the fact the President was 
going to make a speech or the fact that he was finally going to be called 
down to the White House at 8 o'clock until very late in the day and 
he first learned of this from the press. 

Not only was this, in my judgment, discourteous to the Speaker but 
it is a rather arrogant display of Executive decisionmaking that 
clearly requires joint action under shared powers of the Congress 
and the Executive. 

I might add, Mr. Chairman, that I talked with the man who I be- 
lieve to be the most knowledgeable in the field of international law. 
He believed in this regard that the steps we were taking approached an 
act of war and that the action the President was going to take could 
clearly violate international law. Coming from what almost could 
be said the authority in the field, it is an interesting question here 
that the President made no effort to consult with the Congress, ex- 
plicitly refused to do so, and when the briefing did occur he partici- 
pated in it only for 20 minutes and it was essentially as I understand 
it, just that, no effort to make a joint or shared decision but just a 
very routine briefing after the fact, after the orders had been issued 
and after all of the decisions had been put into motion. Interestingly 
enough, the President didn't even have the courtesy in this case to 
call in the Soviet Ambassador, he left this to an assistant, and great 
things hung on the balance, the summit meeting and SALT talks, 
both of which may now proceed, but you would think when we were 
entering in an area that could be an act of war, which is very explicitly 
dealt with in the Constitution, that the Executive would want to 
work with the Congress. This is not the case and, therefore, it adds, I 
believe, a certain urgency to your deliberations because we saw on that 
day a unilateral act of the President, not one that I am sure was 
agreed to unanimously by members of his administration, one that I 
suspect the Department of State was not apprised of until quite late, 
and this means that increasingly the powers are falling into hands of 
one man. 



3009 

This was not the intent of the Founding Fathers and I think one 
of the best remedies is for forthright hearings by this subcommittee, 
hopefully actions by this committee, on appropriate legislation and 
an awakening of the American people to the fact there has been a 
serious and fundamental erosion of congressional powers which in 
matters of war and peace could become very dangerous indeed. 

Thank you. Mr. Chairman. 

Mr. Moorhead. Thank you, Mr. Eeid. I think of your experience 
not only in the newspaper Held, but also in the foreign affairs field 
as Ambassador. As I listened to your statement, I again regret that you 
are not sitting up here beside me instead of sitting out there; but cer- 
tainly we appreciate your continued interest in the work of this 
subcommittee and we look forward to analyzing the legislation and 
joint resolution which you oiler. 

I think the procedure Ave should follow is to hear from Congressman 
Wolff and then have both of you. if you would be willing to stay for 
a bit. I think the statements that both of you have made have stimu- 
lated a lot, of thought on our part and there are some questions we 
would like to offer and have a dialog between the members of the 
subcommittee and the witnesses. 

So, Mr. Wolff, would you proceed, sir ? 

STATEMENT OF HON. LESTER I. WOLFF, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF NEW YORK 

Mr. Wolff. Thank you very much. Mr. Chairman. I, too, want to ex- 
press my thanks to you and the subcommittee for giving me this op- 
portunity to testify on the question of access to information, a subject 
which is'of very vital concern to every Member of Congress. 

As you may be aware, I have the privilege of serving on the House 
Foreign Affairs Committee. In fulfilling my duties on this committee. 
I have had to deal with the Department of State on numerous occa- 
sions. Unfortunately, I have not always received the kind of coopera- 
tion which is essential to the proper discharge of my duties as a Mem- 
ber of this body. 

Although I* could cite many examples of this lack of cooperation 
which, I might add, sometimes approach outright obstruction, I would 
like to describe in detail three recent problems which I have had with 
the State Department. 

The most recent instance occurred this February after I had returned 
from a study mission to Europe and the Far East involving inter- 
national narcotics traffic. During the early part of January, I attended, 
along with the Subcommittee on Europe, a briefing by the U.S. Am- 
bassador to Turkey and other Embassy personnel on the subject of 
opium cultivation and traffic in Turkey.' Mr. Rosenthal, of New York, 
chairman of the mission, requested me to record the meeting. Prior to 
the briefing in Istanbul, when we were going into the session. I re- 
quested clearance from the Embassy staff to take notes on a tap" record- 
er. I placed my personal tape recorder on a table during the meeting 
where it was highly visible. Unlike some other types of clandestine 
recorders that are used perhaps at some times on Members of Congress, 
this was highly visible and since I felt that some of the material which 



3010 

was discussed at this meeting could possibly be of a sensitive nature, to 
safeguard its security, I requested the Embassy to return the tape by 
diplomatic pouch to me at my office in Washington. All other material 
which I sent back in this way arrived ; except the tape on the drug- in- 
formation, which is now so secure I can't secure it for myself. I can't 
obtain it for myself. 

I launched an inquiry with Secretary Abshire, Director of Congres- 
sional Relations for the State Department, and was informed that the 
Department would withhold the tape and classify it. Imagine the De- 
partment of State intercepting either a Congressman's personal prop- 
erty or the property of the U.S. Congress, keeping it, and then classi- 
fying its contents. 

For 2 months I had to attempt to reclaim my tape, particularly 
since I wished to review certain information before holding a drug- 
related meeting in March. I was told that the Department of State 
was preparing a transcript of the tape which I have with me, and 
I asked of the man delivering the tape some sort of receipt, and I 
have the handwritten receipt here from Colgate Prentice, Deputy 
Assistant Secretary for Congressional Relations, and it says: 

This is to certify that the Department of State is in possession of a tape 
recording of American Ambassador Hanley's January 13 briefing of Repre- 
sentative Rosenthal's delegation which Ambassador Hanley has stated was 
recorded without his knowledge. 

This is totally erroneous since I myself went to a member of his staff 
and told him I was making this recording and the tape recorder was 
right on the table in front of him. 

They have also said that certain sections shall be considered secret 
and they furnished the transcript to me. 

Mr. Moorhead. Is the transcript complete so far as you know? 

Mr. Wolff. I don't know whether it is complete. I haven't had an 
opportunity of going through it all. They did bring the tape back to 
me one day and it is about a 2-hour tape, and to try to go through a 
2-hour tape with our time limitations is somewhat difficult. But 
strangely enough in parts of it they say that the information is unin- 
telligible and obscured in some fashion. I must say that thev are still 
holding the tape; they apparently are afraid I might give out not only 
the Ambassador's words but his voice. I would like to now declassify 
part of the State Department classification, which is secret, which 
happens to be nry very own question which they have classified secret 
now. 

Mr. Moorhead. Mr. Wolff, we have again an example of frustra- 
tion. Under the rules of the full committee, which this subcommittee 
operates under, we must receive information that is labeled classified, 
no matter how ridiculous it is, in executive session, so if the portions 
you are going to read is still labeled this way, we will withhold and 
at the conclusion of your 

Mr. Wolff. I request the committee declassify my questions at a 
later time. 

Mr. Moorhead. Let us go off the record for a side bar consultation 
with counsel to the minority. 

(Discussion off the record.) 

Mr. Moorhead. I think this is another example of how we in the 
Congress tend to hamstring ourselves, but now let us go back off the 
record. 



3011 

(Discussion off the record.) 

Mr. Moorhead. We have completed our side bar discussion here. 
We will have witnesses from the State Department before the sub- 
committee on Thursday and we would like to have either the transcript 
submitted to the subcommittee for study and use in questioning the 
State Department officials, or at the end of our public hearing we can 
have you road the relevant statements that you think are important 
into the record in executive session. 

It puts me into the most embarrassing position, frankly, to be chair- 
man of a Freedom of Information Subcommittee talking about hear- 
ing testimony in executive session, but I do believe that I have to fol- 
low the rules of the committee until I can get them changed, but I 
think we can accomplish your objective. The timeliness is very fortui- 
tous with the State Department coming up before us on Thursday. 

.Mr. Wolff. I think you have already accomplished my objective to 
show the utter nonsense attached with the classification of this type of 
material and I am sorry to have put you in an embarrassing position. 

Mr. Mookiiead. No, no, you have not. We welcome your testimony. 
We would like to see that transcript to help us phrase questions of the 
State Department on Thursday. 

Mr. Wolff. I would be delighted to turn it over to you but I do be- 
lieve that the cavalier treatment of personal property of a Member of 
Congress is nothing short of intolerable and represents a direct chal- 
lenge by the executive to congressional autonomy. 

By the way, I had a congressional seal on the tape recorder as well, 
so that either on the basis of the personal property of a 3 [ember of Con- 
gress or on the basis of the property of the Congress itself, the tape 
that was taken is my property and not the State Department's prop- 
erty and they have confiscated it. That is all that they have done. 

But leaving that and going to another type of treatment that took 
place last October when I felt impelled to introduce a resolution of 
inquiry directing the Secretary of State to furnish the Committee on 
Foreign Affairs all communications regarding the Vietnamese election, 
including all documents relative to the conduct and use of U.S. -financed 
public opinion surveys. We in the House and the American people 
have a right to know of any participation of the United States in the 
Vietnamese election. Our voiced purpose in being in Vietnam was the 
right of self-determination. I introduced this resolution precisely be- 
cause I felt that the lack of cooperation on the part of the Department 
of State necessitated firm action by the Congress itself concerning the 
availability of information necessary to the proper discharge of our 
responsibilities in the area of this Nation's foreign policy. 

One has only to read the Congressional Record of October 20 to 
know that the distinguished chairman of the Foreign Affairs Commit- 
tee received a letter dated October 8 from Secretary Abshire which 
stated: 

The United States Information Agency has informed us that the Joint United 
Slates Public Affairs Office (JUSPAO) in Vietnam has not conducted any polls 
or surveys, formal or informal, concerning or involving the Vietnamese election. 

Subsequent to that time and only after I had announced that I had 
in my possession sworn statements from persons who had participated 
in the conduct of these polls, did Secretary Abshire write further that, 
"I regret that there was this inaccuracy in my last letter.'* Abshire ex- 
plained, in a letter dated October 1G that : 



3012 

We have now been informed that between October 1970 and February 1971 
four regular opinion surveys were conducted by JUSPAO containing questions 
explicitly directed to the Vietnamese elections. 

These surveys include questions relating to Vietnamese awareness of the presi- 
dential election, attitudes on the effect of the election, the kind of anticipated is- 
sues and characteristics of hypothetical candidates. These surveys which are 
included are classified "limited official use only." I regret that this inaccuracy 
was in my last letter. 

However, what they did not say is that this limited official use, was 
limited to President Thien and not even to our own people, which was 
subsequently included in a letter to the chairman of the committee, 
which I attempted to get declassified and finally was able to get declas- 
sified. Because of the political sensitivity of the question, Embassy of- 
ficials classified the results and did not include them in the surveys 
classified for official use only, which was distributed to interested of- 
ficials in the U.S. Mission in Vietnam and the U.S. Government 
agencies in Washington. 

The Embassy informed us that the results of this particular poll were dis- 
cussed with President Thieu, but were neither discussed with other Vietnamese, 
nor given any distribution within the Vietnamese Government. 

I think this is incredible, I think it is disgraceful to put a classifi- 
cation for "limited official use only' 5 and for that to mean for limited 
official use of Mr. Thieu, the President of Vietnam. 

Mr. Reid. If my colleague will yield on that point I might just add 
that several witnesses who have appeared before this committee also 
came to me and stated that one of the reasons they resigned from their 
service in Vietnam was because of these particular polls that were 
being done with the clear purpose of facilitating and making move 
possible wise decisions by Thieu in the upcoming election and thnv 
thought it was improper use of U.S. funds and they up and resigned. 

Mr. Wolff. I thank the gentleman. Actually what the State Depart- 
ment was hoping to keep quiet was the fact that American personnel 
were conducting surveys of public opinion not for our own informa- 
tion, but for the information of President Thieu's reelection campaign. 
Much of the raw data of these surveys, which it should be pointed out 
bears directly on the attitudes of the Vietnamese people toward the 
war, is still classified. 

I might add as well that from this information there were names of 
various people who were opposed to the attitudes of the administration 
in Vietnam. As a result of this President Thieu was made aware of 
these people who were opposing him and was able to get rid of them 
before the election so that no one else could get on the ballot. This was 
our participation in the situation and elections of Vietnam, which is 
still classified from the American public. 

The final example of liaison work between the State Department and 
myself occurred in connection with a remark I made during an execu- 
tive session of the Near East Subcommittee to the effect that I felt that 
our Ambassador to Israel might not be adequate to the demands of his 
job. Several other members of the subcommittee echoed my sentiments. 
The State Department, through the committee staff, requested me to 
delete this from the transcript of the hearing. My refusal to do so re- 
sulted in the almost 1-year delay in publishing the hearings. 

Mr. Chairman, I could cite other examples. I bring before you the 
recent hearings that we held on the foreign assistance of 1972 where I 



3013 

brought to the attention of the American people the link that has oc- 
curred between people who are in M;e Thai government and who are 
engaged actively in the drug traffic. When I said this it upset the State 
Department substantially because of the fact that I introduced a 
resolution before the Congress to cur off all aid to Thailand until such 
time as they take steps that are necessary to cut the drug traffic through 
Thailand. Well, I was told to keep it quiet and in fact I read from the 
testimony of Mr. Rogers. He said : 

I would appreciate it when you have information of this kind you would lot us 
have it privately, we will do everything wo can to convey to the government to 
take proper action. And then 1 went on to say that our Bureau of Narcotics and 
Dangerous Drug people in Hong Kong know the names of the people who are 
trafficking in drugs and 1 cannot got that information. Can you set it I'm - me? 

The Secretary said he will gladly give me any information that we 
have and be glad to give any information that is available. "I do think 
that in these cases if we could work quietly it would be better, it causes 
difficulty with other governments." 

However, the fact is that with all of this there is information that 
has been on the record and I can show you that Mr. Steele and Mr. 
Murphy of the Foreign Affairs Committee brought this information to 
the attention of the State Department almost a year ago and absolutely 
nothing has been done on it and then the} T say bring this information 
to us quietly. 

I think it is about time that some people started to shout about some 
of the information. 

In summary, Mr. Chairman, it has been my experience that I have 
had to fight to get information and even to keep information. Access to 
the kind of information described is, I feel, vital to my duties as a 
Member of Congress. We cannot allow any agency or department to 
withhold information from a Member of Congress. Intrusions of the 
executive branch are such that we must take effective action to prevent 
any further erosion of the constitutionally mandated separation of 
powers. I hope that these hearings will lead to some changes in the 
current intolerable situation. Thank you. 

(Hon. Lester L. Wolff's prepared statement follows:) 

Prepared Statement of Hon. Lester L. Wolff, a Representative in Congress 
From the State of New York 

Mr. Chairman and members of the committee, I would like to thank you for 
giving me this opportunity to testify on the question of access to information, 
a subject which is of vital concern to every Member of Congress. 

As you may be aware, I have the privilege of serving on the House Foreign 
Affairs Committee. In fulfilling my duties on this committee, I have had to 
deal with the Department of State on numerous occasions. Unfortunately. I have 
not always received the kind of cooperation which is essential to the proper dis- 
charge of my duties as a Member of this body. 

Although I could cite many examples of this lack of cooperation which, I 
might add, sometimes approach outright obstruction. I would like to describe in 
detail three recent problems which I have had with the State Department. 

The most recent instance occurred this February after I had returned from a 
study mission to Europe and the Far East involving international narcotics 
traffic. During the early part of January, I attended, along with the Subcommit- 
tee on Europe, a briefing by the U.S. Amhassador to Turkey and other Em'assy 
personnel on the subject of opium cultivation and traffic in Turkey. Mr. Kn-en- 
thal of New York. Chairman of the mission, requested me to record the meeting. 
Prior to the briefing in Istanbul, I requested clearance from the Embassy staff to 
take notes on a tape recorder. I placed my personal tape recorder on a table 
during the meeting where it was highly visible. 

76-25.*i— 72— pt. 8 6 



3014 

Since I felt that some of the material which was discussed at this meeting 
could possibly be of a sensitive nature, I requested the Embassy to return the 
tape by diplomatic pouch to me at my office in Washington. All other material 
which I sent back in this way arrived ; the drug tape did not. 

I launched an inquiry with Secretary Abshire, Director of Congressional Rela- 
tions for the State Department, and was informed that the Department would 
withhold the tape and classify it. Imagine the Department of State intercepting 
either a Congressman's personal property or the property of the U.S. Congress, 
keeping it, and then classifying its contents. 

For 2 months I had to attempt to reclaim my tape, particularly since I wished 
to review certain information before holding a drug- related meeting in March. I 
was told that the Department of State was preparing a transcript of the tape and 
was going to mark those sections which it considered secret. On March 21. I 
finally received the transcript of my own tape. The tape itself, as this IOU indi- 
cates! is still being held by the State Department which is apparently afraid that 
I might give out not only the Ambassador's words, but also his voice. My very 
own questions have been classified "secret" and the Department even censored a 
four-letter word uttered by the Ambassador. Such cavalier treatment of the per- 
sonal property of a Member of Congress is nothing short of intolerable and repre- 
sents a direct clmllenge by the executive to congressional autonomy. 

Another illustration of this type of treatment took place last October when I 
introduced a resolution of inquiry directing the Secretary of State to furnish the 
Committee on Foreign Affairs all communications regarding the Vietnamese 
election, including all documents relative to the conduct and use of U.S.-financed 
public opinion surveys. I introduced this resolution precisely because I felt that 
the lack of cooperation on the part of the Department of State necessitated firm 
action by the Congress itself concerning the availability of information necessary 
t-> the proper discharge of our responsibilities in the area of this Nation's foreign 
policy. 

One ha s only to read the Congressional Record of October 20 to know that the 
distinguished chairman of the Foreign Affairs Committee received a letter dated 
October 8, from Secretary Abshire, which stated, "The United States Information 
Agency has informed lis that the Joint United States Public Affairs Office 
(JUSPAO) in Vietnam has not conducted any polls or surveys, formal or in- 
formal, concerning or involving the Vietnamese election." 

Only after I had announced that I had in my possession sworn statements from 
persons who had participated in the conduct of these polls, did Secretary Abshire 
write further that, "I regret that there was this inaccuracy in my last letter." 
Abshire explained, in a letter dated October 16, that, "We have now been in- 
formed that, between October 1970 and February 1971 four regular opinion 
surveys were conducted by JUSPAO containing questions explicitly directed to 
the Vietnamese elections." The surveys were then released to the committee, 
classified "Limited Official Use." 

On October 10. Secretary Abshire again wrote to Chairman Morgan about 
these surveys in a letter that was classified confidential. At my insistence, this 
letter has been declassified. Abshire stated that, "The Embassy informed us that 
the results of this particular poll were discussed with President Thieu. but were 
neither discussed with other Vietnamese, nor given any distribution within the 
Vietnamese Government." 

Tims what the State Department was hoping to keep quiet was the fact that 
American personnel were conducting surveys of public opinion not for our own 
information, but for the information of President Thieu's reelection campaign. 
Much of the raw data of these surveys, which it should be pointed out bears di- 
rectly on the attitudes of the Vietnamese people toward the war, is still 
classified 

The final example of liaison work between the State Department and myself 
occurred in connection with a remark 1 made during an executive session of the 
Near Fast Subcommittee to the effect that I felt that our Ambassador to Israel 
might not be adequate to the demands of his job. Several other members of the 
subcommittee echoed my sentiments. The State Department, through the com- 
mit; ee si a ft, requested me to delete this from the transcript of the hearing. My 
refusal to do so resulted in the almost 1-year delay in publishing the hearings. 

In summary, .Mr. Chairman, it has been my experience that I have had to fight 
to get information and even to keep information. Access to the kind of informa- 
tion described is, I feel, vital to my duties as a Member of Congress. We cannot 
allow any agency or department to withhold information from a Member of 
Congress. Intrusions of the executive branch are such that we must take effective 



3015 

action to prevent any further erosion of the constitutionally mandated separation 
of powers. I hope that these hearings will lead to some changes in the current 
intolerable situation. Thank you. 

Mr. Moorhead. We thank you very much, Mr. Wolff, for your con- 
trolled outrage. I think that you have reason to have uncontrolled 
outrage, but you have certainly kept your cool. 

1 just wish that all 535 Members of the Congress of both Houses 
could hear this testimony because if Ave could collectively realize that 
we are being denied access to information, as you point out, Mr. Wolff, 
and that the denial of access to information distorts the balance of 
power between branches of government, as you point, out, Mr. Reid, I 
think we might get some action. But I think it is going to take us a 
lot of sermonizing and talking to other Members before we can show 
others how we are being had by the executive branch and how we are 
failing in our duties to the American people. We probably are not 
going to convert the executive branch whichever party is in control. 
We are going to have to stand up collectively for the rights of all the 
Members of Congress of both parties, who are representatives of the 
American people. 

Mr. Reid. Mr. Chairman, on that point I might mention very briefly, 
if I might, a letter that I received on November 29, 1971, from Elmer 
Staats, and I will only quote from part of it. He said: 

As brought out in the enclosed documents, our reviews are hampered and 
delayed more by time-consuming delaying tactics than by formal denials of 
claims of executive privilege. These delays often are the equivalent of de facto 
denials. Accordingly we believe there is a need for additional legislation of the 
type which will assist the General Accounting Office in gaining timely access 
to the information that it requires. 

I might add that I will submit for the hearing record two examples 
of denials of access to information to the General Accounting Office. 
( )ne deals with the review of U.S. occupation costs in Berlin, and the 
other was a review of U.S. -supported bases in Vietnam. I might read 
three sentences to the latter : 

In September, 1970. the GAO requested permission to visit Thai and Korean 
.camps in Vietnam in order to observe whether these camps had an excess amount 
of U.S. supplies. The review would have consisted solely of visual observations 
and talks with U.S. military liaison personnel stationed at the camps. 

The request was denied at the local level, and the denial was subsequently 
reaffirmed by the Department of State (in the Thai case) and the Department 
of Defense (in the Korean case). 

In the Thai case, the reason given for the denial was that the GAO should 
have no need to consult foreign officials or agencies. Xo reason was cited in 
the Korean ease (insofar as GAO accounts of the incident indicate). 

I would submit the full memorandum for the record at this point, 
if I might. 

To say categorically that the GAO should have no need to consult 
foreign officials or agencies is an interesting statement of executive 
policy. 

Mr. Moorhead. Without objection the memorandum will be made 
a part of the record. We would also like to have the letter or relevant 
portions of it made part of the record because tomorrow we will have 
the Deputy Comptroller General before this subcommittee and we 
want to use that opportunity to cite examples to him and have him 
cite examples to us where GAO. the arm of Congress, has been denied 
access to information. 

(The documents referred to above follow:) 



3010 

October 20, 1971. 
Hon. Elmer P». Staats, 
Comptroller General of the United States, 
General Accounting Office, 
Washington, B.C. 

Peak Mb. Staats : It was good meeting with yon and your associates yester- 
day and discussing the problems frequently encountered in endeavoring to obtain 
information from the executive branch of the Government. 

Pursuant to the matters we touched upon, I would very much appreciate your 
apprising me of the number of instances in the past few years where the execu- 
tive branch has expressly refused or otherwise failed to furnish specific infor- 
mation requested by the General Accounting Office, the reasons commonly cited 
to .justify such refusals or failures, and detailed case histories of the more fla- 
grant of such refusals or failures, together with supporting documentation where 
available. . 

More specifically, I would be grateful if you could furnish me copies of : The 
State Department circulars sent to all foreign missions setting rules for the re- 
lease of information to the GAO ; the letter from Mr. Stuart French of the De- 
fense Department asserting that the GAO has a right to fiscal records only ; the 
recent letter of President Nixon asserting executive privilege to avoid a cutoff of 
funds under the provisions of the Foreign Assistance Act ; and any other letters 
or memorandums you might have bearing upon the policy of the executive 
branch with regard to the release of information. 

As to the case histories, I would be interested to have a breakdown of the 
lengths of delav in furnishing requested information, particularly as to cases 
still current. Additionally, it would be helpful if some tabulation could be pro- 
vided as to the reasons cited for refusal to supply information : executive privi- 
lege, "internal working papers," security classification, "not within the juridic- 
tion of our agency," etc. . 

At our meeting we discussed the inadequacy of existing law to aid the GAO in 
obtaining information from the executive branch, the lack of subpena power 
being a major problem. It was indicated that the GAO has not received full co- 
operation from Congress over the years in seeking to strengthen its position in 
this regard. I would appreciate it if you could amplify on this, making any sug- 
gestions you might have as to how the law can be amended to establish effective 
procedures in this area. 

My thanks for your cooperation and assistance. 

Sincerely yours, 

Ogden R. Reid. 



Comptroller General of the United States, 

Washington, D.C., November 10, 1971. 
Hon. Ogden R, Reid, 
House of Representatives, 
Washington, D.C. 

Dear Mr. Reid: This has reference to your letter of October 20, 1971, and 
our prior meeting on the problems we frequently encounter in obtaining informa- 
tion from the executive branch of the Government. Enclosed herewith is a 
package of documents which contain information pertinent to this matter. I 
believe these documents are a good background on our access problems and will 
provide vou with the information you requested. 

With respect to your request for examples wherein the executive branch has 
refused, or otherwise failed to furnish, information requested by the GAO, we 
have included the following: _ . , 

Tab A— Statement of Oye V. Stovall. Director, International Division, I >. 
General Accounting Office before the Senate Appropriations Committee, Sub- 
committee on Foreign Operations, June 24, 1971. . 

Tab B —Letter from the Comptroller General of the United States to the chair- 
man Senate Foreign Relations Committee, B-163582, September 10, 1971, en- 
closing a compilation of GAO access to records problems encountered in mak- 
ing audits of foreign operations and assistance programs. 

These two documents present a broad picture, as well as specific examples, of 
the problems we have encountered in obtaining access to information, and the 
efforts to resolve these matters which we have exercised both within the ex- 
ecutive branch and the Congress. 



3017 

Most of our problems have been encountered in our reviews of international 
activities. In the Department of Defense these relate primarily to military assist- 
ance activities. We are continuously working with officials of the Department of 
Defense to resolve these issues as evidenced by my letter to Secretary Laird, 
dated October 13, 1971 (tab C). The enclosures to that letter include copies of 
instructions and directives to local commands which illustrate the current re- 
strictive measures we must contend with. 

We have experienced similar problems within the Department of Slate. The 
most serious was a denial by the Department of access to the records relating to 
U.S. occupation costs in Berlin, Germany. On April 20, 1971, I addressed separate 
letters to appropriate chairmen of House and Senate committees on this mat- 
ter and I have included a copy of that letter as tab D. A copy of State Depart- 
ment Foreign Affairs Manual, 4 FAM 934, involving release of information to 
GAO is included as tab E. 

There have been attempts in the Department of Defense to limit our access 
to information to that strictly of a financial nature. Subsequent to our testimony 
before the Foreign Operations Subcommittee of the Senate Committee on Ap- 
propriations, I received a letter from the Principal Assistant to the Assistant 
Secretary of Defense, International Security Affairs. I have included a copy of 
this letter (tab F) which illustrates an attempt of this nature. 

The GAO has always taken a firm position on its right of access to information 
pertinent to its work. However, in the absence of effective means of enforcing 
such right to access to needy information is granted at the discretion of 
executive agencies. The Deputy Comptroller General testified before the Senate 
Committee on the Judiciary on S. 1125 with regard to the exercise of executive 
privilege. A copy of his testimony is included at tab G. Recently the President 
exercised his right of executive privilege in regard to a request of the Senate 
Foreign Relations Committee for the Five-Year Plan for Military Assistance. A 
copy of the President's memorandum of August 30, 1971, is enclosed (tab H). 

As brought out in the enclosed documents, our reviews are hampered and 
delayed more by time-consuming delaying tactics than by formal denials or 
claims of executive privilege. These delays often are the equivalent of de facto 
denials. Accordingly, we believe there is a need for additional legislation of a 
type which will assist the GAO in gaining timely access to the information it 
requires. As we discussed in our meeting, we are now considering various alterna- 
tive courses of action and we will be advising you of our suggestions in the near 
future. 

I am pleased to be of assistance to you in this matter. 
Sincerely yours, 

Elmer B. Staats, 
Comptroller General of the United States. 



Comptroller General of the United States, 

Washington, D.C., November 29, 1911. 
Hon. Ogden R. Reid, 
House of Representatives, 
Washington. D.C. 

Dear Mr. Reid : In our report to you of November 10, 1971, in which we 
detailed the difficulties the General Accounting Office has encountered in obtaining 
information from the executive branch of the Government, we advised that 
our reviews are hampered and delayed more by time-consuming delaying 
tactics than by formal denials or claims of executive privilege and that these 
delays are often the equivalent of de facto denials. We stated it to be our view 
that there is need for additional legislation of a type which will assist us in 
gaining timely access to needed information, that we were considering alternative 
courses of action, and that we would be advising you of our suggestions in the 
near future. 

As you know. Senator Ribicoff's bill. S. 4432. 91st Congress, had as its purpose 
to strengthen and broaden the duties and operations of the General Accounting 
Office in order that it could provide more effective service to the Congress. It 
contained provisions which included: (1) the intervention of appropriate 
committee chairmen in disputes between the Comptroller General and the execu- 
tive departments over access to records (2) authority for the Comptroller 
General to subpena negotiated contract and subcontract records and records of 
other non-Federal persons or organizations to which he has a right of access by 



3018 

law or agreement and (3) provision to permit court review of differences of 
opinion on legal matters between the Comptroller General and the Attorney 
General. Although S. 4432 passed the Senate on October 9. 1970. no action was 
taken on the bill in the House of Representatives and it was reintroduced in the 
92d Congress as S. 1022. In addition, S. 2702 lias been introduced in the 92d 
Congress. This bill would provide for judicial resolution of disputes between the 
Attorney General and the Comptroller General of the United States. While 
these bills for the most part do not bear directly on the problem of access to the 
records of the executive branch, they are examples of efforts being made for 
our office to strengthen its role as agent of the Congress. 

With regard to the denial of information by the executive branch to the Con- 
gress and to the General Accounting Office, it is our view that a measure now 
pending in the Senate Committee on the Judiciary would serve as well as any 
that we can devise to meet the problem. Specifically, S. 1125, 92nd Congress, as 
introduced, would amend title 5 of the United States Code so as to provide that 
no employee of the executive branch summoned or requested to testify or produce 
documents before the Congress or its committees can refuse to do so on the 
grounds that he intends to assert executive privilege and no such employee shall 
assert the privilege unless at the time it is asserted he presents a statement 
signed personally by the President requiring that executive privilege be asserted 
as to the testimony or documents sought. Senator Fulbright, the author of S. 
1125. offered an amendment to his bill which would help avoid the delays that 
our office has encountered in obtaining records from the executive branch. This 
amendment. No. 343, of July 29, 1971, copy enclosed, would impose a sanction 
along the lines of that now providing for a cutoff of foreign assistance funds 
under section 034(c) of the Foreign Assistance Act of 1901, 22 U.S.C. 2394(c). 
Specifically, this amendment would provide that upon a determination by the 
General Accounting Office that any information requested of the executive branch 
by a committee or subcommittee of the Congress or the General Accounting Office 
has not been made available within 00 days after the request has been received 
and if during such period the President has not signed a statement invoking 
executive privilege, no funds made available to the agency involved shall be 
obligated or expended commencing on the 70th day after such request is received 
by such agency unless and until such information has been made available or the 
President, invokes executive privilege with respect to such information. In addi- 
tion to helping alleviate the problems that we have had in delays in obtaining 
information we feel that the Fulbright amendment to S. 1125 would also assist 
the Congress and its committees in its day4by-day operations which require infor- 
mation, independent of the hearing process. 

The matter of refusals by the executive branch to grant the General Account- 
ins - Office access to records and the delays that the executive branch has put this 
< >ffiee to when requesting information has been under serious study for a number 
of years. Insofar as what might be done to alleviate the problem, it is our view 
that amendment No. 343 to S. 1125 would be the most effective means available 
to assist our Office in the delays that it is encountering over access to executive 
department records. 

We have been informally advised that S. 1125 has been amended in subcommit- 
tee to permit executive privilege to be invoked by agency heads as well as the 
President. We are of course opposed to any such amendment and it is our hope 
that either in deliberations of the full committee or in floor debate S. 1125 will be 
revised along the lines of its original language so as to allow executive privilege 
to be invoked only by the President. 
Sincerely yours, 

Elmek B. Staats, 
Comptroller General of the United States. 

Mr. Reid. I would be happy to make both letters available to the 
committee under the only stipulation that counsel determine in con- 
sultation with the GAG whether there is anything in here that might 
have to be handled in executive session, but I think the gist of these 
letters, which were personal to me at my request, deal with some of the 
-instances wherein the GAO has been unable to require or to get access 
to information. 



3019 

I might add, Mr. Chairman, that if my memory is not incorrect, it 
took ns i or 2 years, perhaps longer than that, in the early days of the 
Vietnam war to even get the GAO into Indochina. We went 
through a period of time when neither Defense nor State was felici- 
tous to having any audits being taken out there and the record unfor- 
tunately is pretty plain through the years that GAO has either been 
hampered or denied access and frequently has been unable to dis- 
charge the kind of thoughtful evaluation responsibility that the Con- 
gress needs. 

Mr. Mookhead. In that connection the bill you describe on page 
3 of your testimony speaks of ''Committee of Congress." Does it 
cover or is it intended to cover the, General Accounting Oliice; could it 
be amended to include GAO^ 

Mr. IvKin. I think that may be a good suggestion. The GAO needs a 
similar power of suibpena of some kind, it seems to me, and when it is 
faced either with delay or obfuscation or denial it is relatively 
powerful. 

Mr. Mookhead. I think we in the Congress should do everything we 
can to strengthen our investigating arm. Neither you, nor I, nor any 
Member, nor any committee of the Congress has sufficient personnel to 
oversee all of the activities of the executive branch. We rely greatly 
on the General Accounting Office, which has a very good record of dis- 
cretion, almost too good, in my judgment. They have not always 
insisted sufficiently on their rights as an arm of the Congress. 

A few quick questions. 

You mentioned the expansion of the executive branch. The subcom- 
mittee recently received a study by the Congressional Research Serv- 
ice of the Library of Congress which has some rather startling figures. 
In 1939 there, were six advisers to the President, none listed under 
White House staff or Executive Office staff. By 1954- that had gone up 
to 25 advisers, 266 White House staff, 1,175 Executive Office staff, but 
by 1971 the original 6 advisers had jumped to 45, White House staff to 
600, and the Executive Office stall' to 5.395. This study also shows that 
it is not only the State Department affairs that are being handled in 
the White House, but also affairs of the Department of Commerce in 
which it is stated the important man to see is not the Secretary of 
Commerce but a White House aide, Mr. Peter Flanigan. 

Without objection, I include this Congressional Research Service 
study in the appropriate pail in the record. 

(The document referred to above follows :) 

The Library of Congress Congressional Research Service 

the development op the white house staff 

(Harold C. Relyea, Analyst, American National Government, Government and 
General Research Division Apr. 26, 1972) 

The Constitution of the United States mentions only indirectly that the 
President might make use of subordinate administrative officials in an advisory 
capacity. But the language of article II, section 2, wherein it is stated that 
the President may "require the opinion in writing of the principal officer in 
each of the executive departments, upon any subject relating to the duties nt 
their respective offices," is generally regarded as the authority for the Cabinet. 
Thus it was that for many years the President's chief advisers probably were 
his Cabinet members and only in rare instances did a Chief Executive rely upon 



3020 

other officials. Those individuals attached to the President's Office were secre- 
taries and .lidos who provided clerical assistance to the Chief Executive but no 
advisory support. 

The actual arrangements for an enlarged White House staff can be credited 
to the report of The President's Committee on Administrative Management, 
issued in 1937. This report called for executive assistants to assist the Presi- 
dent "in dealing with managerial agencies and administrative departments of 
the Government." The report went on to say : 

These assistants, probably not exceeding six in number would be in addi- 
tion to his present secretaries, who deal with the public, with the Congress, 
and with the press and the radio. These aides would have no power to make 
decisions or issue instructions in their own right. 

They would not be interposed between the President and the heads of 
his departments. They would not be assistant presidents in any sense. Their 
function would be, when any matter was presented to the President for ac- 
tion affecting any part of the administrative work of the Government, to 
assist him in obtaining quickly and without delay all pertinent information 
possessed by any of the executive departments so as to guide him in making 
his responsible decisions ; and then when decisions have been made, to assist 
him in seeing to it that every administrative department and agency af- 
fected is promptly informed. Their effectiveness in assisting the President 
will, we think, be directly proportional to their ability to discharge their func- 
tions with restraint. They would remain in the background, issue no orders, 
make no decisions, omit no public statements. Men for these positions should 
be carefully chosen by the President from within and without the Govern- 
ment. They should be men in whom the President has personal confidence 
and whose character and attitude is such that they would not attempt to 
exercise power on their own account. They should be possessed of high com- 
petence, great vigor, and a passion for anonymity. They should be installed 
in the White House itself, directly accessible to the President. In the selec- 
tion of these aides the President should be free to call on departments from 
time to time for the assignment of persons who, after a tour of duty as his 
aides, might be restored to their old position. 1 
The idea for and statement on executive assistants was provided by Louis 
Brownlow, chairman of the President's Commission. Commenting on the sug- 
gestion of establishing executive assistants, a later analysis of the reorganization 
report noted : 

These men were to act as anonymous servants exercising no initiative in- 
dependently of the President's wishes. No authority was delegated to them. 
Their function was to extend the President's power to listen wherever use- 
ful information could be gathered and to see whatever needed to be seen to 
provide the information required for decisions. In order to give them the 
utmost responsibility, to presidential will, as well as ultimate flexibility, 
their functions were not to be defined except as the President saw fit to 
define them. As such they would not constitute either an additional institu- 
tion or certainly not an independent one. but rather an extension of the 
Presidency itself. 2 
A reorganization act authorizing administrative assistants for the President 
was passed in early April of 1939. On September 8. 1939, when issuing his "Limited 
National Emergency" Proclamation after the outbreak of war in Europe. Roose- 
velt also quietly released an executive order which called for the reorganization 
of the Executive Office and involved the transfer of the Bureau of the Budget 
from the Treasury Department as well. When the changes were effected, the 
Executive Office staff counted some 800 individuals in 1939. 

Since 1939 the Executive Office of the President has included various emer- 
gency panels, specialized agencies and policy councils. As of this year these units 
include ; the White House Office, created in 1939 ; the Office of Management and 
Budget, transferred (then as the Bureau of the Budget) in 1939 from Treasury; 
the Council of Economic Advisers, established in 1946; the National Security 
Council, initiated in 1947; the National Aeronautics and Space Council, set up 
in 1958; the Office of Emergency Preparedness, established in 1961 ; the Office of 
Science and Technology, initiated in 1962 ; the Office of the Special Representative 
for Trade Negotiations, instituted in 1963 ; the Office of Economic Opportunity, 
legislated in 1964; the Office of Intergovernmental Relations, created in 1969; 



1 The President's Committee on Administrative Management, Report of the Committee 
(Wnshins-ton : U.S. Government Printing Office. 1037). p. 5. 

" Barry Dean Karl, "Executive Reorganization and Reform in the New Deal' (Cam- 
bridge : Harvard University Press, 1963), p. 241. 



3021 

the Domestic Council, created in 1970: the Council on Environmental Quality and 
Office of Environmental Quality, set up in 1970 ; the Office of Telecommunications 
Policy established in 1970 ; the Council on International Economic Policy, created 
last, year; the Office of Consumer Affairs, created last year; and the Special Ac- 
tion Office for Drug Abuse, also a 1971 addition to the Executive Office. 

The number of Presidential advisers and special assistants has, as the follow- 
ing table indicates, exhibited generally steady growth, regardless of national or 
international events, changes of administration, or differing management styles 
of the Chief Executives. While the number of advisers was reduced during the 
Kennedy administration, the size of the White House staff continued to mount. 
As Theodore Sorenson, a Kennedy adviser, has explained : 

Kennedy wanted his staff to be small, in order to keep it more personal than 
institutional. Although in time a number of "special assistants" accumulated 
for special reasons, he kept the number of senior generalists to a minimum. 
Both my office, which dealt mostly with domestic policy, and that of Mc- 
George Bundy, which dealt, exclusively with foreign policy, combined in rela- 
tively small staff the functions of several times as many Eisenhower aides. 
I relied on the excellent staff work of the Bureau of the Budget and Council 
of Economic Advisers. 3 
Thus, while statistics might reflect a reduction in the number of advisers to the 
President, there was, in effect, no reduction in the number of White House aides. 
Similarly, the statistics for the Johnson administration indicate a further reduc- 
tion in the number of Presidential advisers but an increase in Executive Office 
staff asain reflecting no real reduction in the number of White House aides. 

Tlie following table indicates the growth of White House advisers, the White 
House Office, and the Executive Office of the President. The number of advisers 
was computed by examining the individuals and their titles listed in each year 
of the U.S. Government Organization Manual. 







GROWTH OF THE WHITE HOUSE STAFF 












White 


Executive 








White 


Executive 






House 


Office 








House 


Office 


Year 


Advisers 


staff i 


staff 2 




Year 


Advisers 


staff i 


staff 2 


1939 


6 






1956 




35 


374 


1,196 


1940 


6 






1957 




33 


387 


1,218 


1941 

1942 

1943 


8 






1958. 




34 


394 


1,255 


9 






1959, 




37 


405 


2,769 


11 






I960 




37 


446 


2, 887' 


1944 


11 






1961 




24 


411 


2,838 


1945 


12 






1962. 




21 


467 


1,676 


1946 


11 






1963 




23 


388 


1,664 


1947 


11 






1964 




23 


349 


1, 542 


1948 


12 






1965_ 




19 


333 


2,871 


1949 


12 






1966 
1967 
1968 
1959 
1970 
1971 
1972 




20 
20 
21 
39 
51 
45 


295 
272 
273 
328 
331 
600 


4,683 


1950 


13 






4,815 


1951 


12 






5,305 


1952 


13 






4,896 


1953 


22 






4,265 


1954 

1955 


25 
32 


266 
290 


1,175 
1,167 


5,395 











i Totaled from appropriate U.S. Government Organization Manuals. 
2 U.S. Civil Service statistics as of June for each year cited. 



Such advisers might be referred to as counselors, assistants, counsels, or 
consultants. Clerical aides were not included as advisers in the computations 
for the table. Beginning with fiscal year 1971, personnel statistics and cost esti- 
mates for the White House Office were changed to reflect the actual number of 
people employed and moneys spent in that office. Previously the statistics for 
that oflBce had included personnel and related funds which, though credited to 
executive departments, were actually detailed to the White House Office. 

The principal reason for suggesting an increased Presidential staff, and the 
main reason given for the continuous growth of the White House Office, is 
better management of the growing and uncoordinated government. As the report 
of the President's Committee on Administrative Management noted: 

In addition to * :: ' * assistance in his own office the President must be 
given direct control over and be charged with immediate responsibility for 
the great managerial functions of the Government which affect all of the 

3 Theodore C. Sorenson, "Kennedy" (New York : Harper & Row, 1965) , p. 262. 



3022 

administrative departments, as is outlined in the following sections of this 
report. r i hese functions arc personnel management, fiscal and organizational 
management, and planning management. Within these three groups may be 
comprehended all of the essential elements of business management.' _ 
But, as Prof. Richard F. Fenno has noted, managerial authority has been given 
over to the President's advisers because other executive management instruments, 
such as a Cabinet, have proven unsuitable for this function. Fenno comments: 
Whether manifested by a benign lack of interest or by purposeful com- 
petition, departmentalism operates to reduce the potentialities of the 
Cabinet as a coordinating mechanism. Yet in view of the extent, to which 
executive decisionmaking must now be conducted across departmental 
boundaries, it does not seem too much to say that the Chief Executive's 
primary managerial task is precisely this one of coordination. From the 
seminal recommendations of the President's Committee on Administrative 
Management in 1939 to the present day, the President's need for assistance 
in this area has been widely recognized. This, indeed, is the raison 
d'etre for the phenomenal proliferation of those staff organs with inter- 
departmental planning, operating, and advisory functions which now com- 
prise the Executive Office of the President. The expansion of this Office — of, 
for instance, the Budget Bureau, the National Security Council, the Office 
of Defense Mobilization, the Council of Economic Advisers, the White 
House Office — must be considered in part as an inevitable response to the 
new dimensions of governmental activity, but also in part as an adverse 
reflection on the ability of the Cabinet in coping with the difficult problems 
of coordiination involved. 5 
Thus it is the White House Office which has come to better serve the President 
as a coordinator of executive functions. And as managers of the Government as 
well, they have come to play policy roles, refining policy suggestions and. often, 
•even a potential policymaker's access to the Chief Executive. But, as Theodore 
Sorensen has noted, such a role carries with it certain dangers. 

A AVhite House adviser may see a departmental problem in a wider con- 
text than a Secretary, but he also has less contact with actual operations 
and pressures, with Congress and interested groups. If his own staff grows 
too large, his office may become only another department, another level of 
clearances and concurrencies instead of a personal instrument of the Presi- 
dent. If his confidential relationship with the President causes either one to 
be too uncritical of the other's judgment, errors may go uncorrected. If he 
develops * * * a confidence in his own competence which outruns the fact, 
his contribution may be more mischievous than useful. If, on the other 
hand, he defers too readily to the authority of the renowned experts and 
Cabinet powers, then the President is denied the skeptical, critical service 
his staff should be providing. 8 
Indeed, what may be fast becoming a profound problem with the White House 
Office is noted here by Sorensen: that is, the development of the Presidential 
advisory staff, or some arm of the Executive Office, info an entity equal to a 
department. Reflective of this possibility is the growing amount of money spent 
each year by the Executive Office of the President. Indeed, the entire Executive 
Office of the President has greater expenditures than such important bodies as the 
Federal Communications Commission (FCC), the Federal Power Commission 
( FPC ) . or the Federal Trade Commission (FTC). 

[Expenditures in thousands of dollars] 



Fiscal year 


EOP 


FCC 


FPC 


FTC 


1971 

1972 

1973. 


46,961 

56,922 
64, 044 


26,715 
30, 683 
32, 582 


19,493 

22, 164 

23, 054 


22, 405 
24, 957 
26, 936 



As the White House Office and/or the presidential advisers move toward the 
possibility of departmental authority, whether such authority be measured in 
fiscal or political influence terms, the wrath of official department heads can, 
and often is, incurred. As Theodore Sorensen notes: 



1 The President's Committop on Administrative Managempnt, op. pit., p. 6. 

s Richard F. Fenno, Jr., "The President's Cabinet" (New York: Random House, originally 
published 1959), I'll. 141-142. 

6 Theodore C. Sorensen, "Decision-Making in the White House" (New York: Columbia 
University Press, 1963), pp. 71—72. 



3023 

No doubt at times our roles were resented. Secretary Hodges, apparently 
disgruntled by ids inability to see the President more often, arranged to 
have placed on the Cabinet agenda for June 1~>, 1961, an item entitled "A 
candid discussion with the President on relationships with the White House 
staff." Upon discovering this in the meeting, I passed the President a note 
asking ■'Shall I leave V" — but the President ignored both the note and the 
agenda. ; 
Such disputes with the executive "family" can be viewed as merely matters 
of paternal favor. When these encroachments of power become enmeshed in 
executive relationships with other branches of Government, then a constitu- 
tional crisis may be in the offering. 

A short time ago, in testimony before the House Foreign Operations and 
Government Information Subcommittee, former White House Press Secretary 
George Reedy made the following observation on the increasing authority of the 
White House staff and the significance of this develoment both in terms of in- 
formation flow and accountability. 

At one time, the White House staff was a relatively small group of people. 
They consisted of personal advisers to the President, and here you have the 
whole question of executive privilege which has been exercised, in my judg- 
ment, in an extremely legitimate form. I do not think that you should be 
able to pry loose from a President what he does not want to be pried loose. 
But, even if you should be allowed to do it, there is simply no way of 
getting at it. I do not care what law you write, or what you put through 
the Congress, or how many safeguards you set up. there is another branch 
of the Government, and to really try to pry loose from the President his 
thoughts, and his personal advice, I think, would even come close to precip- 
itating a congressional crisis. But, because the authority lies within the 
White House, rather this ability lies within the White House, of exercising 
executive privilege, what has happened with the proliferation of White 
House staff members is that you are to the point where you are gradually 
getting a shift of the operating agencies into the White House itself.* 
What seems to be fast approaching is a government controlled by exclusive 
decisionmakers, untouchable by either the Congress or perhaps even the depart- 
mental bureaucracy. The most notorious of these elite policymakers is Dr. Henry 
Kissinger and his National Security. Council staff which has usurped the field of 
American diplomatic affairs. Not only has Kissinger and his staff undermined 
the State Department in this policy sphere, but Congress cannot compel him or 
any member of the NSC to provide an account of any aspect of their activities. 9 
Senator Fulbright has recently noted that "Mr. Kissinger and his entire staff 
have taken the position of executive privilege." 10 

But the matter is no different when domestic policy is considered. In a speech 
given last May in San Jose, Calif., Sen. Ernest F. Hollings, Democrat of South 
Carolina, remarked : 

It used to be that if I had a problem with food stamps, I went to see the 
Secertary of Agriculture, whose Department had jurisdiction over that pro- 
gram. Not. any more. Now, if I want to learn the policy, I must go to the 
White House and consult John Price. 

If I want the latest on textiles, I won't get it from the Secretary of 

Commerce, who has the authority and responsibility. No, I am forced to 

go to the White House and see Mr. Peter Flanigan. I shouldn't feel too 

badly. Secretary Stans has to do the same thing. u 

Price was a Special Assistant to the President and a staff member of the 

Domestic Council. Flanigan is simply acknowledged as an Assistant to the 

President. 



' Sorenseo, "Kennedy," op. cit., p. 259. 

8 Foreign Operations and Government Information Subcommittee, Committee on Govern- 
ment Operations, House of Representatives. "U.S. Government Information Policies and 
Practices — Administration and Operation of the Freedom of Information Act," 92d Cong., 
taken from hearing transcript for Mar. 6, 1972. 

8 For a view of the National Security Council and its position vis-a-vis the State Depart- 
ment in the Xixon administration see: I. M. Destler. "Can One Man Do?'' Foreign Policy, 
No. 5 (Winter. 1971-72). pp. 28-40: John P. Leacacos, '"Kissinger's Apparat." Foreign 
Policy, No. 5 (Winter 1971-72), pp. 3—27. Dr. Kissinger's views on elite decisionmaking 
ire ;i*cussed in George Sherman, "A Sickness at State," Washington Evening Star (Mar. 7, 
I'M!:, pp. A-l, A-4. 

10 Committee on Foreign Relations, U.S. Senate, "War Powers Legislation." 92d Cong., 
first sess. H971). p. 4.1". 

11 Dom Bonafede. "Ehrlichman acts as policv broker in Nixon's formalized Domestic 
Council,' - National Journal, III (June 12. 1971). p. 1240. 



3024 

Even officials in the executive agencies are becoming distraught over the grow- 
ing authority of the White House staff and the usurpation of line department 
functions. A top Commerce Department bureaucrat recently complained in a 
New York Times interview that "the business community pays no attention to 
this Department ; if you have a policy problem, you go see Peter Flanigan — and he 
is available." 

"Peter Flanigan," the official said with a sigh, "is to the Department of Com- 
merce what Henry Kissinger is to the Department of State." 12 

The problem posed is not merely one of obtaining information from the Execu- 
tive, but more importantly a matter of accountability. And even if the dispute 
were considered at the information level, history records very few denials of 
records to the Congress. Noting that Washington was the first President to, on 
at least one occasion, refuse information to Congress, Telford Taylor writes : 
In the years to come, Jefferson, Monroe, Jackson (thrice), Tyler (twice). 
Polk, Fillmore, Lincoln, Grant, Hayes, Cleveland, Theodore Roosevelt, Cool- 
idge, and Hoover (twice) encountered congressional demands for informa- 
tion which they saw fit to reject. Secure and powerful in his relations with 
Congress during his first two terms, Franklin D. Roosevelt did not confront 
the problem until his third term, during which no less than six such 
requests were refused, and under Truman the issue was drawn to a still 
higher pitch of intensity. Although partisan politics have frequently gen- 
erated these conflicts, it is apparent from the foregoing list that party 
affiliation has never affected the basic position of the Presidents * * * 13 
At present the White House staff is at its largest number with an accompany- 
ing operating budget which equates it with certain of the important independent 
agencies of Government. In brief, the White House staff is claiming an exclu- 
sive prerogative in terms of information, decisionmaking, and policy priorities. 
Such a trend has been evident throughout past administrations and has reached 
a culmination of exclusive authority during the present presidential regime. 

The foregoing paragraphs raise certain points of consideration which are 
essential to any analysis of this subject. The general presentation seeks to portray 
a trend in governmental activity, a trend which has been viewed by various 
authorities both within and outside of the governmental system. No conclusion 
is reached by this analysis except the obvious view that a problem — of both a 
constitutional and operational nature — exists and is rapidly reaching crisis 
proportions. Solutions to this problem are, however, outside the scope of this 
analysis. 

Mr. Reid. Actually, Mr. Chairman, you can almost at this point 
turn it around an ! say are there areas in Washington that the Con- 
gress now has the opportunity to question wherein the decision is made 
in those agencies to any significant degree, because if you take Budget 
and Commerce and Foreign Affairs and Defense and place those al ! 
under the White House wing, what is left for the Congress to deai 
with ? 

Mr. Moorhead. The answer, of course, is very darn little, 

Mr. Wolff. The question of OMB, that is involved, I don't know 
if OMB figures are included anywhere near the figures that you have 
quoted. Are they included in that ? 

Mr. Phillips. Yes. 

Mr. Moorhead. Mr. Reid, you have former associations with the 
newspaper industry. I am going to read you a portion of a paragraph 
of a speech made by Mr. Kevin T. Maroney, the Deputy Assistant At- 
torney of the Internal Security Division of the Department of Justice. 
He says, "I will address myself particularly to two concepts of Gov- 
ernment confidentially, (1) information relating to the national se- 
curity that disclosure of which would be detrii icntal to our national 
defense interests, including the conduct of our foreign affairs, and, (2) 
interdepartmental memoranda containing the candid debate and rec- 



i= New York Timps. Mar. 20. 1 972. 

m Telford Taylor, "Grand Inquest" (New York, Ballantine Books, 1961), p. 119. 



3025 

ommeiidations of Government officials relating to the decisionmaking 
process. 

Then he goes on, "Information embraced within the first of these 
two concepts is protected under the sanction of the criminal law; 
information embraced within the second concept normally is not so 
protected." 

In view of your statement about the attack on the press and the 
media, and based also on your experience in the newspaper field, how 
would you interpret those statements? 

Mr. Reid. Well, I would interpret them almost totally differently 
with an addition as well. First, matters that statement seems to indicate 
are questions of national security or national defense are equally 
matters that concern the Congress under the warmaking powers, and I 
think that there is no sanction whatsoever in the Constitution or in 
judicial precedents that would, in the main, permit the Executive to 
deny Congress information central to Congress' constitutional respon- 
sibilities in this area, and I think there is no question but what the 
record will show that the Congress has been asked to pass resolu- 
tions, be it the Gulf of Tonkin or more recent ones, frequently without 
all of the facts and in more recent cases with virtually none of the 
facts. 

To say that this area is covered by criminal law would say that 
criminal laws supersede the Constitution, which seems to me an absurd- 
ity on the face of it. 

Second, to say that the material that is confidential between the 
staffs is not covered by criminal law might well be accurate but it is 
the kind of information that I think, as distinct from the decision, 
should probably be protected. If the President can't talk privately 
with key members of his staff and be sure that the confidentiality of 
those recommendations or indeed the debate that might have occurred, 
then he is not going to have access to good staff people or good 
information. 

Quite obviously I think the President has the right and the obliga- 
tion to protect that as well as confidential discussions with chiefs of 
state that may be conducted through an ambassador but he has no 
right, in my judgment, to withhold from the Congress fundamental 
benchmark decisions, and Justice Goldberg, I think, listed one of those 
as tilting toward Pakistan and pointed out that was a decision the 
Congress had every right to know about and that that was not a 
question of staff recommendations, it was a policy decision and the 
President did not have the right to withhold that kind of information. 

Mr. Moorhead. Thank you. I will yield to Mr. Gude. Before I do 
that I think some comment has to be made, Mr. Wolff, on page 2 of 
your testimony where you received a letter from the State Depart- 
ment regretting an inaccuracy. That is one of the most diplomatic 
words I have heard when they first say no, there weren't any polls 
and then it comes out yes, there were four polls, that is categorized 
bv Mr. Abshire as "an inaccuracy." 
"Mr. Gude? 

Mr. Gude. Thank you, Mr. Chairman. 

I commend both of my colleagues on their concern over one aspect 
of the erosion of legislative prerogative and power. I think we see a 
correlary of Parkinson's law, to the extent that Congress refuses to 



3026 

assert itself the Executive is just going to move in and engulf the 
whole field. 

I would like to ask one question in regard to your legislation, Mr. 
Reid. Do you feel that you should leave the decision as to the cut- 
oil' of funds to the committee or should you require this to be reported 
to the full House? Would the Senate act in the same manner? 

Mr. Reid. First, I very much appreciate the chance of appearing 
before you and your comments. We have a bill and joint resolution. 
The joint resolution obviously is to facilitate consideration by the 
Congress of this question and 'try to get the Congress to take a stand 
on this in general terms and the thought was this perhaps could be 
the first step and that it would be easier to put this through than the 
actual bill. 

On the bill itself the thought was that a committee would vote in 
the first instance that they would require information, and the second, 
the committee lias to take a second action if the certification does not 
arrive or if it seems inadequate. So my conviction would be that the 
committee itself should be able to take action, but it would be a second 
step after careful review by count as to whether or not the Executive 
had complied with the information and certification. Whether that 
should in turn go before the full House, it would seem to me that 
might be a little cumbersome. I don't think any committee of the 
House would take a second formal action without the most careful 
consideration, and indeed it really should be the committee that is 
concerned because that is the committee that would have all of the facts 
and details before it. We shouldn't have to go before the full House 
or both Houses to require the Executive to provide information that 
is clearly necessary to the functioning of one of our committees. 

Mr. Gude. Thank you. Mr. Chairman. 

Mr. Moorhead. I would like to ask the opinion of both of you gen- 
tlemen as to a suggested proposal for the establishment of a commis- 
sion — w ith the majority of the members appointed by the two Houses 
of Congress — to review matters of classification. 

Let's say that it would provide that all material would become de- 
classified after a certain period of years unless the agency wanting to 
continue classification would appear before the commission and make a 
case why it should be continued. The commission would be made up of 
people knowledgeable in the classification field. The commission would 
also be available to render advisory opinions to either Members of Con- 
gress or to the President. If an individual Member or newspaperman 
came into possession of a document with the label of secret, for exam- 
ple, they could go to the commission for an advisory opinion. The com- 
mission' might conclude that the document isn't properly classified, that 
there is no reason it shouldn't be released. Or. they might conclude that 
it is properly classified: then the Member of Congress or the newspa- 
perman would then be on his own to decide what to do. But I do 
believe that Members of Congress are reluctant to exercise their right 
to declassify, just as Mr. Wolff's testimony showed I was reluctant here 
today under our rules. 

1 )o you think such a commission would help both Congress and the 
newspaperman to reach a rational decision? 

Mr. Red). Mr. Chairman. I think that such a mechanism or commis- 
sion would be highly desirable and I think that there are two points 



3027 

that should bo considered in its formulation. One is the procedural 
question, and here it seems to me the commission or agency perhaps 
made up of Members of Congress and some outsiders would have over- 
sight of the procedures, the classification, how often matters were clas- 
sified, the general criteria, and so forth, and equally they could well 
have a role in determining promptly whether something should be 
made available in a public way or executive session or whatever. 

The more fundamental question, and this is my second point, is how 
to insure that such a mechanism or commission has access in the first 
place '. The trouble is the Congress frequently just doesn't know what is 
going on and if the commission was limited to reviewing procedures or 
documents that the Executive chose to put in front of the commission 
and didn't have the right of spot checking and access to see whether 
there was fundamental withholding of information in certain areas. 
then it would only be able to fulfill about 50 percent of its role, it seems 
to me. 

Mr. Moorhead. Do you have any thoughts, Mr. Wolff ? 

Mr. "Wolff. Yes, I do, Mr. Chairman. I think that, first, I would 
certainly go along with the idea that there is something new that is 
necessary in order to in some way reverse the present situation. I 
understand there are still Civil War documents classified as secret. 
documents. 

The Department of State has told me that the job is of such magni- 
tude they cannot do the job themselves and, therefore, classification 
remains on material because of the fact they aren't, able to get around 
to declassifying it. I would like to see one thing done by this Com- 
mission and that is to limit the number of people who can actually 
put classification upon material, because today there is an indiscrimi- 
nate classification put upon material by people, by the vast number 
of people who are able to classify. 

Secondly, I think that maybe we ought to proceed before the 
classification. Maybe we ought to have this board look into the item 
before it is classified, rather than looking at it with hindsight, because 
in many cases time is of the essence in these things and just as I am 
today bringing before this committee the question of the polls in 
the Vietnam election and the results being classified, it was more 
important for us to have that information prior to the time of the 
election that these polls were going on and that the information ob- 
tained from these polls is after the fact. 

I think that it is important for a commission like this to be set up 
but 1 do believe there should be some sort of screening board that the 
Commission sets up. 

Mr. Iveid. One other point that I would be constrained to mention 
and that is I think there should be a fundamental premise here, and 
that is that classification should be limited only to matters essentially 
of great sensitivity and that this material should be relayed in ways 
and means that facilitate the protection of high confidentiality. Neither 
is the case today. 

As my colleague, Mr. Wolff, pointed out, there are many people 
with the power to classify. Each Ambassador has that power and 
on any given day an Embassy sends x number of telegrams and per- 
haps hundreds of pages of reports. I think much of that doesn't 
need to be classified and, further, if you are going to send a telegram 



3C28 

back to the Department and if it is fairly highly classified, it goes 
through a process not only in decoding, but it goes to a radio room, 
it then goes from there to appropriate desks, it can go upward or 
downward to a hundred different agencies. Well, at each point along 
the road someone has to carry it and initial it, and before very long, 
I have never sought to figure this out, you probably had a thousand 
people look at the telegram, many of which are in the vicinity of the 
Xerox machine, if one is concerned, and I think an Ambassador does 
have a concern at times making sure very highly sensitive material 
does not appear in print the next day, but the system we are following 
almost guarantees that that possibility exists. 

I would not have a whole series of classifications plus another series 
on top of that that triggers access because what you are really talking 
about then are five or 10 different classifications not governed by any 
statute or Executive order. With literally hundreds of thousands of 
people seeing it, it is about as porous as a sponge as far as security is 
concerned, and all it does frequently is impede some people seeing 
it that need to and doesn't serve a security purpose. 

If a few things were really classified highly and through certain 
mechanisms that are possible to retain in that fashion and the bulk of 
this material was not classified, I think both our knowledge and our 
security would be enhanced. 

Mr. Moorhead. I agree, the sheer volume of this classified material 
cheapens it, people no longer have respect for it. If we limited it strict- 
ly, then people would have respect and would not resort to the Xerox 
machine which, as you point out, they can do so readily now. 

Incidentally, you describe the top secret category as defined in the 
Executive order, it covers very serious types of information. We had a 
representative of the Justice Department before this subcommittee last 
week and read to them from a Jack Anderson column that a file on Jane 
Fonda was allegedly marked "top secret" and he wouldn't deny the 
possibility that such a top secret classification could be applied on 
domestic surveillance of an American citizen. 

Mr. Wolff, I think your testimony about the confiscation of your 
tape is an example of the terrible distrust that exists on the part of the 
State Department about Members of Congress. You went through 
every procedure, prenotification, obvious display of the tape recording, 
then to show further good faith and your belief in the interests of na- 
tional security that you would have the tape returned by diplomatic 
pouch, but your total confidence in our State Department is recipro- 
cated by the kind of shabby treatment they gave to you. It certainly 
would make another Member of Congress think twice before he reposed 
that type of confidence in the State Department. 

Mr. Wolff. I think the State Department takes better care of the 
laundry sent through the pouch than they take care of material that 
is necessary to congressional duties. 

Mr. Moorhead. Would you gentlemen be willing to answer some 
questions that the staff who have been working on this matter for a 
long time are willing to pose to you ? 

Mr. Wolff. Yes. 

Mr. Iveid. Yes. 

Mr. Phillips. Thank you, Mr. Chairman. This question of the 
JUSPAO polls raised by Congressman Wolff is just an incredible thing 



3029 

and it is so typical of the frequency with which the State Department 
and other executive agencies deliberately lie to the Congress. 

To reenforce the record on this, on October 8, 1971, Assistant Secre- 
tary Abshire said, "The U.S. Information Agency has informed us 
that JUSPAO has not conducted any polls, surveys, formal or in- 
formal, concerning or involving the Vietnamese election." 

But in July, 1971 — 3 months earlier — this subcommittee had Mr. 
Keinhart from USIA as a witness on the JUSPAO operations. Not 
only did he admit that there were such polls, we discussed them in an 
open hearing, copies of those polls were made available to the sub- 
committee ; they are in our files now ; we have read them ; we discussed 
the fact that at that time, of course, that there were two other serious 
presidential candidates in the Vietnam election, or it appeared there 
would be, Vice President Ky and General Minli. We discussed with 
Mr. Reinhart in a colloquy how available these polls would be to 
President Thieu. 

Mr. Reid, I am sure, remembers, and certainly the chairman, we 
were all there. But 3 months later, they say the polls don't exist after 
it has been discussed in an open hearing. This is utterly ridiculous. 

Mr. Wolff. By the way, this letter was not sent to me, it was sent 
to the chairman of the Foreign Affairs Committee, so it reached even 
higher authority. 

Mr. Phillips. It is incredible. But it is so typical of the things that 
we see here. 

Mr. Reid. Mr. Phillips, I think ridiculous is about the least one can 
say about it. It is either deliberate obfuscation or extraordinary j^oor 
staff work. 

I might just add on the subject, Mr. Chairman, we were talking 
about a little earlier, it is involved in this question as well, is the funda- 
mental definition of security. We seem to design it these days as mean- 
ing we will prevent information reaching the American public and 
the Congress which we are willing to exchange with President Thieu 
or we are willing to tell Hanoi. 

In the case of the Pentagon papers, much of that information was 
known to foreign governments but not to the Congress or the Amer- 
ican people, and I think that this business of equating dissent with 
treason, which creeps into some of these definitions, is also very dan- 
gerous. 

I believe if President Kennedy were alive today, Jack Kennedy, he 
would reaffirm that which I believe he said to the New York Times at 
one point. In retrospect, he would have preferred to have had the Bay 
of Pigs information come out rather than to have made the phone call 
requesting the Times not to publish, the reason being the publication 
in that instance might have prevented the United States from making 
what I believe President Kennedy thought was a serious mistake after 
the event. 

Xo one seems to consider in the executive that there should be a mech- 
anism for circulating dissent, for having some thoughtful dissention 
on matters that could quite clearly trigger nuclear confrontation. They 
consider they are the sole judge of what is patriotism, and there is no 
effort to recognize that our processes should permit the weighing of 
alternatives in a judicious and thoughtful manner before fundamental, 
sometimes very dangerous, decisions are made. The Vietnam war is 

76-253 — T2 — pt. S 7 



3030 

replete with instances of very bad judgment by a number of people 
in the executive, if not by the Congress, which might well have been 
precluded or avoided had there been anything resembling a free flow of 
information and judgment between the Congress and the executive. 
The failure of the executive to understand this has undoubtedly re- 
sulted in thousands of lives being lost that would not have been lost 
had there been anything representing a sharing of information and 
of the decisionmaking between the Congress and the executive, and 
so I hope that somehow we can define security not just as a technical 
question whether the executive wants to classify or not but whether 
the material broadly should be known to prevent wise decisions. 

Mr. Phillips. Also, Mr. Chairman, I think the record should reflect 
that in connection with Mr. Keid's comments about the GAO difficul- 
ties in obtaining access to information, and particularly in Vietnam, 
during the hearing we held last summer, Mr. Stovall of GAO testified 
on the pacification program and the attempts that GAO made to obtain 
figures to show what the real expenditures by AID and the Defense 
Department were in the pacification program. He described the great 
difficulties that GAO had in the field in obtaining such data and also 
the same difficulties in trying to get an explanation of some $1.7 bil- 
lion, I believe, that was unaccounted for in their preliminary study. 
We also noted the great efforts that were made in the Pentagon to 
explain how some of this money was in the pipeline and so on. But 
it does pose a great problem for GAO. This problem is what GAO 
witnesses are going to be testifying about here tomorrow. 

Mr. Eeid. Mr. Phillips, I think your point is extremely well taken. 
I might say there are at least three instances of things that the Ameri- 
can people have never really been apprised of and GAO has really 
never been able to get the facts on. I think at a minimum $2 billion 
of goods, medicines, have gone to the wrong addresses in Vietnam. 
There is no doubt in my mind, second, that there has been and there 
is continuing corruption at the highest levels in the Vietnamese Gov- 
ernment and we have known about it, officials in the U.S. Government 
have known about it, and they have consistently sought to prevent this 
information from being known. 

And, third, in the general area of Vietnamization, pacification. 
Phoenix program, there is no question but that methods have been 
used contrary to the Geneva Convention. Clearly the net of all of this 
was whether we were fingering particular people for assassination, for 
killing, or whether we were doing other things. We were contributing 
to an atmosphere that was almost guaranteed to fail when it was 
pushed a little bit. I think the current ruins of the Vietnamization 
program that we see lying about are testimony to the fact that we 
tended to support an elite corrupt group and did not do things early on 
such as land reform that have been meaningful to the individual or 
the family and it is really a case where the executive has deliberately 
sought to deny the American people the facts in support of the program 
that wasn't working. It is precisely because this is the case that we need 
to change all of this so we do not repeat this kind of mistake. 

Mr. Phillips. Thank you, Mr. Chairman. 

Mr. Moorhead. Mr. Copenhaver. 

Mr. Copenhaver. Mr. Eeid and Mr. Wolff, may I commend you for 
excellent statements and Mr. Keid particularly, I think, you have given 



3031 

one of the best statements that have been given before our subcom- 
mittee on discussion of the whole constitutional aspect. 

I have, if I may, just two comments to make. One is a follow-on to 
your discussion about your statement with regard to the ramifications 
of the executive department's failure to keep Congress or the public 
informed. 

Would you agree that what you are trying to do in your legislation 
is not to undermine executive branch authority but rather to restore 
the public's confidence in the executive branch ? 

Mr. Keid. Precisely ; I think there is fundamental distrust of gov- 
ernment at all levels throughout the United States. It has come be- 
cause government has lied, has obfuscated, and has deceived and also 
because I think the executive has failed to both honor the Constitu- 
tion and to opt for shared decisions that the Constitution requires. 
_ What we are seeking by the legislation is in essence an accommoda- 
tion. We are saying the Congress is entitled under the Constitution 
to information before making a judgment. Hopefully the executive 
would understand that this is being done in a spirit that would repre- 
sent a joint sharing of powers. If, however, the executive increases its 
arrogance in this area and feels that they alone have the right to cer- 
tain information then I think the Congress if it wishes to continue as 
a coordinate branch, if it wishes to have any capacity of check and 
balance, then must show the will and guts to cut off the funds. That 
is the ultimate power. I would hope it won't come to that but I see 
very little evidence that suggests any willingness to share with the 
Congress and, therefore, the Congress can become an appendage of 
the White House, relatively powerless, unless it is willing to stand 
up and cut off funds to insure a right that should be a joint right and 
on which the Constitution is clear. 

Mr. CoPENHAVER. Thank you. 

Mr. Moorhead. Mr. Cornish. 

Mr. Cornish. Thank you, Mr. Chairman. 

Congressman Eeid, I noticed with great interest that you mentioned 
the refusal to this subcommittee of the Cambodian country field sub- 
missions. When President Nixon issued that order on March 15, it 
was in the form of a directive, as you recall, to the Secretary of State 
and to the Director of the U.S. Information Agency. I would like to 
quote the language and to get your comment on it, especially as to its 
blanket effect. The order directed the Secretary of State and the Direc- 
tor of USIA, and I quote : 

Not to make available to the Congress any interim working documents con- 
cerning the foreign assistance program or international information activities 
which would disclose tentative planning data such as is found in the country 
program memoranda and the country field submissions and which are not ap- 
proved positions. 

The fascinating thing about this is that at the moment the chair- 
man received it we had in our possession the fiscal 1973 country field 
submission for Laos, which seems to me much more sensitive than the 
same document for Cambodia. 

The second point is this : on that date, I believe — and perhaps Con- 
gressman Wolff may wish to correct me on this if I am wrong — but 
the administration's foreign aid authorization already had been sent 
up to the Congress and they were indeed asking money for Cambodia, 



3032 

and it. would thus appear from the President's order that you were 
looking at an unapproved position. 

Mr. Wolff. This is correct. I would like to confirm what you ha\^e 
said. We did have before us the submission for assistance to Cambodia 
and Laos at the same time and unfortunately the dates are inconsistent 
with actually the fact. 

Mr. Cornish. Of course my third concern was probably the most 
important of all, and that is President Nixon's directive appears to me 
to be a blanket denial of all such documents from that point on. 

Mr. Keid. Mr. Cornish, I think that your point is very well taken. 
My impression of what happened — and I was involved in some dis- 
cussions on this privately — was that this was an effort not directed 
primarily at the Cambodian report but an effort to establish a new 
precedent, and if that is correct, as I interpret it, this is a vast widen- 
ing of a policy of withholding from the Congress and I think it is 
wrong on its face because it is starting to say that any kind of staff 
material of any kind prior to an agreed position or the facts related 
in some of these studies can be withheld by subordinations, this is no 
longer the doctrine of a few key staffers around the President, this is 
in effect saying anything in a subsidiary wages way down the line 
that may be going into something that may ultimately become a posi- 
tion. None of that can be made available because the field reports are 
not of that degree of confidentiality. I have prepared a fair number 
of them myself. They are the country team assessment as to the level of 
foreign aid program and the kinds of programs that look felicitous 
with some documents as to ~why these reports and these programs are 
effective and should work. 

This is precisely the kind of information the Congress should have 
if it is to make an intelligent assessment either as to economy and 
efficiency in this committee or in the broad policy considerations in the 
Foreign Affairs Committee and I think this is just a further tighten- 
ing and, in my judgment, in this area quite wrong. 

I might say that I have had my opportunities in the executive to be 
aware of matters that I think are highly classified ; in one case a matter 
I think known to five people in the government, and to other matters 
that are far less so. These kinds of reports are almost technical in 
nature; they are the fundamental grist that is essential for any basic 
policy judgment by the Congress of any AID judgment and to start 
classifying and withholding this is totally ridiculous and unwar- 
ranted. I think it could set a very bad precedent. 

Mr. Wolff. Our adversaries seem to have the information before 
the Congress has. 

Mr. Cornish. I might say there apparently is some misunderstand- 
ing on the part of the executive branch that the Congress doesn't know 
what these documents are. Of course we realize that in a sense they 
are planning documents but at the same time they contain a tre- 
mendous amount of factual information and detailed justification for 
the programs existing as well as those projected and they describe the 
real political and economic situation in a country — what the goals 
and objectives of the U.S. assistance program are and their rationale — 
and they discuss the specific issues of major significance. 

Mr. Wolff. It is actually the raw data, too, upon which we can base 
opinion rather than have that interpreted for us by someone else and 
I think this is the important element involved here. 



3033 

Mr. Cornish. Thank you, sir, and the comment or suggestion we got 
from the Department of State was that, "Well, gentlemen, we can't 
make available to you this basic document but what we will do is sit 
you down and tell you about it." That is all very well and good and I 
am sure that someone could come over and try to give you an accurate 
picture of what is actually the information in the document, but it is 
just possible that they might leave out some little tidbit of information 
which we are really interested in. 

Mr. Wolff. Either they figure Congress is unable to read or that we 
read too well. 

Mr. Reid. I might add, Mr. Cornish, that Anthony Eden, now Lord 
Avon, both when he was Foreign Secretary and Prime Minister, also 
insisted on reading the cables, telegrams, raw cables, and telegrams 
from the field ; he did not want to take home with him in his dispatch 
box at night compilations that had been put together in the Foreign 
Office, and I would submit this is pretty good advice for Congress as 
well. 

Mr. Wolff. I might respectfully suggest that either some members 
of your subcommittee or perhaps committee staff appear before the 
Foreign Affairs Committee and feed us some of the information we 
have heard about here today that would help us in making our decisions 
because it is quite obvious that we are not getting all of the information 
we need to adequately perform our f miction. 

Mr. Moorhead. We are pleased to have two such distinguished mem- 
bers of that committee before us and we certainly want to cooperate 
as much as possible with the Foreign Affairs Committee. I think we 
have had a good working relationship with the chairman of that com- 
mittee, but any way we can improve our relationship we are open to 
suggestion. 

Well, thank you, gentlemen, very much for two very thought-pro- 
voking statements. Your experience in both the foreign affairs field 
and in the difficulty of getting information and the resulting loss of 
power to Congress from the lack of this information has been very 
important to this subcommittee and we appreciate it very much. 

We will now insert in the record the letter the subcommittee sent to 
all Members of the House and the Senate. 

We will also insert in the record a statement of our colleague, James 
R. Mann, from South Carolina, citing a situation where the American 
Revolution Bicentennial Commission refused to give financial infor- 
mation to a duly constituted subcommittee of Congress. Also inserted 
are statements bv Representative Abner Mikva and Senator Vance 
Hartke. 

(The statements referred to above follow :) 

House of Representatives, 
Foreign Operations and Government Information Subcommittee 

of the Committee on Government Operations, 

Washington, B.C., March 27, 1972. 
Dear Colleague : As you may have noted, the House Foreign Operations and 
Covernment Information Subcommittee is currently holding hearings on the 
administration and efficiency of the Freedom of Information Act (5 U.S.C. 552), 
which became effective on July 1, 1967. 

As part of these oversight hearings, we have planned several days of testimony, 
beginning on Monday, May 15, on the problems of Congress in obtaining informa- 
tion from executive agencies. 



3034 

The subcommittee is particularly interested in knowing of specific case his- 
tories of denials of information to Congress by the Executive. If you have been 
Involved in such a case, we would greatly appreciate receiving from you a written 
statement for the hearing record setting forth the details. Such cases would add 
immensely to the documentation of the extent of Executive withholding practices 
and would be of important value to the Subcommittee in its hearings. 

We will look forward to hearing from you at an early date. If you or your 
staff have any questions in this connection, please call the subcommittee staff 
director, William G. Phillips (5-3741). 

With best regards, 

Sincerely, ^ T 

William S. Moorhead, 

CJiairman. 

Prepared Statement of Hon. James R. Mann, a Representative in Congress 
From the State of South Carolina 

Mr. Chairman, I welcome the opportunity to advise the committee of an 
instance which, in my judgment, constitutes an improper withholding of infor- 
mation to the Congress by the Executive. I would not have considered this 
specific instance worthy of mention had it not involved that vaunted power of 
the legislative branch, the "power of the purse". As we have seen the power 
of the Congress slowly erode, through both our own neglect and usurpation by 
the Executive, I, for one, have become particularly sensitive in the area of fiscal 
responsibility. . . 

On November 10, 1971, Subcommittee No. 2 of the Committee on the Judiciary 
was considering H.R. 7374, a bill to amend the joint resolution establishing the 
American Revolution Bicentennial Commission, as amended. The bill sought 
to make miscellaneous amendments with reference to the American Revolution 
Bicentennial Commission legislation, but the most important of its provisions 
was an authorization for the appropriation of $4.3 million for fiscal year 1972. 
Among the witnesses testifying at a hearing before the subcommittee on the 
above date was Mr. Hugh A. Hall, Deputy Executive Director, American Revolu- 
tion Bicentennial Commission. I quote here from pages 26 and 27 of the hearing 
transcript. The questioning is by Representative George E. Danielson of Cali- 
fornia, a member of the subcommittee. 

Mr. Waldie. Half of them were reconstituted out? 
Mr. Skora. Some resignations on an individual basis, yes. 

Mr. Waldie. Would that happen again, for example, if there is a change in the 
administration next national election? 
Mr. Hall. Hopefully not. 

Mr. Waldie. I mean, will they traditionally all resign? 
Mr. Hall. Hopefully not. 
Mr. Waldie. Do the staff people resign, too? 
Mr. Hall. No, sir. 

Mr. Waldie. Of course, you only had two members of the staff. 
Mr. Skora. It was just the public members through the chairman submitting 
an en bloc resignation to the new President-elect, whomever he might be. 
Mr. Waldie. I think that was an unfortunate precedent. 
Mr. Donohue. Mr. Flowers? 
Mr. Flowers. Thank you, Mr. Chairman. 
It is designed to go through 1983 ; is that correct? 
Mr. Skora. That is what the legislation provides. 

Mr. Hall. Could I state, though, what the Commission has decided and has 
been incorporated in the report of the Commission ; 210 or 211 million people are 
not going to accept a bicentennial that runs that long. So we have recommended 
through a resolution that the focal year for the bicentennial be 1976, the focal 
day. of course, will be July 4 ; that most of the activities will take place in the 
tail end of 1975 and 1976 and that a substantial portion of the staff will go out 
of business in the spring of 1977. And that the historical events related to the 
Revolution go through 1983— and there are even challenges that it should go 
through 1987— and would be left to the local interest and regional interest groups 
to stage their own individual activities around those moments in history. We 
have been complimented on the realism that the bicentennial must be concen- 
trated in a year's activities basically. 

Mr. Flowers. I would agree with that thought. 



3035 

I have no further questions. 

Mr. Donohue. Mr. Danielson? 

Mr. Danielson. I have two questions. Down there in section 3, section 7(a) 
of the law, authorizing appropriations of such sums as may be necessary. 
Now, we have made reference to the $4.3 million or maybe $4.5 million for 
grants to the various States. Aside from that feature, it costs something to 
rim this Commission. What is your budget authorization? What is your budget 
request for authorization in this year? 

Mr. Hall. Fiscal year 1972, it is $4.3 ; $1.9 is for staff and expenses to carry 
on the everyday business of the Commission. 

Mr. Danielson. And the other $2.4 is to pass out to these various States and 
so on? 

Mr. Hall. Grants to the States. 

Mr. Danielson. In other words, $1.9 is what you are talking about for running 
your Commission? 

Mr. Hall. Yes, sir. 

Mr. Smith. Does that include the area offices that are authorized too? 

Mr. Hall. It does, sir. 

Mr. Danielson. What are your projections— forgetting the grants to the 
different States now — what are your projections as to how that $1.9 is going 
to grow between now and 1976? I am sure you have worked out some pro 
forma projections. 

Mr. Hall. There is a procedure in which a Commission such as ours submits 
our plans to the Office of Management and Budget. The Office of Management 
and Budget reviews in detail our proposals. We are putting together today, and 
have put together, a program for fiscal year 1973. We are preparing to put 
together a total program that will include 1973 through 1976 and come before 
Congress requesting a single package authority rather than coming up each 
year. But that has not been approved by the Office of Management and Budget, 
so we can't discuss those details on figures and projections until they have been 
completely reviewed by them, and the other governmental agencies will have 
an opportunity to review it. 

Mr. Danielson. I can envision if this bill comes up on the floor and some 
people with extremely fine vision read that language down there, they might 
say, "What are the projections for 1972, 1973, 1974, 1975, and 1976?" And it would 
have kind of a hollow effect if one said, "We asked the Commission but they 
declined to provide the information." That would go over like a lead balloon, 
in my opinion. 

Mr. Hall. This authority is only for fiscal year 1972. 

Mr. Danielson. But most of the Members of the Congress look further ahead 
than fiscal year 1972. 

Mr. Hall. Correct, sir. 

Mr. Danielson. I will answer the question that they have declined to furnish 
the information, if that is what you request. That is your choice. 

Mr. Hall. I don't think we have our 5-year package well enough prepared. 

Mr. Danielson. I can answer it that way then, that it is not prepared and 
they don't know where they are going. 

Mr. Skoba. It would ultimately depend on Congress with the authorization 
and appropriations. 

Mr. Danielson. This is the contingency with which I am asking the question. 
It: depends on Congress, therefore Congress must have some knowledge. 

Very well, I have an answer. 

Mr. Hall. We are in a process of preparing a total package. 

Mr. Danielson. At the present time, you do not know and decline to furnish 
the information that you are not sure of. 

Going on to the exposition, do you plan to conduct and promote an exposition? 

Mr. Hall. The commission in its report to the President invited Philadelphia 
to stage an international exposition, a noncommercial, historical and cultural, 
special type of exposition to be a part of the bicentennial in 1976. We did that 
because Boston, Philadelphia, Washington, D.C., and, shortly thereafter, Miami, 
on their own initiative, proposed to stage an international exposition in 1976 
as their city's participation in the bicentennial. 

Frankly, some of those cities were underway with these plans prior to this 
Commission's existence. And I think Congress foresaw that these kinds of activi- 
ties were going to start to pop up all over the country and that is why the 
Commission was created. 



3036 

Let us now consider the meaning of the refusal of Mr. Hall to advise the 
Congress, acting through Subcommittee No. 2 of the Committee on the Judiciary, 
of the projected cost of a program that he, on behalf of the executive, was asking 
Congress to fund. It is clear from Mr. Hall's testimony that he was already in 
possession of projected cost figures for fiscal year 1973. Although there may be 
some question about it, I also think that it is reasonably inferable that he 
also had some idea as to the total cost of the program but refused to give it to 
us because "that has not been approved by the Office of Management and Budget, 
so we can't discuss those details on figures and projections until they have been 
completely reviewed by them, * * *". So, we see that Congress was being called 
upon to buy a pig in a poke, and the reason given was that "there is a procedure 
in which a commission such as ours submits our plans for the Office of Manage- 
ment and Budget." Here we see a typical example of the power that we have 
permitted to be assumed by that "invisible government", concerning which 
there is much public confusion about whose tool it is, which confusion often 
affords the President sanctuary while the blame falls upon the Congress. I refer 
to that super executive "enforcer", the Office of Management and Budget. 

Mr. Chairman, I will not belabor the point. As I indicated earlier in my state- 
ment, I lament any effort to further debilitate the capacity of the Congress to 
fulfill its primary function, the appropriation of funds. I would hope that the 
Congress, rather than the Office of Management and Budget, would be the guard- 
ian of the public purse. I reject the idea that an agency or commission of govern- 
ment cannot disclose to the Congress the total or potential cost of a program 
when it is before the Congress seeking authorization and appropriation. I reject 
a policy that closes the mouths of those at the operating level, because the Office 
of Management and Budget has not, in effect, told them what the President plans 
to tell us about the fiscal needs of the agency or commission. 

I believe in planning, and I commend the executives of the American Revolu- 
tion Bicentennial Commission for making plans. However, it is nothing but 
doubletalk for them to allege that planning procedures in this case prevent them 
from giving the Congress an estimate of the total cost of the program. As indi- 
cated earlier in my statement. I assert that they do have an estimated total cost 
of the program, and refused to give it to the subcommittee. If they do not have 
such an estimate, then it is indicative of an even greater danger to our system 
of government, when the executive can request, and Congress grant, as it 
already has in this case, a large amount of money, for a program of unknown 
dimensions. I am a great supporter of the bicentennial program, but I am an 
even greater supporter of fiscal responsibility. The interplay between the exec- 
utive and the Congress will not result in fiscal responsibility if we permit the 
executive to assert the fiscal guidance that it has in this case, leading a "blind" 
Congress into providing funds without revealing information known to it. 

The Office of Management and Budget may serve a worthwhile executive pur- 
pose with reference to the management of appropriated funds and the prepara- 
tion of budget requests, but it should not be permitted to "manage" the Congress 
by procedures which prevent a full disclosure by executive agencies of any and 
all fiscal matters in response to congressional inquiry. 



Congress of the United States, 

House of Representatives, 
Washington, D.G., April 5, 1912. 

Hon. William S. Moorhead, 

Chairman, Subcommittee on Foreign Operations and Government Information, 

Washington, D.G. 
(Attention : William Phillips) . 

Dear Mr. Chairman : In response to your recent letter, I would like to de- 
scribe two occasions on which I have been denied access to information specifi- 
cally requested from departments of the executive branch. 

In December 1971, I wrote to Jerris Leonard, administrator of the Law En- 
forcement Assistance Administration, and requested a copy of a report prepared 
by LEAA in May 1971 dealing with the privacy and security of computerized 
criminal justice information systems. 

I had been told that this report would cast some light on the change in em- 
phasis on privacy considerations which had accompanied the transfer of control 
over the development of project SEARCH from the States to the FBI. At the 
time, I was drafting legislation dealing with this subject, and felt that the 
LEAA report's recommendations might be useful. 



3037 

On February 11, 1972, I received a reply from Mr. Leonard denying my request 
for the report. 

The second incident involved a report which I was told had been submitted by 
the Environmental Protection Agency to the Office of Management and Budget, 
outlining an accelerated cleanup program to abate pollution in the Great Lakes 
and requesting inclusion in the budget of funds to carry out this program. 

On February 2, 1972, I wrote to William Ruckelshaus and asked that a copy 
of the report be sent to me. My office subsequently received a telephone call from 
an employee of the EPA advising that the report would not be made available. 

The report was eventually obtained privately, and was discussed in the Con- 
gressional Record. The information it contained has been useful in connection 
with the consideration of H.R. 11896, the Federal Water Pollution Control Act 
amendments, and will be even more useful when we consider the EPA appro- 
priations bill for fiscal year 1973. 

Copies of the correspondence referred to above are enclosed. I hope this in- 
formation will be useful to your subcommittee. 
Sincerely, 

Abner J. Mikva, 
U.S. Congressman from the State of Illinois. 



December 22, 1971. 
Mr. Jerris Leonard, 

Law Enforcement Assistance Administration, 
Washington, D.C. 

Dear Mr. Leonard : It came to my attention recently that LEAA prepared a 
report in May 1971 dealing with security and privacy considerations in com- 
puterized criminal justice information systems. 

This is a subject of great concern and interest to me. As a member of the 
Judiciary Committee I expect to be dealing with legislation on this subject in 
the near future, and would appreciate your supplying me with a copy of the report 
mentioned above. 

Thank you for your cooperation. 
Sincerely, 

Abneb J. Mikva, 
U.S. Congressman. 

U.S. Department of Justice, 
Law Enforcement Assistance Administration, 

Washington, D.C, February 11, 1912. 
Hon. Abner J. Mikva, 
House of Representatives, 
Washington, D.C. 

Dear Congressman Mikva : This is in response to your recent letter regarding 
data gathered by the Law Enforcement Assistance Administration dealing with 
security and privacy considerations in computerized criminal justice information 
systems. 

Although the report you requested was not submitted to the Congress, I am 
enclosing some material about LEAA funding of criminal justice information 
systems which should assist you in your study of this important subject. 
If I can provide additional information, please let me know. 
Sincerely, 

Jerris Leonard, 

Administrator. 



February 2, 1972. 
Mr. William Ruckelshaus, 
Director. Environmental Protection Agency, 
Washington, D.C. 20460 

Dear Mr. Ruckelshaus : I understand your Department has done a study of 
the antipollution effort in the Great Lakes, entitled "Accelerated Great Lakes 
Program — Summary of Proposals." Would you please send a copy of that report 
to me. 

Thank you. 
Sincerely, 

Abner J. Mikva. 
U.S. Congressman. 



3038 

U.S. Senate, 
Committee on Finance, 
Washington, D.C, April 5, 1972: 
Congressman William S. Mooehead, 

Chairman, Foreign Operations and Government Information Subcommittee of 
the Committee on Government Operations, House of Representatives, Wash- 
ington, D.C. 

Deae Mb. Chairman : Your recent letter stated that your subcommittee is con- 
ducting hearings on the administration and efficiency of the Freedom of Informa- 
tion Act (5 U.S.C. 552). Aside from the general reluctance of the executive branch 
to release information there is one instance in which my office has been personally 
involved which certainly leads me to question the success of the FOIA in raising 
the shroud of secrecy within which the executive branch carries out so much of 
its activity. 

On July 30, 1971, I wrote to the Executive Director of the Federal Trade Com- 
mission, Mr. Basil J. Mezines. I requested a Federal Trade Commission report 
on the administration of the motion picture consent decrees by the Department 
of Justice. On August 19, 1971, Mr. Mezines advised me that the "Commission 
has felt it advisable * * * to defer to the judgment of the Attorney General as 
to whether or not any such report should be released". 

On September 15, 1971, I requested Attorney General Mitchell to release a 
copy of the report to me. On October 5, 1971, Assistant Attorney General Mc- 
Laren advised me that it was not possible to make this report available to me. 
Mr. McLaren stated that information in the report was secured pursuant to 
provisions contained in the judgments which enjoin divulgence of the informa- 
tion "by any representative of the Department of Justice to any person other 
than a duly authorized representative of the Department of Justice, except in 
the course of legal proceedings to which the United States is a party, or as other- 
wise required by law". 

Presently I am in the process of making specific application for the release of 
this information under the Freedom of Information Act. I have enclosed copies 
of the relevant correspondence concerning this matter. If you desire further in- 
formation, please contact either Howard Marlowe or Greg Williams at 54S14. 
Sincerely, 

Vance Habtke, 

U.S. Senator. 

Enclosures. 

July 30, 1971. 
Mr. Basil J. Mezines, 

Executive Director, Federal Trade Commission, Pennsylvania Avenue at Sixth 
Street, Washington, D.C. 
Dear Mr. Mezines : It has come to my attention that there is a Federal Trade 
Commission report on the administration of the motion picture consent decrees 
by the Department of Justice. 

I would very much appreciate having a copy of this report at your earliest 
convenience. Thank you for your consideration. 
Sincerely, 

Vance Hartke, 

U.S. Senator. 



Federal Trade Commission, 
Washington, D.C, August 19, 1971. 

Re U.S. v. Paramount Pictures, Inc., et al., file No. 55-034. 

Hon. Vance Hartke, 

U.S. Senate, 

Washington, D.C. 

Dear Senator Hartke : This is in further reference to your letter of July 30, 
1971, requesting a copy of the FTC report on the administration of motion picture 
decrees by the Department of Justice. I acknowledged your letter on August 10, 
1971, and advised that you would hear from me in the near future. 

The Commission completed an investigation as to the manner and form of 
compliance with the judgments and decrees in the matter of United States v. 
Paramount Pictures, Inc., ct al. (U.S.D.C. Southern District New York, Equity 
No. 87273). 



3039 

Following completion of an extensive investigation, the Commission on Feb- 
ruary 25, 1965, forwarded its report to the Attorney General containing its con- 
clusions and recommendations with respect to the extent of compliance with the 
above judgments and decrees. 

The investigation was conducted at the request of the Attorney General pur- 
suant to the provisions of section 6(c) of the Federal Trade Commission. 

The Commission has felt it advisable with respect to previous requests involv- 
ing access to the above-referenced report and others which were prepared by 
the Commission pursuant to the provisions of section 6(c) of the Commission 
Act to refer to the judgment of the Attorney General as to whether or not any 
such report should be released. In this connection I feel it advisable to invite 
your attention to the provisions of paragraph VIII 111b of the Court's decree 
which provides : 

Information obtained pursuant to the provisions of this section shall not 
be divulged by any representative of the Department of Justice to any per- 
son other than a duly authorized representative of the Department of Justice 
except in the course of legal proceedings to which the United States is a 
party or is otherwise required by law. 
I believe it advisable therefore to suggest that you direct your request for 
release of a copy of the Commission's report to the Attorney General. I regret 
that I cannot be of more positive assistance with respect to your request in 
this matter. 
With kindest personal regards, 
Sincerely, 

Basil J. Mezines, 
Executive Director* 



Septembeb 15, 1971. 
Hon. John N. Mitchell, 
Attorney General of the United States, 
Department of Justice, 
Washington, D.C. 

Deab General Mitchell : It has come to my attention that there is a Federal 
Trade Commission report on the administration of the motion picture consent 
decrees by the Department of Justice, United States v. Paramount Pictures, Jna, 
et al. 

I contacted Director Mezines to obtain a copy of the report and was informed 
that I should direct that request to you. I would appreciate having a copy of this 
report at your earliest convenience. Thank you for your consideration. 
Sincerely, 

Vance Habtke, 

U.S. Senator. 



Octobeb 5, 1971. 
Hon. Vance Habtke, 
U.S. Senate, 
Washington, D.C. 

Dear Senator Habtke: The Attorney General has asked me to reply to your 
letter of September 15, 1971, concerning the Federal Trade Commission's com- 
pliance investigation report relating to the judgments entered in the case en- 
titled United States v. Paramount Pictures, Inc., et al. The report was transmitted 
to this Department in March of 1965. 

The compliance investigation to which the report pertains was made by the 
Commission at the request of the Department of Justice. Information was secured 
pursuant to provisions contained in the judgments which enjoined divulgence of 
the information "by any representative of the Department of Justice to any 
person other than a duly authorized representative of the Department of Justice, 
except in the course of legal proceedings to which the United States is a party, or 
as otherwise required by law." We are, therefore, proscribed by the judgments 
from making the report available to anyone other than appropriate representa- 
tives of the Department, except in the course of legal proceedings in which the 
United States is involved as a party. 

We appreciate your interest and regret that it is not possible to make this 
report available to you. 
Sincerely yours, 

Richard W. McLaben, 
Assistant Attorney General, Antitrust Division. 



3040 



&?& 



U. S. DcPARTJAoNY uf Jlii'.iCir. 

WASHINGTON, D. C. 20530 

REQUEST FOR ACCESS TO OFFICIAL RECORD. 
UNDER 5 U.S.C. 552(a) and 23 CFR PART 16 



See instructions for payr 


ent and delivery of this form at bottom of page 




.SAME OF REQUESTER 


ADDRESS (street, city, stole ond rip code) 
I 'J;iJ.U^C*. Cj'^lLv'-^ OC::'iauO 




DATE 


5u£uS z,'.Z Cid Gsnl-ta C/iTico Jiuildiir;^ 




00 YOU Y;!SH TO RECEIVE COPIES? 0YES QnO 
IF YES, SO INDICATE (no more thon 10 copies oi any 
document Willie JuroTshcd). 


[NUMBER OF COPIES 1 OFFICE AMD CiTY WHERE RECORD 
REQUESTED IS LOCATED (if known) Aatinl ai : S tal\ 





DESCRIPTION OF RECORD REGUESTED (Include cny Information which moy be helpiol in locating record) 






.'lion reporc rolatiaa 






IN PENDING* ! 
LITIGATION i 



: FEDERAL 
i STATE 



LITIGATION: DO ES THIS REQUEST RELAT E TO A MATTER IN PENDING OR PROS PECTIVE LITIGATION? CjYES rTjNO 
flU-tN IF [COliRT (check one)) DISTRICT 



NAME OF CASE 



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THIS REQUEST IS: 



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A MINIMUM FEE OF S3. 00 MUST ACCOMPANY THIS REQUEST. 
OTHER CHARGES ARE AS FOLLOWS, (do not writ, in thi« bo«) 



FOR SECOND AND EACH ADDITIONAL ONE QUARTER 
HOUR SPENT IN SEARCHING FOR OR IDENTIFYING 
REQUESTED RECORD J 1.00 

FOR EACH ONE QUARTER HOUR SPENT IN MONITORING 
REQUESTER'S EXAMINATION OF MATERIAL $1.00 



! : REFERRED 



COPIES OF DOCUMENTS: 

S0< FIRST PAGE/25* EACH ADDITIONAL PAGE 

FOR CERTIFICATION OF TRUE COPY t 1.00 EACH 

FOR ATTESTATION UNDER THE SEAL OF 
THE DEPARTMENT $ 3.00 EACH 

GSA CHARGE 

TOTAL CHARGE 



payment under this section shall be made in cash, or by United States money order, or 

by check payable to the Treasurer of the United States, postage stamps will not be accepted. 

This form may be delivered to any of the offices listed in 28 C. F. R. 16.2 or mailed to: 
Office of the Deputy Attorney General, Department of Justice, Washington, D. C. 20530 

Mr. Moorhead. When the subcommittee adjourns today it will ad- 
journ to meet tomorrow at 10 o'clock in this room when we will hear 
from Mr. Robert F. Keller, Deputy Comptroller General of the Gen- 
eral Accounting Office, and our colleague, the distinguished Congress- 
woman from Hawaii, Patsy T. Mink. 

The subcommittee is now adjourned. 

(Whereupon, at 11 :55 a.m., the hearing was adjourned, to reconvene 
at 10 a.m., Tuesday, May 16, 1972.) 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



TUESDAY, MAY 16, 1972 

House or Representatives, 

Foreign Operations and 
Government Information Subcommittee 
of the Committee on Government Operation^ 

Washington, D.C. 

The subcommittee met, pursuant to recess, at 10:10 a.m., in room 
2154, Rayburn House Office Building, Hon. William S. Moorhead 
(chairman of the subcommittee) presiding. 

Present: Representatives William S. Moorhead, John X. Erlen- 
born, and Frank Horton. 

Staff members present : William G. Phillips, staff director; Norman 
G. Cornish, deputy staff director ; and T. H. Saunders, minority pro- 
fessional staff, Committee on Government Operations. 

Mr. Moorhead. The Subcommittee on Foreign Operations and Gov- 
ernment Information will please come to order. 

Today, we commence the second day of our hearings into the prob- 
lems of Congress in obtaining information from the executive branch, 
as part of our overall hearings on the operations of the Freedom of 
Information Act. 

All of us — as Members of Congress and as members of committees 
and subcommittees of the House — have had personal experiences of 
requesting information from some executive agency and being told 
that it was unavailable, or nonexistent, or would take mairy man-years 
to compile, or dozens of other stalling, nonresponsive excuses. 

But few of us have had the types of frustrating experiences that are 
the everyday routine with the General Accounting Office — an arm of 
Congress charged with heavy responsibilities in ferreting out the waste, 
inefficiency, and nonauthorized use of Government funds by executive 
agencies. 

The GAO is in the frontline trenches in the fight against Govern- 
ment secrecy and has been for many years — from administration to 
administration, regardless of political coloration. It is obvious to 
all that, if the GAO is denied access to the information it needs to 
evaluate programs created by Congress or to conduct the in-depth type 
of audit necessary to assure that taxpayers' funds are being properly 
expended, then it simply cannot do the job it has been set up to do. 

(3041) 



3042 

"We will hear, firsthand, of some of the recent case histories in which 
GAO has experienced the general tightening-up of the access to vital 
information from the executive branch under the Nixon administra- 
tion. This subcommittee and many others in both the House and 
Senate can also testify to this fact. 

We will also hear from a distinguished colleague who has fought 
the battle to obtain information under the Freedom of Information 
Act as a private citizen after it was denied to her and other Mem- 
bers of Congress by the executive branch as a constitutional right. 

We are pleased to have as our first witness the able Deputy Comp- 
troller General of the United States, an old friend of mine. We warmly 
welcome Mr. Robert Keller. Then at 11 :30 we will hear from our col- 
league, the gentlewoman from Hawaii, Congresswoman Patsy T. Mink. 

Will you come forward, please, Mr. Keller? 

Mr. Keller, it is the custom of this subcommittee as an investigating 
subcommittee to administer the oath to the witnesses, which we will 
do when we have a proper quorum present. I just warn you and your 
colleagues ahead of time and if you would introduce your colleagues 
then you may proceed as you see fit. 

STATEMENT OF ROBERT F. KELLER, DEPUTY COMPTROLLER GEN- 
ERAL OF THE UNITED STATES; ACCOMPANIED BY OYE V. STO- 
VALL, DIRECTOR, INTERNATIONAL DIVISION; JAMES A. DUFF, 
ASSOCIATE DIRECTOR, INTERNATIONAL DIVISION; AND JAMES 
E. MASTERSON, SENIOR ATTORNEY, OFFICE OF THE GENERAL 
COUNSEL 

Mr. Keller. Thank you, Mr. Chairman. On my right is Mr. Oye 
Stovall, who is Director of our International Division, and on my 
left is Mr. James Duff, who is an Associate Director of our Interna- 
tional Division. Both of these gentlemen have appeared before this 
subcommittee before and I am sure you are familiar with their work. 

First, let me say, Mr. Chairman, we are glad to be here, and we 
appreciate the subcommittee's interest in the work of the General 
Accounting Office, in particular our problems concerning access to 
documents of the executive departments and agencies. 

One of the most important duties of GAO is to make independent 
reviews of agency operations and programs and to report to the Con- 
gress on the manner in which Federal departments and agencies carry 
out their responsibilities. The Congress, in establishing GAO, recog- 
nized that the Office would need to have complete access to the records 
of the Federal agencies and provided that basic authority in section 313 
of the Budget and Accounting Act, 1921 (31 U.S.C. 53, 54,) as follows : 

All departments and establishments shall furnish to the Comptroller General 
such information regarding the powers, duties, activities, organization, financial 
transactions, and methods of business of their respective offices as he may from 
time to time require of them ; and the Comptroller General, or any of his as- 
sistants or employees, when duly authorized by him, shall, for the purpose of 
securing such information, have access to and the right to examine any books, 
documents, papers, or records of any such department or establishment. 

If I may at this point, I would like to offer for the record a summary 
of the pertinent statutes which governs the responsibilities of the Gen- 



3043 

eral Accounting Office in the areas where it is required to carry out in- 
vestigations and audits. 

Mr. Moorhead. We would welcome that and without objection it will 
be made a part of the record. 

(The material follows :) 

Budget and Accounting Act, 1921 Public Law 13, 67th Congress 

investigations and reports by comptroller general 

Sec. 312. (a) The Comptroller General shall investigate, at the seat of Gov- 
ernment or elsewhere, all matters relating to the receipt, disbursement, and appli- 
cation of public funds, and shall make to the President when requested by him, 
and to Congress at the beginning of each regular session, a report in writing of 
the work of the General Accounting Office, containing recommendations concern- 
ing the legislation he may deem necessary to facilitate the prompt and accurate 
rendition and settlement of accounts and concerning such other matters relating 
to the receipt, disbursement, and application of public funds as he may think ad- 
visable. In such regular report, or in special reports at any time when Congress 
is in session, he shall make recommendations looking to greater economy or ef- 
ficiency in public expenditures. 

(b) He shall make such investigations and reports as shall be ordered by 
either House of Congress or by any committees of either House having jurisdic- 
tion over revenue, appropriations, or expenditures. The Comptroller General shall 
also, at the request of any such committee, direct assistants from his office to 
furnish the committee such aid and information as it may request. 

(c) The Comptroller General shall specially report to Congress every ex- 
penditure or contract made by any department or establishment in any year in 
violation of law. 

(d) He shall submit to Congress reports upon the adequacy and effectiveness 
of the administrative examination of accounts and claims in the respective 
departments and establishments and 1 upon the adequacy and effectiveness of 
departmental inspection of the offices and accounts of fiscal officers. 

(e) He shall furnish such information relating to expenditures and account- 
ing to the Bureau of the Budget as it may request from time to time. 

INFORMATION FURNISHED TO COMPTROLLER GENERAL BY DEPARTMENTS AND 

ESTABLISHMENTS 

Sec. 313. All departments and establishments shall furnish to the Comptroller 
General such information regarding the powers, duties, activities, organization, 
financial transactions, and methods of business of their respective offices as he 
may from time to time require of them : and the Comptroller General, or any of 
his assistants or employees, when duly authorized by him, shall, for the purposes 
of securing such information, have access to and the right to examine any book, 
documents, papers, or records of any such department or establishment. The au- 
thority contained in this section shall not be applicable to expenditures made 
under the provisions of section 291 of the Revised Statutes. 

Legislative Reorganization Act of 1946 — Public Law 601, 79th Congress 

expenditure analyses by comptroller general 

Sec 206. The Comptroller General is authorized and directed to make an 
expenditure analysis of each agency in the executive branch of the Government 
(including Government corporations) which, in the opinion of the Comptroller 
General, will enable Congress to determine whether public funds have been 
economically and efficiently administered and expended. Reports on such analyses 
shall be submitted by the Comptroller General, from time to time, to the Com- 
mittees on Government Operations, to the Appropriations Committees, and to 
the legislative committees having jurisdiction over legislation relating to the 
operations of the respective agencies, of the two Houses. 



3044 

Budget and Accounting Procedures Act of 1950 — Public Law 784, 
81st Congress 

Sec. 117. (a) Except as otherwise specifically provided by law, the financial 
transactions of each executive, legislative, and judicial agency, including but 
not limited to the accounts of accountable officers, shall be audited by the Gen- 
eral Accounting Office in accordance with such principles and procedures and 
under such rules and regulations as may be prescribed by the Comptroller Gen- 
eral of the United States. In the determination of auditing procedures to be 
followed and the extent of examination of vouchers and other documents, the 
Comptroller General shall give due regard to generally accepted principles of 
auditing, including consideration of the effectiveness of accounting organiza- 
tions and systems, internal audit and control, and related administrative prac- 
tices of the respective agencies. 

Legislative Reorganization Act of 1970 — Public Law 510, 91st Congress 
assistance to congress by general accounting office 

Sec. 204. (a) The Comptroller General shall review and analyze the results 
of Government programs and activities carried on under existing law. including 
the making of cost benefit studies, when ordered by either House of Congress, 
or upon his own initiative, or when requested by any committee of the House 
of Representatives or the Senate, or any joint committee of the two Houses, 
having jurisdiction over such programs and activities. 

(b) The Comptroller General shall have available in the General Accounting 
Office employees who are expert in analyzing and conducting cost benefit studies 
of Government programs. Upon request of any committee of either House or any 
joint committee of the two Houses, the Comptroller General shall assist such 
committee or joint committee, or the staff of such committee or joint committee — 

(1) In analyzing cost benefit studies furnished by any Federal agency 
to such committee or joint committee : or 

(2) In conducting cost benefit studies of programs under the jurisdiction 
of such committee or joint committee. 

Mr. Keller. I would call the subcommittee's particular attention 
to section 204(a) of the Legislative Reorganization Act of 1970 
which directs the Comptroller General to "review and analyze the 
results of Government programs and activities carried on under exist- 
ing law, including the making of cost benefit studies, when ordered by 
either House of Congress, upon his own initiative, or when requested 
by any committee * * * having jurisdiction over such programs and 
activities." 

We think this section is important because it goes a lot further than 
just looking at vouchers and strictly financial type audits. It calls for 
program evaluation. Consequently, many of the records we need in- 
volve how a program is being carried out and what are the results 
rather than being limited to how much a particular program costs, or 
how much was paid out under a contract, and so forth. 

The more important factors underlying the law, the intent of the 
Congress, and GAO's policy of insisting on generally unrestricted 
access to pertinent records of agencies and contractors in making GAO 
audits and reviews are : 

(1) An adequate, independent, and objective examination contem- 
plates obtaining a comprehensive understanding of all important 
factors underlying the decisions and actions of the agency or contractor 
management relating to the subject of GAO examinations. 

(2) Enlightened management direction and execution of a program 
must necessarily consider the opinions, conclusions, and recommenda- 
tions of persons directly engaged in programs that are an essential and 
integral part of operations. Likewise, knowledge of this type is just 



3045 

as important and essential to us in making an independent review and 
evaluation as it is to management in making basic decisions. 

(3) Agency internal audits and other evaluative studies are abso- 
lutely necessary. They are important tools by which management can 
keep informed of how large and complex activities are being carried 
out. Knowledge of the effectiveness with which internal review activi- 
ties are carried out and the effectiveness with which corrective action 
where needed is taken is absolutely necessary to GAO in the perform- 
ance of its responsibilities. 

(4) Availability of internal audit and other evaluative documents to 
GAO enables us to concentrate a greater part of our efforts in deter- 
mining whether action has been promptly and properly taken by 
agency officials to correct identified weaknesses, and helps eliminate 
duplication and overlapping in audit effort. 

We generally have had good cooperation in obtaining access to rec- 
ords of the executive departments except for the Department of State 
and the Department of Defense in those areas which involve our rela- 
tions with foreign countries, and with the exception of certain activi- 
ties of the Treasury Department and of the Federal Deposit Insur- 
ance Corporation. Also, quite recently an impasse has developed with 
the Emergency Loan Guarantee Board, which was established by Con- 
gress last year. 

INTERNATIONAL, ACTIVITIES 

We have been experiencing increasing difficulties in obtaining access 
to information needed in our reviews and evaluations of programs in- 
volving our relations with foreign countries. Specific examples of our 
problems in this area were included in our testimony on June 24, 1971, 
before the Senate Appropriations Committee, Subcommittee on For- 
eign Operations; and again on July 28, 1971, before the Subcommittee 
on Separation of Pow T ers, Committee on the Judiciary, U.S. Senate. I 
have with me a compilation of access-to-records problems encountered 
by GAO in making audits of foreign operations and assistance pro- 
grams, which we prepared in September 1971 at the request of the 
chairman, Senate Committee on Foreign Relations. With your concur- 
rence, Mr. Chairman, I will submit this compilation for the record at 
this point. 

Mr. Moorhead. Without objection it will be made a part of the rec- 
ord and, if you have any updating of that compilation, we would also 
welcome that. 

(The material follows :) 

Comptroller General of the United States, 

Washington, D.G., September 10, 1971. 
B-1635S2 

Hon. J. William Fulbright, 
Chairman, Committee on Foreign Relations, 
U.S. Senate, Washington, D.C. 

Dear Mr. Chairman : On February 25, 1971, you wrote to our office concerning 
executive branch denial of access to records. You pointed out that in recent years 
the committee has been denied access to many documents and other materials and 
that such denials preclude effective legislative oversight of executive branch per- 
formance. 

The basis for the executive branch denial of information to the Congress is the 
constitutional doctrine of separation of powers which is interpreted by the ex- 
ecutive branch as granting it a privilege to withhold information where such ac- 
tion is deemed necessary in the best interest of the country. 

76-253— 72— pt. 8 S 



3046 

You ask that our office analyze the matter and furnish a compilation of sum- 
maries of all significant instances in recent years when we have been denied ac- 
cess to executive branch records or materials. You also ask that we submit our 
legislative recommendations to insure that the Congress cannot be denied access 
to executive branch documents unless the President exercises executive privilege. 

As evidenced by the enclosed compilation and by recent testimony of officials 
of our office, insofar as GAO is concerned, absolute denial by the executive branch 
of access to records has in recent years been quite rare. For example in testifying 
on your bill S. 1125, 92d Congress, before the Subcommittee on Separation of 
Powers of the Senate Judiciary Committee, copy enclosed, the Deputy Comptroller 
General on July 28, 1971, characterized our current problems on access as being 
those of frustrations and delays in carrying out our statutory responsibilities 
rather than those attending outright refusal of access on claims of executive 
privilege. 

With regard to legislative recommendations, the Deputy Comptroller General 
stated in that testimony that the enactment of S. 1125 should result in a freer 
flow of information to the Congress and its committees except in those cases 
where the President himself has decided that disclosure shall be precluded on 
the ground of executive privilege. Specifically, he stated that, under the proce- 
dures contemplated by the bill, if the privilege is to be exercised by the Presi- 
dent there should be no delays in the hearing processes and if the privilege is 
not to be claimed there is no basis remaining that we can see which would 
justify failure to testify. We therefore feel that the enactment of S. 1125 should 
go a long way to reduce the problems of access to records by the Congress and 
its committees, and, aside from endorsement of S. 1125 we have no recom- 
mendations to make concerning this aspect of the problem. 

With regard to the delays that hinder effective performance of the duties of 
our Office, we feel that your amendment No. 343 to S. 1125 of July 29, 1971, 
would help avoid these delays and we are unable to fashion legislative recom- 
mendations which we feel would be more salutary than the language of your 
amendment. 

This amendment would impose a sanction along the lines of that now providing 
for a cut off of foreign assistance funds under section 634(c) of the Foreign 
Assistance Act of 1961, 22 U.S.C. 2394(c). Specifically, the amendment would 
provide that upon a determination by the General Accounting Office that any 
information requested of the executive branch by a committee or subcom- 
mittee of the Congress or the General Accounting Office has not been made avail- 
able within 60 days after the request has been received and if during such period 
the President has not signed a statement invoking executive privilege, no funds 
made available to the agency involved shall be obligated or expended commencing 
on the 70th day after such request is received by such agency unless and 
until such information is made available or the President invoke executive priv- 
ilege with respect to such information. In addition to helping to alleviate the 
problems that we have had in delays in obtaining access to information your 
amendment would also assist the Congress and its committees in day-by-day 
operations which require information, independent of the hearing processes. 

It is hoped that this letter and its enclosure will assist the committee in 
its consideration of this very important problem. We would of course be pleased 
to further assist the committee in any way that we can. 
Sincerely yours, 

R. F. Keller, 
Acting Comptroller General of the United States. 

Enclosure. 

Compilation of GAO Access to Records Problems Encountered in Making 
Audits of Foreign Operations and Assistance Programs 

In response to the request of the chairman, Senate Foreign Relations Com- 
mittee of February 25, 1971, we have made an analysis of the access to records 
problem, including a compilation of specific instances where the General Ac- 
counting Office (GAO) has been denied access or delayed in obtaining access 
to executive branch records or materials during recent years. 

We have cited examples of denials of information and delaying or hinder- 
ing actions that have taken place during eight overseas reviews conducted by 
GAO's International Division during approximately the last 2 years. Five 
of the reviews were conducted at the request of your committee and the remain- 
ing three were initiated by GAO. 



3047 

We believe the Budget aud Accounting Act of 1921, as reinforced by recent 
expressions of intent by congressional committees, leaves no doubt but that 
Congress and GAO are expected to have access to all records, documents, or 
papers necessary to effectively evaluate the various programs of the executive 
branch. 

However, the Departments of State and Defense have in many instances taken 
the position that certain information is not releasable to GAO and the Congress. 
Information has been denied our auditors both in the field and at the Wash- 
ington level and in certain cases, information has been supplied only after 
time consuming reviews by successively higher organizational levels within 
the Departments. 

The time-consuming processes employed by the departments in many cases 
have hampered our auditors in the discharge of their duties to the point that 
audit teams in the interest of our economical use of manpower resources had 
to be withdrawn from the audit site prior to a decision being made by the 
departments as to whether our request to examine documents would be ap- 
proved or denied. In other cases, information was provided on a piecemeal 
basis and certain documents were withheld which would have provided the 
continuity of departmental actions necessary in our evaluation of the overall 
program under review. 

In our opinion, the delays result in a de facto denial of records which should 
be made available in accordance with our legislative authority and the intent 
of Congress. 

Following is a list of types of information that we believe are necessary in 
the conduct of an audit but have not been provided in a timely manner or 
refused outright : 

1. Future planning information and documents, both formal and informal ; 

2. Internal working papers and staff recommendations relating to programs 
planned or in process ; 

3. Negotiation documents, papers, memorandums, and working papers, before, 
during and after negotiations, regardless of whether or not the information is 
considered sensitive; 

4. Management reports including recommendations or conclusions reached, 
whether approved or unapproved by higher authority, field trip reports, obser- 
vations, and records of conversations pertinent to the matters under review ; 

5. Access to records, documents or papers originated or directly related to 
foreign governments but in the possession of U.S. agencies, when they relate to 
programs in which the United States has a direct interest ; and 

G. Access to all U.S. supported bases and installations regardless of the 
geographical location. 

Following is a discussion of GAO's authority under the Budget and Account- 
ing Act of 1921, and the Foreign Assistance Act of 1961 ; Department of State 
and Department of Defense (DOD) and their various organizational elements, 
regulations, directives, or messages on GAO's right of access to information ; 
and examples of denials and delays of information by the Departments of 
State and Defense. 

GENEKAL ACCOUNTING OFFICE AUTHORITY 

The position of GAO is that full and complete access to all records pertaining 
to the subject matter of an audit or review is required. This is required in order 
that GAO can fully carry out its duties and responsibilities. The intent of the 
various laws assigning authority and responsibility to the GAO is clear on 
this point. This policy does not admit the propriety of any restrictions on 
GAO's legal authority other than that specifically contained in law. The right of 
generally unrestricted access to needed records is not only based on laws 
enacted by the Congress but is inherent in the nature of the duties and respon- 
sibilities of the GAO. 

The basic authority governing GAO's access to records of Government agencies 
is contained in section 313 of the Budget and Accounting Act, 1921 (31 U.S.C. 
54 ) as follows : 

"All departments and establishments shall furnish to the Comptroller Gen- 
eral such information regarding the powers, duties, activities, organization, 
financial transactions, and methods of business of their respective offices as he 
may from time to time require of them ; and the Comptroller General or any of 
his assistants or employees, when duly authorized by him, shall, for the purpose 



3048 

of securing such information, have access to and the right to examine any books, 
documents, papers, or records of any such department or establishment * * *" 
The more important factors underlying the laws and GAO's policy of insisting 
on generally unrestricted access to pertinent records of agencies and contractors 
in making GAO audits and reviews are summarized below : 

1. The making of an adequate, independent, and objective examination con- 
templates obtaining a comprehensive understanding of all important factors un- 
derlying the decisions and actions of the agency or contractor management re- 
lating to the subjeel of GAO examinations. 

2. Enlightened management direction and execution of a program must neces- 
sarily consider the opinions, conclusions, and recommendations of individuals 
directly engaged in programs that are an essential and integral part of opera- 
tions ; knowledge of these types is just as important in making an independent 
review as it is in making the basic management decisions. 

3. Withholding information could permit concealment of adverse conditions by 
responsible officials. The denial of information developed in an internal review 
to higher authority, or any other official properly concerned, hampers the external 
review and independent consideration of (he effectiveness and efficiency of the ac- 
tivities, and necessitates a duplication of effort and increased costs. 

4. Internal reviews on behalf of agency management are highly desirable. 
Such reviews represent one of the methods by which management can keep in- 
formed of how large and complex activities are being carried out. Management 
should take vigorous corrective action on any deficiencies disclosed. However, 
the effectiveness of a program of self-evaluation and management improvement 
is not dependent upon restricting the information developed to the individuals or 
departmental level responsible for the activity under examination. Such infor- 
mal ion is of great importance to higher administrative levels of review having 
a legitimate interest or concern in the subject. The effectiveness with which 
internal review activities are carried out and the effectiveness with which cor- 
rective action is implemented is clearly of interest and concern to the GAO in 
the performance of its statutory responsibilities and reporting to the Congress. 

5. There is no basis in law or logic for a distinction between factual informa- 
tion and internal opinions, conclusions, and recommendations insofar as our au- 
thority and need for information is concerned. A sharp distinction between these 
categories is not only difficult to make but physical segregation of them is 
impractical. 

6. The disclosure to the GAO of frankly stated internal opinions, conclusions, 
and recommendations is not contrary to the public interest. The system of man- 
agement control wdiich results in such internal communications should be properly 
conceived, administered, and dedicated to efficient and effective operations rather 
than oriented toward a defense of possible criticism. Under these circumstances, 
the requirement of disclosure should tend to improve the caliber of the internal 
opinions, conclusions, and recommendations rather than impair their usefulness 
to the management because of softened criticism, avoidance of doubtful matter, 
and general restraint. 

7. AH books, documents, papers, and other records relating to the costs borne by 
the United States are records relating directly to the financial interest of the 
United States. Such records are not limited to formal agreements or contracts and 
the supporting data, but include all underlying data concerning the need, utiliza- 
tion, and disposition of funds which afford the basis for or are involved in any 
way with the incurrence of costs by the United States. Pertinent records may 
include, but are not limited to records in support of (a) future plans and pro- 
grams, (b) internal working papers, observations and trip reports of advisers and 
(c) evaluations, recommendations and conclusions of internal evaluation groups. 

A remedy bearing on our access to records of Government agencies is contained 
in section 634c of the Foreign Assistance Act of 1961, as amended. Section 634c 
stales that: 

"None of the funds made available pursuant to the provisions of this Act shall 
be used to carry out any provision of this Act in any country or with respect to 
any project or activity, after the expiration of the thirty-five-day period which 
begins on the date the General Accounting Office or any committee of the Congress 
charged with considering legislation, appropriations or expenditures under this 
Act, has delivered to the office of the head of any agency carrying out such pro- 
vision, a written request that it be furnished any document, paper, communication, 
audit, review, finding, recommendation, report, or other material in its custody 
or control relating to the administration of such provision in such country or with 
respect to such project or activity, unless and until there has been furnished to 



3049 

the General Accounting Office, or to such committee, as the case may be, (1) the 
document, payer, communication, audit, review, finding, recommendation, report, 
or other material so requested, or (2) a certification by the President that he has 
forbidden the furnishing thereof pursuant to request and Ms reason for so doing." 
The above section applies only to funds appropriated under the Foreign Assist- 
ance Act: it is not applicable to the military service appropriations. 

DEPARTMENT OF DEFENSE AND DEPARTMENT OF STATE RESTRICTIVE REGULATIONS 

Both the Departments of Defense and State and their various organizational 
elements recognize GAO's rights to documents, records and papers as contained in 
the Budget and Accounting Act of 1921, but at the same time the Departments 
have directed that certain types of information not be furnished to GAO. Nor- 
mally these regulations or directives and implementing messages do not state 
that GAO cannot be furnished the information, but rather that their personnel in 
the field can not furnish the information unless authorization is received from 
higher authority ; this normally means officials of the Departments in Wash- 
ington. 

Following are pertinent excerpts from regulations, directives, and implement- 
ing messages of the Departments of State and Defense and their various organi- 
zation elements restricting GAO's right to records. 

DEPARTMENT OF DEFENSE 

The Department of Defense's basic policy guidance on cooperation with GAO 
and access to records is contained in DOD directive No. 7650.1, dated July 9, 
1958. Although the directive was not agreed to by us, it sets forth the working 
arrangement under which we have operated. That directive contains three cate- 
gories of information that DOD considers to be essentially nonreleasable to 
GAO — those are (1) budgets for future years' programs, (2) reports of non- 
Department of Defense agencies, and (3) reports of Inspector General and crim- 
inal investigation organizations. 

However, in some cases implementing messages from DOD and regulations by 
the military services and major commands have placed additional restrictions on 
GAO's access to records. The restrictions vary somewhat among the military serv- 
ices and commands. We believe the following two illustrations demonstrate the 
restrictions imposed by DOD on access to records necessary for GAO to make 
effective evaluation of DOD programs. 

1. U.S. European Command Headquarters, Directive No. 50-5 dated June 18, 1911 
The appendix to the above directive contains a listing of documents and cate- 
gories of information which the chiefs of Military Assistance Advisory Groups 
and missions may not release to GAO without approval from higher authority. 
They are as follows : 

( a) Recommended changes to force objectives. 

(b) Host country replies to NATO questionnaires and related MAAG analyses. 

(c) Information relating essentially to military or international planning con- 
siderations and pertaining to matters of strategy, such as w T ar plans or memo- 
randums leading to the formulation of such plans. 

id) The military assistance 5-year plan for a particular country except data 
included in the military assistance program which has been initially justified 
before the Congress. 

(e) The quantity and projected delivery of items and services included in a 
specific fiscal year military assistance program prior to the initial justification of 
the program before the Congress. 

(/) Operational status reports concerning tactical effectiveness of host country 
forces. (Factual data, such as personnel strengths and allowances and equip- 
ment inventories and allowances, may be extracted from these reports and 
furnished the GAO in response to a specific request for such data from the GAO.) 
Note : This restriction excludes combat capability rating assigned by chiefs of 
Air Force sections of the MAAG's. 

(g) Reports of the Inspector General, Foreign Assistance, Department of 
State. 

(h) USEUCOM command inspection reports. (Factual data specifically related 
to the area of the GAO audit may be extracted from these reports and furnished 
in response to a specific request for such data from the GAO) . 

(i) Documents to intelligence collection and analysis. 

i i i Host country documents, reports, and data. 



3050 

2. Joint State-Agency for International Development-Defense message dated 
December 18, 1910 

This message, which was drafted by DOD, was directed to the American Em- 
bassies in Bangkok, Manila, Saigon, and Seoul, and the Pacific Command in 
Hawaii. It stated missions and commands should not, without specific Wash- 
ington authority, allow GAO personnel to consult or otherwise have access to 
the following : 

(a) Documents relating to war plans, future military assistance service funded, 
or U.S. military operations budgets and planning data. 

(&) Confidential correspondence exchanged between heads of State. 

(c) Presidential memorandums. 

(d) Reports of tbe Inspector General. 

(e) Peformance evaluation reports. 

(/) Internal executive branch working papers and memorandums. 

(g) Telegrams, memorandums, or other documents revealing sensitive informa- 
tion about the conduct of U.S. negotiations with participating countries or South 
Vietnam. 

(h) Other material which the Ambassador or major military component com- 
manders consider may be sensitive and could, if revealed, have a serious adverse 
effect on the conduct of U.S. Government relations with the participating coun- 
tries or with other countries or might otherwise prejudice the national interests 
of the United States. 

The message also contained a statement that GAO representatives will have 
no need to consult participating country or Government of Vietnam officials or 
agencies for purposes of present review since such contacts could have adverse 
consequences. 

In reviewing the military service regulations it is interesting to note that the 
military service regulations were revised between July and September 1970 
which allows GAO access to planning estimates for specific programs. This 
revision, however, has not been incorporated in DOD regulations and imple- 
menting instruction. 

DEPARTMENT OF STATE 

The Department of State's basic overall policy guidance for making docu- 
ments available to GAO is contained in their Foreign Affairs Manual (FAM), 
volume 4, section 934. The FAM quotes the pertinent part of section 313 of the 
Budget and Accounting Act, and states it is the State Department's policy to 
cooperate by making available to GAO representatives their documents. 

However, the FAM further states that Department of State approval is to be 
obtained first when in the opinion of the Ambassador or bureau head any docu- 
ment requested by GAO is of such significance that : 

1. Its disclosure would seriously impair relations between the United States 
and other countries in the conduct of foreign affairs, or otherwise prejudice 
the best interests of the United States. 

2. It is a document directed to the President, the National Security Council, 
or a similar White House board. 

3. It is a document relating to formulation of sensitive substantive policy 
(as distinguished from a statement of or implementation of policy). 

4. It is a document that is generally restricted, such as personnel security 
files, records relating to citizenship of individuals, Foreign Service inspectors' 
reports, visa records, intelligence and investigative records, and classified ma- 
terial of other agencies except in accordance with the applicable regulations and 
consent of the originating agency. 

In a November 17, 1970, message from the Department of State to all diplo- 
matic and consular posts, the State Department restated their guidance on the 
release of information and documents to GAO. The message emphasized that 
while GAO has a statutory basis for requesting information and access to docu- 
ments, the President at the same time, enjoys the historic privilege of withhold- 
ing certain information the disclosure of which would be incompatible with 
the public interest. 

The message enumerated the restrictions on GAO's access to records as con- 
tained in the FAM and also stated that sensitive information about the conduct 
of U.S. negotiations with foreign countries may come within the category of 
information restricted to GAO. The message also stated that should GAO repre- 
sentatives indicate an intention to approach the host government, they should 
be discouraged from doing so, unless contrary guidance is received from the 
State Department. 



3051 

In a letter dated December 16, 1970, the Comptroller General requested the 
Secretary of State to rescind the additional restrictions placed on GAO's access 
to records as contained in the November 17, 1970, message from the Department 
of State. The Comptroller General noted in his letter that the new instructions 
would compound the problems that GAO has been experiencing in obtaining 
access to records pertinent to our reviews. A copy of the Comptroller General's 
letter was also forwarded to the Assistant to the President for National 
Security Affairs on December 19, 1970, in view of the fact that the Secretary 
of State's message was cleared by the White House prior to release. 

On January 22, 1971, the State Department replied to the Comptroller Gen- 
eral that it was not the intention of the State Department to issue more restric- 
tive regulations regarding GAO's request in the field for access to documents, 
but rather to remind their overseas locations of the existing procedures as con- 
tained in the FAM on access to sensitive documents. 

At the request of the Comptroller General, the State Department informed 
all diplomatic and consular posts on February 16, 1971, that it was not the in- 
tention of the November 17, 1970, message to impose additional restrictions on 
GAO's access to records. 

The Assistant to the President for National Security Affairs replied on Feb- 
ruary 27, 1971, to the Comptroller's letter of December 19, 1970, and stated that 
the policy of the administration remains one of the fullest cooperation with the 
Congress and with the GAO. The letter, however, noted that in regard to the 
requirement for U.S. missions in the field to refer sensitive decisions back to 
Washington, that this seems a reasonable administrative procedure, and that it 
remains incumbent upon the departments to assure that such referrals are 
handled with dispatch here in Washington. 

Based upon the delays that occurred in GAO's gaining access to records dur- 
ing our reviews, we believe that the implementing restrictions of November 17, 
1970, to the FAM did in effect result in additional restrictions on GAO's access 
to records. Examples are included in the following section. 

EXAMPLES OF DELAYS AND DENIALS OF INFORMATION BY THE DEPARTMENTS OF 

DiJtENSE AND STATE 

The Departments by their regulations, directives, and implementing messages 
have established hierarchic systems which have seriously restricted their field 
organizations in responding to requests for certain types of information. In many 
instances, after long delays occasioned by the referral of GAO requests to Wash- 
ington, the information requested was received. However, by that time our field 
auditors were no longer at the site and were not in a position to properly evalu- 
ate the information in conjunction with other matei*ial at the site and could not 
readily obtain the views of the personnel most familiar with the information. 

In addition to these delaying tactics, which hindered an effective timely evalu- 
ation of U.S. programs overseas, we were also denied other pertinent and sig- 
nificant information needed to properly carry out our statutory responsibilities. 
In one instance, we were denied the right to conduct a review ; while in two other 
instances, we were denied the right to visit U.S. -supported military bases in 
Vietnam. 

Shown below are a few examples of the denials and delaying tactics encoun- 
tered by GAO during eight overseas reviews conducted during the last 2 years. 

DEPARTMENTS OF DEFENSE AND STATE REFUSAL TO ALLOW GAO TO VISIT U.S.-SUPPORTED 

BASES IN VIETNAM 

The Departments of Defense and State have denied permission to GAO to 
visit the Thai and Korean camps in Vietnam. Our reasons for requesting the 
visits were to observe the large amount of U.S. equipment and supplies pro- 
vided to the Thai and Korean troops and to talk with U.S. military liaison 
personnel stationed at the camps as to their duties and responsibilities. An 
additional reason for our requests to visit the camps was the fact that we had 
observed during a visit to the Thai Overseas Replacement Training Center in 
Thailand on September 18, 1970, what appeared to be large amounts of excess 
equipment. 

On September 21, 1970, we verbally requested permission from the Commander, 
U.S. Military Assistance Command, Vietnam, to visit Camp Bearcat, location of 
the Thai contingent. We were informed by the commander on September 23. 1970, 
that the visit would not be authorized without prior clearance from higher head- 



3052 

quarters and that our request should he submitted in writing, which we did on 
September 25, 1970. While our request stated that we did not intend to talk to 
any Thai personnel during the visit to the camp, nevertheless, U.S. military 
officials in Vietnam, with concurrence of U.S. Embassy officials in Bangkok and 
Saigon, denied us permission to visit the installation at that time without clear- 
ance from higher authority. The reason cited for denying our request was that 
GAO should have no need to consult host country officials or agencies and that 
such contacts could have adverse consequences. 

The Department of State sent a message dated November 17, 1970, to all of 
its diplomatic and consular posts which provided guidance to the posts for han- 
dling GAO examinations. Among other things, the guidance stated that GAO 
representatives should be discouraged from consulting host country officials or 
agencies, unless contrary guidance was received from the Department. A joint 
State-Agency for International Development-Defense message, dated December 18, 

1970, reaffirmed this guidance (see page 3068). 

The Comptroller General, in a letter to the Secretary of State, dated Decem- 
ber 16, 1970, pointed out that GAO has regularly made visits to host government 
installations to see how assistance financed by the United States is being used. 
He stated that such inspections are essential if GAO is to carry out its responsi- 
bilities for evaluating the effectiveness and improving the management of U.S. 
programs. He further stated that any contacts GAO might have with host country 
officials are arranged through U.S. country team channels, and that we know of 
no problem that has arisen as a result of this phase of our reviews. 

On February 5, 1971, our office in Saigon requested permission from the Com- 
mander. U.S. Military Assistance Command, Vietnam, to visit the Korean Base 
Camp at Qui Nhon. Vietnam. As with the Thai base camp request, our office 
stated that we did not intend to contact Korean personnel or review Korean 
records, but that we wished to make some visual observations of the condition 
and utilization of U.S. -provided facilities and equipment. However, on March 6, 

1971. a message from the Secretary of Defense to Commander in Chief. Pacific 
(CINCPAC) stated that the requested GAO visit was disapproved, and that GAO 
should be satisfied to interview U.S. military liaison personnel at some U.S. 
facility, other than Qui Nhon. 

Contrary to DOD's opinion, the proposal was not satisfactory for purposes of 
auditing. It would not enable us to make a firsthand observation of the existence, 
condition, and utilization of U.S. property provided the Korean forces for their 
use. We believe that the disapprovals of our requests to visit the Thai and 
Korean base camps in Vietnam were not justified. Furthermore, the disapprovals 
effectively prevented GAO from exercising its statutory responsibilities. 

REFUSAL OF THE STATE DEPARTMENT TO ALLOW GAO TO CONDUCT AN OVERSEAS REVIEW 

In March 1971, 13 months after GAO informed the U.S. Embassy in Germany 
that we planned to conduct a review of U.S. occupation costs in Berlin, we were 
informed by the Department, of State that we would not be permitted to do so. 

Our proposed review was designed to assure ourselves and the Congress that 
the U.S. occupation costs in Berlin which are properly chargeable to the Federal 
Republic of Germany are in fact borne by them, and that U.S. Government 
financial interests are being properly protected. Accordingly, in February 1970, 
we informed the U.S. Embassy in Germany and U.S. Army officials of our plan 
to review the U.S. occupation costs in Berlin. At the time, U.S. Army officials 
interposed no objections to our examination of their records and processes. How- 
ever, a U.S. Embassy official expressed a reservation that the basic audit agree- 
ment on Berlin did not permit an independent review by any of the powers' 
supreme audit organizations. In our discussion with Embassy and Department 
of State officials, we emphasized that our review would be limited solely to U.S. 
occupation costs and would be based on records available in the U.S. agencies. 

In our attempt to resolve the issue, an official of our office, in May 1970, 
formally requested that the Department of State authorize access to the perti- 
nent, records so that we could proceed with our review. In June 1970, we were 
advised by the Deputy Under Secretary for Administration and the Assistant 
Secretnry for European Affairs. Department of State, that we could anticipate 
a reply to our request soon. After we had pressed for an answer over a period 
of 9 months through letters, telephone calls, and meetings, we were officially 
advised in March 1971 that access was denied. 



3053 

In denying ns access, the response by the Department of State made no 
reference to invoking executive privilege ; the Department of State does not have 
authority to deny us the right to examine the records or to conduct the review. 

The General Accounting Office has the authority and responsibility to audit 
U.S. records relating to expenditures and receipts of the United States. Refusal 
on the part of the Department of State to permit our staff to review the necessary 
records concerning occupation costs in Berlin precludes us from carrying out our 
responsibility for audits as provided by the Congress under section 305 of the 
Budget and Accounting Act, 1921. This section states that : 

"All claims and demands whatever by the Government of the United States 
or against it, and all accounts whatever in which the Government of the United 
States is concerned, either as debtor or creditor, shall be settled and adjusted 
in the General Accounting Office." 

Thus, the right of the General Accounting Office to unrestricted access to perti- 
nent records is not only based on laws enacted by the Congress but is also 
inherent in the nature of the duties and responsibilities assigned by the Congress 
to the General Accounting Office. 

In the latter part of April 1971. we reported this matter to eight committees 
of the Congress as well as to the Secretary of State. Following issuance of the 
report, the chairman, Senate Committee on Foreign Relations addressing a letter 
to the Secretary of State requesting an explanation of the matter. As of June 1971 
GAO has not been advised of a Department of State response. 

MANAGEMENT REPORTS, TRIP REPORTS, AND SO-CALLED INTERNAL WORKING PAPERS 

DENIED TO GAO 

The GAO during its review and evaluation of United States programs, when- 
ever possible, utilizes the various reports prepared by executive branch personnel 
to avoid duplication of effort, and to ascertain the degree of internal management 
control exercised by executive branch personnel over the various programs in- 
volving U.S. expenditures. 

The denial of these reports to GAO, including the recommendations and con- 
clusions reached by personnel preparing the reports, seriously hinders the GAO 
from being responsive to congressional requests in a timely manner, and results 
in duplication of effort and expenditure. Following are a few examples of this 
type of information denied to GAO. 

Management reports. — In connection with our review of the administration 
of the military assistance training program, we requested access to CINCPAC 
Personnel Evaluation Group reports for Korea, Thailand, and China. These per- 
formance evaluation group reports are a product of a CINCPAC evaluation group 
responsible for evaluating the effectiveness of the military assistance program 
and the various military assistance organizations in the Pacific Command. There- 
fore, in order for us to ascertain any program weaknesses and duplications of 
effort, the reports prepared by this internal management group were essential. 

In March 1969 CINCPAC denied us access to the evaluation reports for Korea. 
We made a formal request to the Secretary of Defense for reports pertaining to 
Korea, Thailand, and China. Four months after our request, the Secretary of 
Defense, in a letter dated August 4, 1969, informed us that the reports were not 
releasable at that time. The Secretary of Defense gave approval on November 
25. 1969, for CINCPAC to furnish briefings on the "salient training facts" in 
the evaluation reports. On December 16. 1969, our Far East branch received a 
CINCPAC briefing covering the military assistance program training data report- 
edly contained in the 1969 reports for Korea, China, and Thailand. We advised 
the' DOD personnel briefing us that the general information provided in the 
briefing was of little value to us in performing our review due to lack of detailed 
data. We were told that CINCPAC policies and instructions prevented the release 
of necessary portions of the evaluation reports involving opinions, evaluations, 
and future planning data. 

Trip reports. — In connection with our review of the use of Department of 
Defense excess defense articles in military assistance activities, we were denied 
access to official trip reports by DOD officials in Greece. The reason for our 
request was that trip reports, in addition to the factual matters contained 
in the reports, also contain opinions, observations, and recommendations sub- 
mitted by subordinates making field inspections. Unless we receive access to 
the factual information and related interpretations we are inhibited in identify- 
ing problem areas. 



3054 

Because of this need, our European branch representatives requested copies of 
the Army advisors' trip reports on March 8, 1971. On March 11, 1971, the Joint 
U.S. Military Advisory Group, Greece, agreed to try and extract for our use, 
certain portions of the trip reports. Headquarters, U.S. European Command 
Directive 50-5 permits the release of trip reports after opinions, observations 
and recommendations, which do not represent final actions, have been removed. 
However, on March 19, 1971, on the basis of a cable received from the Depart- 
ment of Defense providing guidance on GAO access, the Joint U.S. Military Ad- 
visory Group, Greece, informed us that they would not provide any portion of 
the trip reports that we had requested. 

Contents of the DOD cable which established this guidance for the Joint U.S. 
Military Advisory Group, Greece, was not made available to us. 

Internal working papers. — In connection with our review of U.S. assistance to 
Thailand in consideration of their deployment of forces to Vietnam, the Depart- 
ments of Defense and State have refused us access to a document outlining the 
criteria for payments to the Thai Government. The document is referred to as the 
"Scope" document. It is our understanding that this document sets forth the 
financial framework within which the United States and Thailand operate and 
the specific commitments and activities the United States engage in relative to 
support of Thai troops participating in the free world military assistance program 
in Vietnam. 

The Department of Defense refused us access to the Scope document on the 
basis that it was an internal working agreement, and the Department of State 
on the basis that the document did not originate with them. 

The Scope document according to information provided to us in Thailand, has 
been used by a U.S. committee in Thailand to evaluate claims for reimbursement 
submitted by the Thai Government in connection with their forces serving in 
Vietnam. In our opinion we must know the criteria used by the committee as 
established in the Scope document if we are to determine that the committee is 
properly evaluating the Thai claims. 

We first requested the Scope document from military officials in Thailand on 
July 21, 1970. On August 11, 1970, our onsite auditors were informed by the 
Military Assistance Command, Thailand, that decision on release of the Scope 
document has been referred to higher authority. We were also informed ver- 
bally that the U.S. Embassy in Bangkok was objecting to the release of the 
document. We contacted State Department officials on August 26. 1970. and they 
stated they had the document, but that since it was a DOD document they could 
not release it to us. 

On September 1, 1970, we verbally requested that DOD furnish us a copy of 
the Scope document and on September 9. 1970, we made the request in writing. 
In reply to our request DOD on November 4, 1970, stated the following : 

"The Scope document is a draft internal working agreement between the 
United States and the Royal Thai Government (RTG) concerning reimburse- 
ment rates and procedures, which is still under negotiation. Therefore, since it 
has no official status, the Scope document is not considered suitable for release to 
the GAO." 

In our opinion the Scope document was clearly a working document needed in 
our review and should have been made available to us. It is interesting to point 
out that the DOD refusal as quoted above was classified when initially trans- 
mitted to us by DOD, and Was not declassified until we specifically requested 
DOD to declassify the statement. 

PERTINENT PLANNING DATA NOT PROVIDED TO GAO 

GAO, in its reviews of overseas programs, very often needs to know the future 
planning information of the Departments of Defense and State to properly eval- 
uate the effectiveness of current programs. This planning data often shows the 
justification or rationale for current programs, and the planned methods or 
programs to solve deficiencies or shortfalls. 

Far example, during our review of the use of DOD excess defense articles in 
Greece, which began in Greece on February 17, 1971, we requested data used by 
the Joint U.S. Military Advisory Group in programing excess material for Greece 
under the military assistance program. Some of the data requested included mili- 
tary assistance program force objectives, annual future year planning data, 
equipment authorization documents, and assets and delivery data to support 
requirements. The information requested was required in order to properly 



3055 

validate the basis upon which the requirements for excess materials were com- 
puted and to evaluate the utilization of the material by the recipient country. 

GAO was subsequently denied the requested planning data although some con- 
solidated requirements and asset data was provided. The accuracy of the limited 
data provided could not be verified because military assistance program supported 
listings and equipment authorization documents were not made available. 

Due to restricted access, the GAO field team suspended its review efforts in 
Greece on March 27, 1971, pending resolution of the access problems. At the time 
of its departure from Greece, 24 written requests for information which had been 
submitted by the staff to the Joint U.S. Military Advisory Group, Greece, were still 
unanswered. 

The termination of the work in Greece was followed by a series of discussions 
and correspondence between the GAO field staff and the U.S. European Command 
in an attempt to reach an agreement on the access problem. The GAO staff in 
Washington also requested the assistance of the office of the Assistant Secretary 
of Defense for International Security Affairs. Throughout these discussions, the 
withholding of information from GAO was defended by DOD officials primarily 
because it was (1) closely related to Joint Chiefs of Staff objectives which were 
not releasable to GAO, (2) host country developed data which could be released 
only with country concurrence, or (3) North Atlantic Treaty Organization infor- 
mation not releaSable by the Joint U.S. Military Advisory Group, Greece. 

On May 5, 1971, an understanding was reached as to the additional information 
which would be made available to GAO in both Greece and Turkey. The extent 
of the additional information to be released was not acceptable to GAO, since it 
represented abstracted data which could not be verified against source docu- 
mentation. Moreover, the release of much of the supporting data for requirements 
computations which was to be provided, remained subject to the approval of the 
host countries, and under the ground rules established by the U.S. European 
Command, virtually no evaluative data would be made available. However, in 
order to obtain as much information as possible on the use of excess material, 
the GAO field staff returned to Greece on May 24, 1971, to resume the review 
work which had been suspended almost 2 months earlier. 

At the request of the chairman, Senate Committee on Foreign Relations, GAO, 
in January 1969. undertook a major review of the military assistance training 
program in 10 countries, including China and Thailand. In the initial phases of 
the review GAO had a number of problems in obtaining information necessary 
for the review. As a result, the chairman, Senate Committee on Foreign Rela- 
tions, in a letter to the Secretary of Defense, dated May 21, 1969, requested that 
the Secretary of Defense insure that GAO be given access to planning informa- 
tion and all other pertinent information. 

On June 26, 1969, the Secretary of Defense replied to Chairman Fulbright's 
letter of May 21, 1969. The Secretary of Defense stated that the formal 5-year 
plan for the military assistance program had not, in the past, been made avail- 
able to GAO or to the chairman, House Committee on Foreign Affairs, because 
the plan is regarded as a staff study, an entirely tentative planning document at 
the staff level, and is usually extensively adjusted when the size of the budget 
submission is decided on by the President. The Secretary of Defense also stated 
that he. in order to fully cooperate with the committee, would have DOD officials 
give detailed briefings on the plan, as it relates to training, to anyone designated 
by Senator Fulbright. 

On August 4, 1969, the Secretary of Defense sent a message to the Unified 
Commands, stating that GAO could be briefed on the military assistance program 
5-year training program, comprising for the most part 5-year dollar projections. 
The message further stated that this guidance was based on the Secretary 
of Defense reply to Senator Fulbright's May 1969 inquiry as to the release of 
information to GAO. 

In a message dated September 21, 1969. CINCPAC informed the Secretary of 
Defense that the GAO representatives in China and Thailand had requested ac- 
cess to the military assistance program planning reference books for those coun- 
tries. The messages stated that CINCPAC, in accordance with DOD guidance, 
would advise CINCPAC representatives in those countries to provide narratives 
of the books, provided that extensive editing would not be required to eliminate 
future planning information. The message concluded by requesting that the Sec- 
retary of Defense formally refuse GAO's request for the books because only the 
Secretary of Defense could properly do so, in accordance with a DOD directive. 

On September 26, 1969, the Secretary of Defense advised CINCPAC that the 
guidance furnished on August 4, 1969, still applied, and that if GAO repre- 



3056 

sentatives requested additional future planning information beyond that au- 
thorized, the request should be made to DOD through GAO in Washington, since 
only the Secretary of Defense can deny such a request. 

A month later, October 27, 1969, the Military Assistance Command, Thailand, 
received approval from CINCPAC to release edited versions of the military 
assistance program planning books. 

In our opinion, receipt of information which has been edited and then pro- 
vided GAO in briefings does not provide the substantive indepth information 
required for our evaluation purposes. We believe that the unexpurgated versions 
of narrative sections of the plan should be made available to us so that we can 
review and analyze the reasoning and justification of actions taken or proposed 
with background data that DOD had reference to on making their judgments 
and decisions. 

In our review of military assistance to the Republic of China in 1970, we were 
denied access by the DOD to a military air defense study for the island of 
Taiwan, as well as the joint strategic objectives plan for the Republic of China. 
We were told by DOD that the two documents contained contingency war plans 
as well as future year planning and were internal management working docu- 
ments; therefore, they could not be released to us. This denial inhibited 
our evaluation of the integration, coordination, and contribution of DOD's plan- 
ning to the achievement of overall U.S. objectives. 

DELAYING TACTICS OF THE DEPARTMENTS OF DEFENSE AND STATE 

The Departments of Defense and State have instructed their field personnel 
not to provide sensitive information to our field auditors, but to refer the request 
to Washington. The Departments in their guidance provided examples of some 
categories of information, such as negotiation documents, and agreements with 
foreign governments which are to be considered sensitive, but the decision on the 
classification of documents as sensitive in respect to nonreleasability to GAO 
apparently rests with appropriate responsible officials in the field. As a result 
of this guidance, our auditors have been unable to obtain needed information 
when requested. Documents classified as sensitive have been subject to many 
levels of reviews, and often before a decision was reached in Washington many 
months elapsed and our field auditors had left the field site when a decision to 
release the information had finally been reached. 

For instance, in early 1970, we undertook a review of the U.S. assistance to 
the Philippine Government in support of the Philippine Civic Action Group at the 
request of the chairman. Subcommittee on U.S. Security Agreements and Commit- 
ments Abroad, Committee on Foreign Relations, U.S. Senate. The Departments of 
State and Defense delayed our work on this assignment to the extent that we 
had to curtail the scope of our review and qualify our report to the chairman. 

Members of our staff were required to wait for periods of 2 weeks to 2 months 
to look at some documents they had requested, and frequently the documents 
proved to be of little value for our purposes. We were also restricted by ground 
rules established unilaterally by the Departments that effectively limited our 
review in the field to the Departments' very narrow interpretation of what it 
judged to be the scope of our review. This was perhaps the most restrictive 
limitation placed on our work, and it completely frustrated our attempts to review 
assistance to the Philippines that was not funded in the military functions 
appropriations. 

Our audit staff members in the field were advised that documents which they 
requested that were releasable to us under the restrictions of the so-called 
ground rules had to be dispatched to Washington for departmental clearance. 
By early May 1970, only four of 12 documents which were requested by our staff 
members on January 23, 1970. had been released to them in Manil- -. 

In our review involving U.S. assistance to Thailand, our Far East branch 
requested on July 30. 1970, certain adjutant general documents and message 
logs from the Military Assistance Command. Thailand. The message logs were 
requested in order to identify documents, records, or messages pertinent to our 
review. The Military Assistance Command advised us in the latter part of Vugusl 
1970, that it had been necessary to request guidance from higher authority as 
to releasability of the information and suggested that GAO. also, contact such 
authority at the Washington. D.C.. level. Following their suggestion, we ad- 
dressed our request to the Department of Defense in Washington on September 
9. 1970. We learned that following our request in August, the Military Assist- 



3057 

auce Command officials had referred our request to the Embassy in Bangkok, 
who in turn referred the request to the State Department on August 31, 1970. 
The Department had informed the Embassy in Bangkok that they had no basic 
objection to the release of the logs; however, since they had not seen the logs, 
the Embassy would have to decide as to whether to release the logs. In a letter 
dated November 4, 1970 to GAO the Department of Defense stated that their 
division was that access to the logs was authorized, provided the contents were 
releasable in accordance with existing guidance. However, by this point in time, 
the GAO audit staff had left the audit site where the logs were located. Thus, 
the purpose in examining the logs was as effectively defeated by the delays en- 
countered as if an outright denial by the Departments had been made initially. 

In connection with Thailand's involvement with free world forces in Vietnam, 
we requested information from the Department of the Army on October 6, 1970, 
concerning the computations by which they had arrived at certain amounts shown 
in quarterly reports to the Congress. This request was made in order that we 
might evaluate the validity and accuracy of the amounts shown in the quarterly 
reports submitted by the Department of Defense to the Congress. Although this 
information was prepared by October 23, 1970, it was not released until March 
19 1971 In a similar request for data made on October 12, 1970, the response 
was not furnished until March 25, 1971, even though we had made repeated 
attempts to elicit the information. 

In connection with our current review of utilization of excess defense articles 
in M>P we requested a country-to-country agreement between the United 
States and Australia on March 31, 1971. The agreement involves the overseas 
procurement transaction for the acquisition of trucks and trailers in Australia 
for delivery to Cambodia. The purpose for the request was to enable us to as- 
certain why the arrangement was made in lieu of alternatives available and 
whether, in fact, the agreement was a form of consideration to the Australian 
Government for their participation in the support of our efforts in Vietnam. 

We first made our request for the agreement to the Department of State on 
March 31, 1971. On the same date the Department of State informed us that the 
agreement was dated March 4, 1971. and that they believed the document was 
unclassified but that our request should be channeled to the Department of 
Defense, rather than to them. Upon addressing our request to the Department of 
Defense on April 6, 1971, they referred us back to the State Department because 
State clearance was necessary for release of the agreement. The Department of 
State advised us on the same day that they were unable to release the document 
until they acquired clearance from the Australian Government through the 
Australian Embassy. On April 14, 1971, the State Department advised us that 
the Department of Defense had sought this clearance from the Embassy ; how- 
ever, on the same date, we received a denial from the Department of Defense 
of any such communication with the Australian Embassy. On April 15, 1971, 
the State Department informed us that the Department of Defense had received 
the Australian Government's clearance but that the Department of Defense must 
first present a written request for State Department clearance. On the same 
date, April 15, the Department of Defense told us the Australian clearance was 
still pending. Four days later, the Department of Defense told us that more 
internal coordination was necessary before a release was possible. In a followup 
concerning the status of our request, on April 28. 1971, the Department of Defense 
official whom we had contacted stated he had forgotten our request. 

Finally, on May 5, 1971, DOD provided the agreement as requested. The agree- 
ment provided to* GAO was classified although the agreement on file in the legal 
section of DOD was not so classified. In our opinion, the material included in 
the agreement does not appear to be of such a nature that the interests of the 
United States would be adversely affected if its contents were released to the 
public. 

During our review of financial and material assistance provided to the Thai 
Government by the United States, our Far East branch representatives requested, 
on July 21 and July 28, 1970, 16 messages from the Military Assistance Com- 
mand. Thailand, that wtre not received until January 27, 1971. The messages 
were originated by the Commanders, U.S. Military Assistance Commands, Thai- 
land and Vietnam, the Secretary of Defense, the Department of the Army, and 
the Joint Chiefs of Staff during the latter part of 1967 and early 1968. Each of 
these messages was vital to our effective evaluation of U.S. assistance to the 
Thai Government. Their contents dealt with pertinent areas of our review, 
such as a HAWK missile svstem which the United States agreed to provide to 



3058 

the Thais, training and equipping of Thai Forces, U.S. support related to a 
Thai Army Division and its deployment to South Vietnam, and the possibilities 
of further Thai contributions to free world forces in Vietnam. 

As of August 28, 1970, the messages had not been received or made available 
for our review. Military Assistance Command, Thailand officials advised us 
that they had requested guidance from higher authority as to the reieasability 
of the messages, and suggested we contact such authority at the Washington, 
D.C., level. 

On September 9, 1970, we readdressed our request for the messages to the 
Department of Defense. Nearly 2 months later, on November 4, 1970, DOD 
responded, advising us that only two of the subject messages had been located. 
DOD stated that the two messages had been authorized to be released to our 
3T& r E is t rGT)rGSGiitu.tivGS. 

Finally, on January 23, 1971, DOD provided copies of the 16 requested messages. 
We believe that the 6-month delay, before we finally obtained all of the messages, 
was inexcusably long and seriously impeded our review. 

On December 11, 1970, our representatives in Korea requested from the Pro- 
visional Military Assistance Advisory Group, Korea, the Provisional Military 
Assistance Advisory Group, Korea Military Assistance Plan Fact Book for 1969 
Defense Ministers Conference. Since our representatives in Korea did not re- 
ceive the document, a similar request was addressed to the Department of De- 
fense in Washington on January 26, 1971. On January 29, 1971, our representa- 
tives in Korea were formally informed that the subject request had been referred 
to higher authority for determination as to reieasability. 

The document was provided to us in Washington on April 9, 1971, by tbe 
Department of Defense. Due to the delay of approximately four months involved 
in our acquisition of the document and the fact that our representatives had 
departed from the audit site by the time of receipt, we were denied the oppor- 
tunity to analyze and discuss the material with appropriate host country 
officials. 

Comptroller Genekal of the United States, 

Washington, D.G., October 13, 1911. 
Dear Mr. Secretary : In our discussion a few days ago I expressed to you my 
increasing concern with actions within the Department of Defense which are 
having the effect of denying GAO access to information and documents needed 
to carry out our responsibilities for review of international activities of the 
Department of Defense, especially military assistance activities. 

Various communications frOm your Department (Oflftce of Assistant Secre- 
tary of Defense, International Security Affairs) to the unified commands and 
military assistance advisory groups around the world and other related com- 
munications and directives have severely restricted the discretion of operating 
officials below the Department level to make information available to GAO 
auditors. __ 

As you know, one of the most important duties of the General Accounting 
Office 'is to make independent reviews of agency programs and to report to the 
Congress the manner in which Federal departments and agencies carry out 
the laws enacted by the Congress. Our responsibilities are not limited to financial 
transactions but cover both the efficiency and effectiveness of agency programs. 
This was clearly established by the Congress when it enacted section 312 of the 
Budget and Accounting Act of 1921 and was reiterated by Congress when it 
enacted section 204(a) of the Legislative Reorganization Act of 1970. The Con- 
gress in establishing the General Accounting Office recognized that the Office 
would need to have complete access to the records of the Federal agencies, 
and provided the basic authority in section 313 of the Budget and Accounting 
Act, 1921 (31 U.S.C. 54) as follows: 

"All departments and establishments shall furnish to the Comptroller Gen- 
eral such information regarding the powers, duties, activities, organization, 
financial transactions, and methods of business of their respective offices as he 
mav from time to time require of them; and the Comptroller, or any of his 
assistants or employees, when duly authorized by him, shall, for the purpose of 
securing such information have access to and the right to examine any books, 
documents, papers, or records of any such department or establishment. 
To illustrate the current restrictive measures, I am enclosing copies of : : 

1 Commander in Chief, Pacific, Instruction 7500.2B, dated May 20 1969 

2 European Command Headquarters Directive 50-5, dated June 18, iy7l. 
3. Joint State/AID/Defense message, dated December 18, 1970. 



3059 

We believe these measures have created an atmosphere which has discouraged 
overseas officials from cooperating with GAO auditors ; an atmosphere which has 
had the effect of restricting immediate access to information to data of a strictly 
financial nature. It has even been asserted by a DOD official in Washington that 
GAO requests for access to any document other than that normally categorized 
as being of a financial nature (implied as being only vouchers, bills of lading, 
receipts, and other similar documents) must be approved by the Department in 
Washington. We, obviously, could not function under those conditions. Note 
statutory citations to General Accounting Office authority enclosed. 

Enclosed is a copy of a statement by Mr. Stovall, Director of our International 
Division, before the Subcommittee on Foreign Operations, Senate Appropriations 
Committee, June 24, 1971. That statement presented our views on the problems 
of access which we had experienced up to that time. While that statement related 
in large part to difficulties we had encountered in the performance of work re- 
quested by congressional committees, the same types of difficulties are continuing 
in relation to current work projects generated by GAO on our own initiative. 

On several occasions, including mention in your letter to me dated September 
4, 1971, questions have been raised as to the distinction between our reviews 
which are self-initiated and those undertaken at the specific request of con- 
gressional committees, especially when the latter involve the GAO inquiring into 
the judgmental rationale of management decisions underlying budget requests. 
Pursuant to section 312(b) of the Budget and Accounting Act of 1921 I would be 
required to conduct any investigation requested by the Congress. Conceivably, an 
investigation undertaken at a specific congressional request could be for the 
purpose of advising the Congress, or a committee thereof, as to the alternatives 
available in connection with the funding of a program. You will recall we did 
such a study in 1969 on the MBT-70 at the request of the Chairman of the Senate 
Armed Services Committee. We had the complete cooperation of the Department 
of Defense in making this study. 

On the other hand, a review being made on our own initiative would normally 
be for the purpose of evaluating the overall management of an on-going program, 
or segment thereof, and reaching conclusions and outlining recommendations for 
improvement. I do not see the GAO role as a congressional bureau of the budget 
with responsibility for the review of departmental appropriation requests. How- 
ever, where our review of the results of an on-going program leads us to a point 
where there could be a question as to the forward funding of the program we 
would be amiss in not bringing this to the attention of Congress, but without 
making recommendations as to particular levels of funding. 

I am most interested, as I am sure you are, in establishing a mutual accommo- 
dation within which we can carry out our respective responsibilities, with due 
regard to the sensitivities of the matters under review. 

I believe you can appreciate the depth of my concern at what appears to be an 
increasing effort within the Department of Defense to restrict the General Ac- 
counting Office's capability to carry out its responsibilities to the Congress in the 
field of international matters. 

To clear the air and set the stage for joint efforts to establish better working 
relationships I believe that a personal expression of your views communicated to 
your representatives in Washington and overseas would be extremely helpful. 
We would then be glad to work with the Assistant Secretary of Defense (Comp- 
troller), or others that you designate, in the interest of accomplishing mutually 
acceptable working arrangements. 
Sincerely yours, 

(Signed) Elmee B. Staats, 
Comptroller General of the United States. 



U.S. General Accounting Office, 
Washington, D.C., Thursday, June 24, 1971. 

Statement of Oye V. Stovall, Director, International Division, U.S. General 

Accounting Office 

Mr. Chairman and Members of the Committee : We are appearing in response 
to your request for our views on the problems of access to records and informa- 
tion needed for performance of our audit responsibilities relating to the military 
assistance programs. 



3060 

One of the most important duties of the General Accounting Office is to make 
independent reviews of agency programs and to report to the Congress the man- 
ner in which Federal departments and agencies carry out the laws enacted by 
the Congress. The Congress in establishing the General Accounting Office, recog- 
nized that the Office would need to have complete access to the records of the 
Federal agencies, and provided the basic authority in section 313 of the Budget 
and Accounting Act. 1921, (31 U.S.C. 53, 54) as follows : 

"All departments and establishments shall furnish to the Comptroller General 
such information regarding the powers, duties, activities, organization, finan- 
cial transactions, and methods of business of their respective offices as he may 
from time to time require of them ; and the Comptroller, or any of his assistants 
or employees, when duly authorized by him, shall, for the purpose of securing 
such information, have access to and the right to examine any books, documents, 
papers, or records of any such department or establishment." 

GAO auditors, like all auditors, have to some degree always encountered prob- 
lems in obtaining access to records and information. These are occupational 
hazards but we usually have been able to resolve most of our problems without 
undue difficulty. However, in our reviews of military assistance programs, we 
have encountered increasing difficulties in obtaining information needed to 
effectively evaluate and report on the administration of these programs. During 
the past year or so a number of our audit assignments involving the foreign 
assistance programs have been hampered and delayed with the result that we 
have had to some extent curtail the scope of the audit, in effect being precluded 
from fully carrying out our responsibilities in these cases. 

It is not practical to raise the day-to-day access problems to the level of formal 
top requests and denials, and we have no evidence that any of the situations we 
have encountered involve the exercise of executive privilege. Absolute denial of 
access to a document, is quite rare. Our reviews are hampered and delayed more 
by the time-eonsuniing delaying tactics employed by the various organizational 
elements within and between the Departments of Defense and State in screening 
records and in deciding whether such records are releasable to the General Ac- 
counting Office. It is not unusual for our auditors to request access to a docu- 
ment at an overseas location and be required to wait several weeks while such 
documents are screened up the channels from the overseas posts and through the 
hierarchy of the Departments of Defense and State. 

Our experience in making a study of the military assistance training program 
at the request of the chairman, Senate Committee on Foreign Relations, is an 
example of the problems we have encountered in obtaining access to information. 
In our report to the chairman on this study in February 1971, we summarized 
our problems with access to records and set forth the following conclusion, which 
we believe points up the problems of access to records and the effect of these 
problems on our ability to carry out effective reviews. 

"During our review of the training program on behalf of the Senate Foreign 
Relations Committee, representatives of the Department of Defense and State 
have withheld or delayed the release of MAP reports and records essential to a 
full and complete review and evaluation of this program which is financed by 
considerable appropriated funds. The access-to- records problems experienced by 
our staffs during this review are a continuation of similar problems the GAO has 
encountered over the years in reviewing DOD programs, particularly evaluations 
of military assistance programs. 

"While 'the DOD has taken the position in the past that future planning infor- 
mation is not releasable to GAO because it is subject to change, we do not be- 
lieve that the DOD components should use this position to deny our access to such 
information as the operational status and capabilities of MAP recipient countries' 
forces merely because it is included as a part of future planning information." 

"We believe further that the denial of access to routine reports prepared by 
MAAG personnel in the performance of advisory functions, on the basis that they 
are evaluative in nature, is unreasonable. The type of data and reports withheld 
from us during this review are necessary in our examination of the program as 
well as our review and evaluation of the administration of the program by the 
MAAC's and by other DOD elements. In our opinion, it is essential for us to have 
access to all papers, records, and data which are available to those DOD per- 
sonnel who make the program decisions in order that we can ascertain how their 
decisions were made and whether all available pertinent data was considered in 
reaching the decisions. 



3061 

"The denial of our access to the CINCPAC program evaluation group reports 
also impaired our review of this program. In carrying out its statutory audit 
responsibilities, GAO gives due regard to the effectiveness of the internal audit 
of an agency, such as the MAP audits performed by the CINCPAC activity and 
other DOD groups. In conducting our audits on behalf of the Congress, we make 
use of internal audit reports and other internal evaluations and perform such 
independent tests of the records as we feel to be justified under the circumstances. 

"If we are permitted extensive use of internal audits and other evaluative 
reports, we are able to concentrate a greater part of our efforts in determining 
whether action has been properly taken by responsible officials, on the basis of the 
facts presented in these reports and evaluations, to correct identified program 
weaknesses. This also helps to eliminate duplication and overlapping in audit 
effort, and promotes full utilization of existing audit and investigative data. 

"We believe that this access-to-records problem involves a matter that criti- 
cally affects our future ability to conduct on behalf of the Congress thorough and 
complete reviews of the MAP. In order for GAO to carry out its legal authority 
to make independent reviews of MAP, it must have access to and make appro- 
priate review and analysis of all DOD reports and records which evidence the 
expenditure of appropriated funds. 

"We believe further that these objectives can be achieved if the Secretary of 
Defense will refrain from issuing guidelines which have the effect of limiting 
our reviews and will instead, instruct DOD subordinate commands to take a more 
cooperative, flexible, and realistic approach in the release of data and information 
requested by GAO in future MAP reviews." 

In early 1970, we undertook a review of the U.S. assistance to the Philippine 
Government in support of the Philippine Civic Action Group at the request of 
the chairman. Subcommittee on U.S. Security Agreements and Commitments 
Abroad, Committee on Foreign Relations, U.S. Senate. The Departments of State 
and Defense delayed our work on this assignment to the extent that we had to 
curtail the scope of our review and qualify our report to the chairman. Appen- 
dix II to our report to the chairman (B-168501, dated June 1, 1970) set forth our 
problems as follows : 

"access-to-records difficulties 

"We were unable to complete our work and report on this assignment within a 
reasonable time because of the time-consuming screening process exercised by the 
Departments of State and Defense before making records available for our exami- 
nation. Our work was seriously hampered and delayed by the reluctance of the 
Departments to give us access to the documents, papers, and records which we 
considered pertinent to our review. In general, we were given access to only those 
documents, papers, and records which we were able to specifically identify and 
request, and then we were given access only after time-consuming screening at 
various levels within the Departments. 

"Members of our staff were required to wait for periods of 2 weeks to 2 months 
to look at some documents they had requested and frequently the documents 
proved to be of little value for our purposes. We were also restricted by ground 
rules established unilaterally by the Departments that effectively limited our 
review in the field to the Departments very narrow interpretation of what it 
judged to be the scope of our review. This was perhaps the most restrictive limi- 
tation placed on our work, and it completely frustrated our attempts to review 
assistance to the Philippines that was not funded in the military functions 
appropriations. 

'•Our audit staff members in the field were advised that documents which they 
requested that were releaseable to us under the restrictions of the so-called ground 
rules had to be dispatched to Washington for departmental clearance. By early 
May 1970, only four of 12 documents which were requested by our staff members 
on January 28, 1970, had been released to them in Manila. 

"Our letter to the Secretary of Defense * * * which is similar to a letter that 
we addressed to the Secretary of State, illustrates one of our many attempts to 
resolve our access-to-records problems. The reply from DOD * * * characterizes, 
in our opinion, the attitude of DOD during our review. 

"Although we have been able to obtain sufficient information upon which to 
base this report, we are not certain that we have the full story. In view of the 
restricted access to records, there is the possibility that the agencies may have 
withheld information which is pertinent to our study." 

70-253— 72— pt. S 9 



3062 

Following our review in the Philippines we initiated a study of U.S. assistance 
to the Government of Thailand. In an attempt to avoid the conditions previously 
experienced, the Comptroller General on June 26. 1970. wrote to the Secretaries 
of Defense and State citing the problems experienced in the Philippines review, 
requesting that they eliminate the necessity for the lengthy screening process, 
and citing the scope and authority for our review as follows : 

"* * * the scope of our review will be broad enough to permit our representatives 
to investigate all matters concerning the receipt, disbursement, and application 
of public funds related in any way to our relations with the Government of 
Thailand. Pursuant to the authority of section 313 of the Budget and Accounting 
Act of 1921, 31 U.S.C. 54, representatives of the General Accounting Office will 
be requesting officials in your Department for access to, and when we consider 
necessary, copies of any books, documents, papers, or records in the custody or 
control of your Department which we believe may contain information regarding 
the powers, duties, activities, organization, financial transactions, and methods 
of business related to the scope of the review." 

Unfortunately, we have experienced similar problems in obtaining access to 
documents required for our review of assistance to Thailand. 

In connection with processing our report on the review of the military as- 
sistance training program mentioned earlier, the Special Assistant to the As- 
sistant Secretary of Defense, International Security Affairs, in a letter dated 
September 25, 1970, stated : 

"Similarly, the Department of Defense cannot permit to go unchallenged that 
section of the report concerning complaints that the GAO auditors were hindered 
and delayed in their efforts because the Department of Defense had denied them 
access to 5-year MAP planning data and to inspection and evaluation reports 
known as PEG reports. Apart from the fact that custom, tradition and precedent 
have decreed that information of such internal nature will not be disclosed out- 
side the executive branch in order to preserve the confidentiality of the relation- 
ship of superior and subordinate, an understanding was also reached a number 
of years ago between the General Accounting Office and the Department of 
Defense whereby planning data and inspector type reports would not be provided. 
The Department is, therefore, both surprised and chagrined over the fact that the 
GAO would endeavor to make such an issue over these specific categories, an 
issue which had been resolved years ago." 

A copy of this Department of Defense letter was sent to the chairman of the 
committee by the Department. 

In transmitting our report to the chairman the Comptroller General took note 
of this Department of Defense letter and advised as follows : 

"In regard to the Department's position concerning the access-to-records 
matters discussed in the report, the General Accounting Office has never reached 
such an understanding with the Department of Defense. To the contrary, we 
have always maintained that we are entitled by law to have access to. and the 
right to examine, all records of the Department of Defense and its component 
commands that we consider pertinent to the matter or subject under review. 

"The inspection and evaluation reports referred to in the Department of De- 
fense letter are management reports prepared by a program evaluation group of 
the Unified Command Headquarters. We have always regarded complete access 
to reports of this type as necessary in order for us to carry out the responsibilities 
we have to the Congress." 

The policy of the executive branch, with respect to release of information to 
the Congress, was .set forth by the President in a memorandum to the heads of 
executive departments and agencies, on March 24, 1969, as follows: 

"The policy of this administration is to comply to the fullest extent possible 
with congressional requests for information. While the executive branch has the 
responsibility of withholding certain information the disclosure of which would 
be incompatible with the public interest, this administration will invoke this 
authority only in the most compelling circumstances and after a rigorous inquiry 
into theaetual need for its exercise. For those reasons executive privilege will 
not be used without .specific Presidential approval." 

Although the Departments of State and Defense indicate in their directives 
that it is their policy to provide maximum cooperation and assistance to the 
General Accounting Office, wo have found it quite difficult to obtain the infor- 
mation which we need to conduct our reviews relating to foreign assistance 
activities. 



3063 

In our discussions with departmental officials, they have frequently stated 
that the documents or information heing withheld are not releasable to the GAO 
because of one or more of the following reasons : 

(1) Review, examination, or disclosure would seriously impair relations 
between the United States and other countries, or otherwise prejudice the best 
interest of the United States ; 

(2) Access to documents including information and debates used in formulat- 
ing policy decisions would .seriously hamper a candid exchange of views within 
the agency ; and 

(3) Access to information on future planning would not be appropriate because 
it lias not received the approval of the President or been presented to the Congress. 

Notwithstanding our difficulties in the past we will continue to press for infor- 
mation we think is necessary for us to have in order to carry out our respon- 
sibilities. 

Mr. Chairman, this concludes our prepared statement. Mr. Duff and I will be 
glad to answer questions. 

Commander in Chief Pacific, 
FPO San Francisco, June 19, 1970. 

CINCPAC INSTRUCTION 7. r i00.2C 

From : Commander in Chief Pacific. 

To : Distribution list. 

Subject : Release of information to the U.S. General Accounting Office and to 

foreign governments ; guidance concerning. 
Reference: (a) DOD Military Assistance Manual (DOD MAM), part II, 
chapter W. 
{b) CINCPACINST 7500.1 (series). 

(c) CINCPACINST 5040.2 (series). 

(d) CINCPAC Military Assistance Manual (MAM) , part I, section A. 

1. Purpose. — To provide guidance on the release of information to the U.S. 
General Accounting Office (GAO) and to foreign governments. 

2. Cancellation.— CINCPACINST 7500.2B of 20 May 1969 is hereby canceled. 
■}. General: 

(a) As an instrumentality of the U.S. Congress, the GAO has broad author- 
ity for conducting independent surveys, reviews, audits, and investigations of all 
agencies and functions of the executive branch of Government, including the 
review of all activities relating to the MAP. References (a) and (6) pertain. 

(b) In general, authorized and properly cleared representatives of the GAO 
may and should have access to data and documents pertinent to the subject being 
examined. However, there are certain restrictions on the release of information 
to the GAO. particularly as they relate to the PACOM military assistance program 
( MAP), and these are enumerated in paragraph 4, below. 

(c) Formal refusal to furnish information requested by the GAO may be made 
only by the Secretary of Defense or the Secretary of the military department 
concerned. Accordingly, in instances of GAO requests for information which is 
not releasable, the GAO auditor should be advised that the data are being with- 
held only because of the lack of authority to release, and full particulars should 
be immediately referred to CINCPAC for resolution. 

4- Guidance on release of information to the GAO: 

(a) Internal audit reports of the military department audit organizations and 
associated working papers shall be made available to the GAO representatives 
by the audit agency where such reports and working papers are maintained 
and filed. 

(b) Budgets for any future fiscal year will not be released. 

(c) Reports of military department Inspectors General and criminal investi- 
gation organizations shall not be furnished except upon approval of the appro- 
priate departmental Secretary. 

(d) Reports of non-Department of Defense agencies (including FBI reports) 
shall not be furnished without written consent of the originating agency. 

(e) Contents of military plans will not be disclosed except as authorized by 
the Joint Chiefs of Staff and/or the Secretary of Defense. 

(/) Military assistance plans and programs are preliminary planning docu- 
ments prepared within the executive branch of the Government as a basis for 
decisions by top executive authorities. This status is not altered by their being 
approved in Washington as a basis for further planning actions, up to the point 
where a program has been transmitted to the Congress with a budget request. 



3064 

Therefore, such documents may not be released to the GAO without specific au- 
thorization of the Secretary of Defense. Care should be exercised in the release 
of information contained in CINCPAC military assistance planning reference 
books so that information regarding future planning information is not com- 
promised. In this regard, the GAO may be given access to narratives in the above 
documents (e.g., "Past Accomplishments") which do not contain future planning 
information. Since DOD internal auditors have access to these documents and 
since DOD internal audit reports may be available to the GAO when requested, 
extreme care must be exercised to insure that findings and recommendations on 
MAP operations based upon information obtained in these documents regarding 
future plans are not compromised. GAO requests for future planning infor- 
mation will be handled in accordance with the provisions of paragraph 3c of this 
instruction. 

(.7) Audited activity and CINCPAC comments on DOD Deputy Comptroller 
for Internal Audit (DCIA) audit reports shall be furnished only after the ASD/ 
ISA endorsement to the DCIA report is received. Any release prior to that time 
will be qualified in writing as a tentative management position subject to modi- 
fication or elaboration. 

(h) Reports of CINCPAC evaluations conducted in accordance with reference 
(c), commonly referred to as PEG reports, shall not be furnished. Extracts from 
such reports of pertinent factual data are releasable; however, the remainder 
shall be treated as an internal facet of CINCPAC's management of the MAP 
and shall not be released. Requests by GAO representatives for information con- 
tained in PEG reports which is considered not releasable shall be referred to 
CINCPAC. 

(?) As a general rule, records and reports of a host government held by a 
MAAG which are necessary to the proper conduct of an audit shall be made 
available to GAO auditors, except in cases where the host government has placed 
specific restrictions on their distribution or in exceptional cases concerning sensi- 
tive information which the MAAG Chief considers should not be disclosed to 
the GAO. In the latter case, desires of the host government may be requested 
after consultation with the Ambassador. Requests by GAO auditors for host 
government information or documents not in possession of the MAAG should be 
addressed to the host government only with the concurrence of the Ambassador. 
CINCPAC will be notified in cases where the host government objects to release 
of information to the GAO, so that ASD/ISA may be informed. 

5. Release of MAP information to foreign governments: 

(a) Guidance concerning disclosure of military assistance plans and programs 
to host government authorities is contained in reference {&). 

(h) Chiefs of MAAGs may disclose pertinent details of audit agency reports 
and CINCPAC PEG reports, including the source of the data, to host govern- 
ment authorities when action by those authorities is required to correct dis- 
crepancies or to improve host country armed forces functioning. In this con- 
nection, care should be taken to insure that the information released is kept 
within proper context, U.S. interests are protected, and audit agency personnel 
and CINCPAC PEG representatives are not involved in matters beyond their 
purview. Coordination with appropriate U.S. Embassy officials is expected. 

F. E. Janney, 
Deputy Chief of Staff for Military Assistance, Logistics and Administration. 

Headquarters — U.S. European Command, Directive No. 50-5 

COMPTROLLER 

(Relationships With U.S. General Accounting Office) 

1. Purpose. — To define U.S. General Accounting Office (GAO) relationships 
with USCINCEUR and commanders/chiefs of EEIC, USEUCOM MAAGs/mis- 
sions, and component commands (joint matters only). 

2. References. 

(a) DOD Directive 7650.1, subject: General Accounting Office Comprehensive 
Audits. 

(?>) AR 36-20. subject: U.S. General Accounting Office Audits. 

(c) SECNAVINST 5741.2D, subject: Relations With the General Accounting 
Office. 

(4) AFR 11-8, subject: Air Force Relations With General Accounting Office 
(GAO). 



3065 

(e) USEUCOM Directive 50-10, subject: Processing of Audit Reports and Re- 
ports of Audit Activity. 

3. Policy. 

(a) The GAO, an independent agency of Congress, has broad authority for 
conducting audits and investigations in the executive departments and agencies 
(31 U.S.C. 54 and 31 U.S.C. 67). The purpose of this authority is to enable the 
Comptroller General, as an agent of Congress, to determine how each agency dis- 
charges its financial responsibilities; that is, to insure the proper management of 
fiscal, personnel, and materiel government resources. 

(b) GAO comprehensive audits will be directed only to the nontactical opera- 
tions of the Department of Defense, for the purpose of evaluating the results of 
financial management (paragraph IIA, reference a). It is JCS and USCINCEUR 
policy to cooperate to the fullest possible extent in assisting the GAO to pursue 
its inquiries which are within the responsibilities assigned by Congress. 

This directive supersedes ED 50-5 January 8, 1970. 

4. Release of Information to the GAO. — Authorized representatives of the 
GAO will be given access to, and allowed to examine, such records as are neces- 
sary to permit them to carry out their duties and responsibilities, subject to the 
limitations cited below which require approval of higher headquarters. Oral re- 
quests for information by auditors will normally be honored. However, when 
the nature of the question is such that a written inquiry would lead to a more ade- 
quate response, or for other justifiable reasons, the auditor may be requested 
to state in writing the particular information desired. 

(a) In general, the policies and limitations on release of information cited in 
AR 36-20 are applicable to Headquarters, USEUCOM and the USEUCOM 
MAAG's and missions. Component commands will follow applicable service 
directives (references b through d). Examples of information cited in these 
directives which requires departmental or JCS approval prior to release are : 

(1) Top secret information. 

(2) Documents (other than published manuals and regulations) related to 
tactical operational planning or conduct of military operations, war plans, 
force deployments, force goals, and intelligence collection and analysis. 

(3) Budget program data for future fiscal years that have not yet been 
presented to Congress, including related preliminary planning documents. 

(4) Reports of inspection and investigation. 

(&) In addition, it is USCINCEUR policy that the following information will 
not be released to GAO without prior approval by USCINCEUR or JCS, as 
applicable : 

(1) Any information from USEUCOM — or JCS — originated documents. 

(2) Information relating to pending management decisions, including : 

(a) Opinions, observations, and recommendations which do not rep- 
resent final or official action. 

(&) Documents referred for decision to a commander or from one 
eche'on to a higher echelon, and on which a final decision has not been 
reached, including related working papers and internal memorandums. 

(3) Minutes of meetings, either verbatim or in summary form, that record 
proceedings, discussions, and actions. 

(c) Information, documents, and reports received from other Government 
agencies will not be released to the GAO, except as authorized by the originator. 

(d) Host country documents, reports, and data will not be released to the GAO 
until after the host country has been given an opportunity to interpose objection. 

(e) In certain instances, GAO personnel may request information which is 
otherwise releasable but is contained only in documents falling within one of the 
categories cited above. In such cases, the releasable information necessary to the 
audit may be summarized from the nonreleasable documents and furnished the 
GAO. 

(/) The fact that a document is classified Secret or Confidential is not in itself 
reason to deny release to properly cleared GAO personnel. The Comptroller Gen- 
eral has established a system for insuring the proper safeguarding of classified 
matter, and has adopted DOD standards for granting personnel clearances. 

(g) See appendixes I and II for examples of nonreleasable and releasable 
information. 

5. Requesls regarding release of information: 

(a) Questions involving the releasability of information to GAO should be 
addressed to USCINCEUR, Attention: ECCM-F, or service departments, as 
appropriate. 



3066 

(b) GAO requests for host country information or documents will be made 
to the host government only with the concurrence of the U.S. Ambassador. 

(c) When it is determined that information is not releasable without approval 
bv higher authority. GAO will be advised that the request for such information 
must be submitted' through GAO channels to USCIXCEUR, to JCS, or to DOD/ 
service departments, as appropriate. 

6. Responsibilities: 

(a) GAO European Branch, Frankfurt. By agreement with USCIXCEUR. the 
Director. GAO European Branch, or his representative will advise the Comp- 
troller. Headquarters, USEUCOM, and component command comptrollers of 
proposed GAO visits to USEUCOM activities. Notification of visits will indicate 
the date(s), title, and planned scope of the audit or review. (This procedure will 
be followed by GAO except when advance announcement would defeat the pur- 
pose of the audit.) The GAO European Branch will provide current rosters show- 
ing the security clearances of all GAO auditors in the USEUCOM area. 

i(6) Headquarters, USEUCOM (Comptroller). The Headquarters, USEUCOM 
Comptroller is the designated USCIXCEUR point of contact for the GAO. He will 
maintain necessary liaison with that organization, and will — 

(1) Inform the Headquarters, USEUCOM staff, components, and MAAG's/ 
missions of proposed GAO activities in their areas of responsibility. 

(2) Process USCIXCEUR responses to GAO reviews and reports of audit 
(reference e). 

(3) Assist GAO in scheduling meetings and visits with USEUCOM per- 
sonnel. 

(4) Assist the Headquarters, USEUCOM staff and MAAG's/missions with 
GAO administrative matters ; for example, changing visit dates, obtaining 
additional clarification of the purpose and scope of proposed audits, respond- 
ing to GAO reports of audit, providing guidance regarding release of infor- 
mation to GAO (including guidance to components on .ioint matters). 

(5) Maintain close contact with component command comptroller person- 
nel regarding GAO activities within the commands which would he of inter- 
est to USCIXCEUR. 

(c) Headquarters. USEUCOM/MAAG's/Missions. Headquarters. USEUCOM 
directors/office chiefs and chiefs of MAAG's and missions are authorized to 
receive accredited GAO representatives after initial contact and necessary liai- 
son have been established by GAO with the Headquarters, USEUCOM Comp- 
troller. Advance preparations will be made to facilitate the conduct of audits. This 
includes providing adequate working space and facilities, as well as timely 
assistance in making necessary information and records available. In addition, 
Headquarters, USEUCOM directors/office chiefs and chiefs of MAAG's/missions 
will— 

(1) Insure that personnel involved in briefing or participating in dis- 
cussions with GAO representatives are thoroughly familiar with the policies 
governing release of information to the GAO. 

(2) Inform the Headquarters USEUCOM Comptroller when the timing 
of a scheduled audit will cause major problems (particularly in relations 
with host countries). 

(3) (Chiefs of MAAG's/missions only.) As required, inform the U.S. Em- 
bassay and appropriate host country personnel of the purpose of schedule 
audits and of the statutory responsibility and authority of the GAO. 

(4) (Chiefs of MAAG's/missions only.) Keep USCIXCEUR advised of 
GAO activities within their areas of responsibility as prescribed by ED 50-10 
(reference e). 

(d) Component commands. Component commanders will — 

(1) Keep the Headquarters, USEUCOM Comptroller informed of GAO 
activities within their commands which could be of interest to USCIXCEUR. 

(2) Insure that personnel involved in briefing or participating in dis- 
cussions with GAO representatives are thoroughly familiar with the policies 
governing release of information to the GAO. 

Eor the commander in chief : 
Official : 

A. D. Surles, Jr., 
Lieutenant General, U.S. Army. Chief of Staff . 
H. L. Graybiix, 
Lieutenant Colonel, U.S. Air Force, Adjutant General. 

2 Appendixes : I. Examples of Information Not. Releasable to GAO Without 
Specific Authority. IT. Examples of Information Releasable to GAO. 



3067 

APPENDIX I 

Examples op Information Not Releasable to GAG Without Specific 

Authority 

Listed below are documents and categories of information which may not be 
released to the GAO without approval from higher authority. 
( a ) Recommended changes to force objectives. 

(b) Host, country replies to NATO questionnaires and related MAAG anal- 
yses. 

(c) Information relating essentially to military or international planning 
considerations and pertaining to matters of strategy, such as war plans or memo- 
randums leading to the formulation of such plans. 

<</) The military assistance 5-year plan for a particular country. (For data 
which can be extracted from an MA 5-year plan for release to the GAO, see app. 

II.) 

(e) The quantity and projected delivery of items and services included in a 
specific fiscal year military assistance program prior to the initial justification 
of the program before the Congress. 

(/) Operational status reports concerning tactical effectiveness of host coun- 
try forces. (Factual data, such as personnel strengths and allowances and equip- 
ment inventories and allowances, may be extracted from these reports and fur- 
rushed the GAO in response to a specific request for such data from the GAO.) 
Note : This restriction excludes combat capability ratings assigned by chiefs of 
Air Force sections, MAAG's, for inclosure B, military assistance program report, 
RCS : AF-V12 (paragraph f, app. II) . 

I g ) Reports of the Inspector General, Foreign Assistance, Department of 
-State. 

( /( ) USEUCOM command inspection reports. (Factual data specifically related 
to the area of the GAO audit may be extracted from these reports and furnished 
in response to a specific request for such data from the GAO.) 

( r" ) Documents related to intelligence collection and analysis. 

(;') Host country documents, reports, and data (paragraph 4d and 5b of basic 
ED). 

APPENDIX II 

Examples of Information Releasable to GAO 

Following are examples of documents and categories of information which may 
be released to the GAO. 

( a ) USCINCEUR supplements to the DOD military assistance manuals, sub- 
ject to the provision that no material therein is identified by the releaser with 
NSC documents, meetings, and discussions, and subject to the provision that rec- 
ommended changes to force objectives are not released. 

(ft) A military assistance program for a specific fiscal year once that program 
has been initially justified before the Congress. 

(c) Data extracted from a military assistance 5-year plan which are in support 
of or included in a military assistance program which has been initially justified 
before the Congress. 

(d) Data in response to specific GAO inquiries regarding specified line items 
of MAP equipment or training in the military assistance programs as follows : 

(1) Specfic training requirements in the currently developed MA program, 
as initially justified before the Congress. Also, training requirements in sub- 
sequent fiscal years which are directly associated with line items of MAP 
equipment being delivered from prior approved MA programs. 

(2) Specific equipment in the currently developed MA program, as initially 
justified before the Congress. Also, equipment contained in subsequent fiscal 
years which has a direct relationship to line items of training in prior ap- 
proved programs. Release of data in accordance with these procedures may 
be made with respect to each succeeding fiscal year MA program once the 
MA program for the succeeding fiscal year is initially justified before the 
Congress. 

(<•) Journals of military assistance. 

I/) Inclosures A. B, D, G, and H, of the military assistance program report 
(PCS: AF-V12> and factual data from the narrative portions of this report. 

(//) MAAG unit visit reports, mobile training team reports, and contract tech- 
nical service personnel (CISP) reports, except for those portions of the reports 



3068 

which reflect opinions and recommendations which are (1) preliminary in na- 
ture, (2) not yet reflected in command poilcy, or (3) the release of which would 
interfere with the decisionmaking process. 

(h) DOD internal audit reports and MAAG and USCINCEUR responses 
thereto. 

[Department of State Telegram] 

Joint State-AID-Defense Message 

Department of State, 

March 1, 1911. 
Subject: GAO review of USG assistance to countries for their participation in 
the free world assistance program in Vietnam. 

1. The countries participating or who have participated in the free world as- 
sistance program in Vietnam who are receiving USG military and economic as- 
sistance are Korea, The Republic of the Philippines and Thailand. These three 
countries are hereafter referred to as "participating countries." 

2. Guidance for use in connection with subject GAO review. In responding 
to GAO field investigators requests for information and access to and/or release 
of documents follows : 

A. DOD directive 7656-1 will apply for DOD personnel and CA-5816, dated 
November 17, 1970, and provisions of 4 fam 934 will apply for State and AID 
personnel subject to supplemental guidance below. 

B. Care in determining accessibility and releasability of executive branch 
documents and records must be exercised but, within the limitations prescribed 
herein, field should adopt fully cooperative attitude toward GAO investigation. 

C. GAO representatives, both in Washington and in the field, are authorized 
to consult official financial documents relating to the receipt, disbursement and 
application of public funds for free world forces in Vietnam. This would include 
verification of deliveries of military equipment, supplies and services to the extent 
this can be accomplished without questioning personnel or agencies of the par- 
ticipating governments or GVN. 

D. Any document known to have been given to Pincus and Paul or to Symington 
subcommittee, or GAO, during prior reviews may be shown to GAO without ref- 
erence to Washington and copies may also be given, if requested. State sending 
to embassy Seoul authoritative listing of documents relating to Korea given to 
Pincus and Paul or directly to Symington subcommittee. State has previously 
furnished comparable listing to embassy Bangkok. 

Embassy Manila is informed as to documents released to Pincus and Paul 
or directly to Symington Subcommittee. However, documents previously shown 
to Pincus and Paul but not released to them, Subcommittee, or GAO, should 
be treated under general guidance (2E, 2F, and 2G below. ) 

E. Missions and command should not without specific Washington authority 
allow GAO personnel to consult or otherwise have access to the following: 

(1) Documents relating to war plans, future MASF or U.S. military opera- 
tions budget and planning data. 

(2) Confidential correspondence exchanged between heads of state. 

(3) Presidential memoranda (other than that of FY 1970 AID program of 
January 13, 1970). 

(4) Reports of inspectors general (not including IGA reports on AID economic 
assistance to participating countries) . 

(5) Performance evaluation reports. 

(G) Internal executive branch (other than AID or USOM unless subject 
to (8) below) working papers and memoranda. 

(7) Telegrams, memoranda or other documents (other than AID or USOM 
unless subject to (8) below) revealing sensitive information about the conduct 
of U.S. negotiations with participating countries or GVN. 

(8) Other material which the ambassadors or major military component 
commanders consider may be sensitive and could, if revealed, have a serious 
adverse effect on the conduct of U.S. relations with the participating countries 
or with other countries or might otherwise prejudice the national interests 
of the United States. 

F. If GAO representatives request access to such sensitive material (2E 
above) which in opinion of ambassadors or major military component comman- 
ders should not be released, they shoidd he advised to refer request to State 
or Defense, as appropriate, through GAO, Washington channels for determination 
regarding releasability. 



3069 

G. With exception of documents previously given Pincus and Paul, Syming- 
ton subcommittee or GAO, copies of DOD documents, other than the type 
routinely furnished to the GAO without prior DOD approval. If field representa- 
tives of the GAO request copies of such documents, they should be advised that 
DOD prefers to make decision on release of copies after discussion with GAO 
in Washington. 

H. Believe GAO representatives will have no need to consult participating 
country or GVN officials or agencies for purposes present review and such con- 
tacts could have adverse consequences. State expects to reach understanding in 
Washington that GAO representatives will not approach officials and/or agencies 
of participating countries. If GAO should seek to do so, matter should be 
referred to State. 

I. Responsible officers of all concerned agencies should consult with the 
ambassador or his designated representative regarding the applicability of the 
foregoing guidance to such investigations as the GAO representatives may wish 
to carry out in those organizations. 

3. Two (2) copies of each document requiring Washington decision under (2) 
above should be sent to the appropriate country director, Bureau of East Asian 
and Pacific Affairs, Department of State, or to the deputy director for operations, 
military assistance and sales, OASD (ISA) Department of Defense, as appro- 
priate, unless copies of such documents previously have been provided to Wash- 
ington agencies. Documents submitted to the Department of Defense will be 
forwarded through CINCPAC for his recommendation to DOD on release, except 
that reports of military department inspectors general and performance evalua- 
tion reports (PARAS 2EA and (5) above) will be forwarded via the appropriate 
PACOM component command through established service channels to the ap- 
propriate military department. 

4. Cases referred to Washington for decision should be supported by the 
submitting agency's recommendation as to releasability to GAO. ROGERS. 

The Secretary op Defense, 
Washington, B.C., January 21, 1912. 
Hon. Elmer B. Staats, 
Comptroller General of the United States, 
Washington, D.C. 

Dear Elmer : I have given considerable thought to your letter of October 13, 
1971. expressing your increasing concern with actions taken within the Depart- 
ment of Defense which you say are having the effect of denying GAO access to 
information and documents needed to carry out your responsibilities for review 
of international activities of the Department of Defense, especially military 
assistance activities. 

At the outset, let me assure you that neither the Assistant Secretary of Defense 
(ISA) nor myself condone any actions which could be interpreted as restricting 
your auditors from carrying out their responsibilities in the field of international 
matters or discouraging overseas officials from cooperating with your auditors in 
the performance of their statutory responsibilities. 

There are some in the Department who complain that some GAO auditors be- 
lieve that they are entitled as a matter of absolute right to immediate and ready 
access to the iincensored files of the Department. As I have stated before, and will 
emphasize again, I do not believe that GAO auditors have any such absolute 
right. I think that this is particularly so in the international affairs area which, 
as you know, contains some of the most sensitive files in the Department. We have 
even denied access to some of these sensitive files to congressional committees. 

Papers in these files originate within as well as outside the Department, includ- 
ing the White House, and Department of State. I am sure that you appreciate 
that merely because such papers are in our files we cannot release them to GAO 
without the express approval of the originator. Fortunately, however, it is only 
<>n rare occasions that GAO auditors actually need access to such papers to com- 
plete their audits or reviews. The matter of access to such papers must, I believe, 
continue to be handled on a case-by-case basis. In the future, when the question 
of access to sensitive documents in the international affairs area arises. I have 
asked the Assistant Secretary of Defense (ISA), when he believes that access to 
a particular document should be denied, that he consult with the Assistant Secre- 
tary of Defense (Comptroller) and the General Counsel prior to refusing access. 

I. like you. also am interested in establishing a mutual accommodation within 
which each of us can carrv out our mutual responsibilities. Any such mutual ac- 



3070 

commodation must, of course, be a two-way street. Unconscionable delays on tbe 
part of our people in making otherwise proper documents available to GAO audi- 
tors is. I am sure, most irritating and frustrating to your auditors. On the other 
baud, it is equally irritating and frustrating to our people to have your auditors 
request "complete access" to reports and documents which are precluded by out- 
standing directives and instructions. Incidentally, it is not our intent to limit 
access in tbe field only to documents of a financial nature — other documents, or 
summaries thereof, which are otherwise releasable generally will be made avail- 
able when necessary to complete the audit or review. If certain portions of an 
existing directive or instruction relating to the international affairs area are 
particularly troublesome, possibly a modification which will be mutually satis- 
factory to all concerned can be worked out. 

I assure you that I am most anxious to assist in any way possible in having 
otherwise releasable information and documents in the international affairs area 
made available to your auditors on a timely and expeditious basis by operating 
officials at overseas installations, without reference to major commands or de- 
partmental level. The "otherwise releasable - ' information and documentation is 
pretty well indicated in existing directives and instructions. Under such an ar- 
rangement your auditors would be fully aware, in advance of the fact that cer- 
tain documents and information could not be made available locally. Any basic 
disagreement as to the releasibility of categories of documents must, I think, be 
resoived by my office in consultation with your designated representative. 

Possibly, what might do more to clear the air and set the stage to establish 
better working relationships in the field of international matters is for each of 
us to send a representative to some of the overseas installations with a view to 
creating an atmosphere of mutual cooperation and understanding. Our repre- 
sentatives, after reviewing typical documentation, could help draft clarifying 
guidance for dissemination to the field. Such communication should serve to 
improve significantly the working relationships between GAO and DOD at the 
operating level. 
Sincerely, 

Melvin Laird. 

Mr. Keller. On August 30, 1071. the President invoked Executive 
privilege to withhold information which had been requested by the 
Senate Foreign Eelations Committee relating to the military assistance 
program. The President determined that it would not be in the 
public interest to provide to the Congress the basic planning data on 
military assistance that was requested by the chairman of the Senate 
Foreign Eelations Committee, and he directed the Secretary of State 
and the Secretary of Defense not to make available to the Congress any 
internal working documents which would disclose tentative planning 
data on future years of the military assistance program which are not 
approved exeeuth'e branch positions. 

Subsequent to this action we noted a general increase in the volume 
of documents that operating officials were referring to higher authority 
for approval for release to our auditors. This practice added to the de- 
lays in obtaining access to documents that had hampered our audit 
efforts in the past. Although absolute denial of access to a document 
is quite rare, our reviews have been hampered and delayed by tin 1 
time-consuming processes employed by the various organizational ele- 
ments within and between the executive agencies. These delays occur in 
screening records and in making decisions as to whether such records 
are releasable to GAO. It is not unusual for our staff people to request 
access to a document at an overseas location and to be required to wait 
several weeks while such documents are screened through channels 
from the overseas posts and through the hierarchy of the departments 
involved. 

At this time, Mr. Chairman, I would like to have Mr. Duff crive you 
a 7-eport of a very recent occurrence, which he just told me about this 
morning and which I think illustrates what I am talking about here. 



3071 

Mr. Moorhead. T\ T o would be delighted to hear you, Mr. DutY. 

Mr. Duff. This involves a review which we are now carrying on in 
( Cambodia and if I might just read what was received from them — 

Mr. Moorhead. From what are you reading? Is this your own testi- 
mony or is it another document that you are reading from % 

Mr. Duff. This particular document I am reading from, part of it 
was prepared as a chronology in my office of the problems that we had 
and the cover sheet is the one that was received from the Director 
of our Far East branch when he first brought the problem to our 
attention. This involves the monthly activities report prepared by 
the military requirement delivery team in Cambodia. It contains 
information on problems encountered in the general status of the mili- 
tary assistance program deliveries, an item used by the Cambodian 
Arined Forces. These reports are considered a vital and integral part 
of the internal control system and access to them is, therefore, necessary 
if we are to adequately evaluate the management of the program in con- 
nection with our review of U.S. assistance to Cambodia. 

On February 25. 1072, our audit team in Cambodia requested access 
to these reports. 

On the 2(>th of February, the Military Requirement Delivery Team 
in Cambodia said they could not release this report to us without 
approval of higher authority and they, therefore, advised the com- 
mander in chief of the Pacific of our request and asked for guidance. 

On February 29, CTXCPAC forwarded the request to the Assist- 
ant Secretary of Defense. International Security Affairs, in the Penta- 
gon, stating that he could not release that type of report to us under 
his directives and, therefore, requested guidance from the Pentagon. 

On March 1, the Assistant Secretary of Defense, ISA replied to 
CIXCPAC stating that the report was an internal planning and 
management device not releasable in its entirety. The reply noted 
that the items not otherwise restricted could be released in response 
to the request for specific information. 

On March 7, 1972, the Military Requirement Delivery Team in 
Cambodia verbally discussed the Assistant Secretary's reply with our 
audit team. A compromise solution was reached whereby the delivery 
team would furnish copies of the reports after screening out further 
planning information. A specific verbal request was made by our 
team to obtain the sanitized copy of the report. 

On March 10. 1972, the Military Requirement Delivery Team re- 
quested CIXCPAC's concurrence in providing us the screened copies 
of the reports. 

On March 11, CIXCPAC nonconcurred stating that the reports 
contained considerable information on-a-need-to-know basis, 
CIXCPAC stating the report is principally a management document, it 
gets only limited distribution to subordinate commands, and would 
generate a considerable administrative workload to sanitize it. 
CIXCPAC authorized discussion only, limited to coincide with the 
primary mission of the visiting teams auditing contracting missions. 

On April 5. our audit team attempted to resolve the matter through 
discussions with CIXCPAC personnel. CIXCPAC's position was that 
sanitization would generate too much workload. Our team suggested 
an alternative in that GAO would scan the reports themselves and 
select only those paragraphs or pages which we consider necessary to 



3072 

conduct our review. This alternative was rejected by CINCPAC and 
CINCPAG recommended that any further discussion of access to these 
documents be conducted at the Washington level. 

On April 10, the Director of our Far East branch notified us of 
this problem and the Assistant Director in Washington asked for 
additional information and through our audit team in the Pentagon 
set up a meeting with DOD people to discuss this problem. This meet- 
ing was finally arranged on April 20, 1972. The GAO assistant director 
and audit manager met with the DOD representative. However, this 
representative was not in any position to make any decisions on the 
matter. During this meeting he attempted to contact several people 
who were in such a position but was not able to reach them. 

On April 25 our representative in the Pentagon inquired as to the 
status of our request. He was informed that it was expected that the 
Pentagon would cable CINCPAC the next day to inform the military 
requirement delivery team in Cambodia to release the sanitized copies 
of the reports to our team in Cambodia. 

On April 27 the cable referred to above was sent to CINCPAC. 

On May 10 we queried our Director in the Far East and he advised 
us that the team in Cambodia had not received access to the reports. 

Last night we contacted our Director in the Far East and he told us 
that he had received word from our team in Cambodia on Friday that 
the reports would be released to us yesterday. As of now we are not 
sure whether they have received them. 

Mr. Moorhead. Could you repeat that last. What is the present status 
of this? 

Mr. Duff. The present status of it, as we talked to our Director 
last evening, was that he had received word on Friday from our audit 
team in Cambodia that they had been told that the report would be 
released to them yesterday. 

Mr. Moorhbad. Is that the complete report or was it screened and 
sanitized? 

Mr. Duff. I imagine that would be a sanitized version of the report 
screening out what is considered future planning information. 

Mr. Keller. I thought this was a good example to bring to the sub- 
committee's attention. Whether it is sanitized or whether it is a com- 
plete report, almost 3 months were required to get whatever we are 
going to get. Most of the time we can work our men around such 
problems so they are not just sitting on their hands while waiting for 
a document to be furnished, but in other cases if we did not pull the 
men off. we would be in a ridiculous situation of having several staff 
people sitting around at some isolated location waiting for a consid- 
erable length of time while the department makes up its mind whether 
it is going to give us the document or not. As I mentioned earlier, it 
is delaying tactics which hurt probably more than the absolute refusals. 

Mr. Moorhead. It seems to me that the case that you have given us 
shows two horrible examples. One is the delay and then second is this 
screening and sanitizing of documents. I don't think that an auditor 
can come back and report to GAO, to the Congress if they have only 
seen that which is left after the screening process has taken place. 

Mr. Keller. You are correct, Mr. "Chairman. You never know 
whether you have the complete picture because you don't know what 
ma v have been taken out of the file. 



3073 

Mr. Moorhead. I will let you go back to your statement in a minute. 
But it does seem so important as a case ; on page 2 of your testimony, 
in item 2, you said it is necessary to have recommendations of the per- 
sons responsible for the program and yet it sounds to me as though 
these are the very things that were screened out of the Cambodia Mili- 
tary Requirement Delivery Team's monthly report. Would that be your 
understanding, Mr. Duff ? 
Mr. Duff. Yes. 
Mr. Mooriiead. Or Mr. Keller ? 

Mr. Duff. This is our understanding of what they intended to 
screen out. 

Mr. Keller. I think we would have to reserve final judgment on it 
until we see what actual papers we are getting. 

Mr. Mooriiead. I want to give Mr. Cornish 

Mr. Cornish. Thank you, Mr. Chairman. I think it is very important 
for the record the actual time lag between the original request, and if 
we are to assume that the documents were provided in the sanitized 
form yesterday, just how long a time period would that cover? 

Mr. Duff. The initial request by the team was made on February 
25 

Mr. Cornish. Of this year ? 

Mr. Duff. Of this year. 

Mr. Cornish. Did that incident or request take place after the famous 
Cambodian lost battalion incident? 

Mr. Duff. I don't know. 

Mr. Stovall. I don't know. 

Mr. Cornish. Do you know what incident I am referring to, or do 
you 

Mr. Stovall. No. 

Mr. Duff. No ; I do not. 

Mr. Cornish. There was a point when the Cambodians were under 
heavy attack and they decided they ought to call some units into action 
and they found out that the units did not exist, they existed only on 
paper, but apparently we were paying, helping to pay the cost of those 
soldiers and probably providing the equipment for those so-called lost 
battalions. 

Do you think that this incident would have anything to do with 
the refusal to provide the information which you requested ? 

Mr. Duff. I have no way of knowing that, Mr. Cornish. 

Mr. Cornish. Do you know if any study was made by the General 
Accounting Office of the U.S. Military Aid provided to the so-called 
lost battalions in Cambodia ? 

Mr. Duff. We are making a review of the entire assistance program 
to Cambodia and I would assume if this is part of it, it would have 
been included. 

Mr. Cornish. I would hope so, Mr. Duff. 

Mr. Duff. I do, too. 

Mr. Cornish. If it isn't I hope you will include it in the record. 

Mr. Keller. We will check that out and let you know. 

Would you like me to proceed with my statement ? 

Mr. Moorhead. I would ask you to keep the subcommittee informed 
of the progress of this Cambodian imbroglio. You may proceed. 



3074 

Mr. Keller. The increasing concern of the Comptroller General, 
especially with actions within the Department of Defense that were 
having the effect of denying GAO access to information and docu- 
ments needed to carry out our responsibilities for review of interna- 
tional activities of the Department of Defense, in particular military 
assistance activities, prompted him to write to the Secretary of De- 
fense on October 13, 1971. He cited examples of our access problems 
and pointed out spccilic DOD instructions and directives which, we 
believed, had created an atmosphere that was discouraging overseas 
agency officials from cooperating with GAO personnel. In reaching 
for a solution to this complex problem, the Comptroller General sum- 
marized his position to the Secretary of Defense as follows : 

I am most interested, as I am sure you are. in establishing a mutual accommo- 
dation within which we can carry out our respective responsibilities, with due 
regard to the sensitivities of the matters under review. 

I believe you can appreciate the depth of my concern at what appears to be 
an increasing effort within the Department of Defense to restrict the General 
Accounting Office's capability to carry out its responsibilities to the Congress 
in the field of international matters. 

To clear the air and set the stage for joint efforts to establish better working 
relationships, I believe that a personal expression of your views communicated 
to your representatives in Washington and overseas would be extremely helpful. 
We would then be glad to work with the Assistant Secretary of Defense 
(Comptroller), or others that you designate, in the interest of accomplishing 
mutually acceptable working arrangements. 

On January 27, 1972, the Secretary of Defense replied, stating: 

At the outset, let me assure you that neither the Assistant Secretary of De- 
fense (ISA) nor myself condone any actions which could be interpreted as re- 
stricting your auditors from carrying out their responsibilities in the field of 
international matters or discouraging overseas officials from cooperating with 
your auditors in the performance of their statutory responsibilities. 

He also indicated a need and intent to continue to screen the files 
of the Department before making them available for our review and 
stated : 

Papers in these files originate within as well as outside the Department, in- 
cluding The White House, and Department of State. I am sure that you appre- 
ciate that merely because such papers are in our files we cannot release them to 
GAO without the express approval of the originator. Fortunately, however, it is 
only on rare occasions that GAO auditors actually need access to such papers to 
complete their audits or reviews. The matter of access to such papers must, I 
believe, continue to be handled on a case-by-case basis. In the future, when the 
question of access to sensitive documents in the international affairs arises, I 
have asked the Assistant Secretary of Defense (ISA), when he believes that 
access to a particular document should be denied, that he consult with the Assist- 
ant Secretary of Defense (Comptroller) and the general counsel prior to refusing 
access. 

The Secretary also suggested that to clear the air and set the stage 
to establish better working relationships that DOD and GAO send 
representatives to some overseas locations with a view to creating an 
atmosphere of mutual cooperation and understanding. 

Mr. Chairman, I have copies of this correspondence with me, and. 
with your concurrence, I will submit them for the record at this point. 

Mr. Mookiiead. Without objection copies of the correspondence will 
be made part of the record. 

(See pp. 3058-3059, 30G9-3070.) 



3075 

Mr. Keller. I also would like to add here that there were several 
meetings between Secretary Laird and the Comptroller General on 
this request for access to DOD records. 

These meetings took place between the dates of the two letters. 

Since the exchange of letters we have been meeting with Defense 
officials in an attempt to establish mutual working arrangements 
within which we can carry out our responsibilities. In addition, repre- 
sentatives of our office and of the Department of Defense will jointly 
visit overseas commands very shortly as an additional step toward 
this goal. 

As your subcommittee is well aware, on March 15, 1072, the Presi- 
dent again invoked executive privilege and in his memorandum to the 
Secretary of State and the Director, U.S. Information Agency, he 
directed* them not to make available to the Congress any internal 
working documents concerning the foreign assistance program or 
international information activities, which would disclose tentative 
planning data— such as is found in the Country Program Memoranda 
and the Country Field Submissions — and which are not approved 
positions. 

Since, then we have experienced some tightening up on our access 
to documents. For example, the Agency for International Develop- 
ment on March 23, 1972, instructed its operating personnel as follows: 

2. In order to carry out the President's directive, AID Country Field Submis- 
sions should not be disclosed to representatives of the Congress or the General 
Accounting Office. Likewise, disclosure should not be made of any other docu- 
ment from an AID Assistant Administrator, AID Office Head, or AID Mission 
Director to higher authority containing recommendations or planning data not 
approved by the executive branch concerning overall future budget levels for 
any fiscal year for any category of assistance (e.g., Development Loans, Technical 
Assistance. Supporting Assistance, or Public Law 480) for any country. 

3. In lieu of the disclosure of such documents, the President has directed that 
Congress be provided with "all information relating to the foreign assistance 
program and international information activities" not inconsistent with his direc- 
tive. Ordinarily, the substantive factual information contained in these docu- 
ments should be disclosed through means of oral briefings, testimony, special 
written presentations and such other methods of furnishing information as may 
be appropriate in the circumstance. 

4. The General Counsel should be advised of any Congressional or GAO re- 
quests for any document described in paragraph 2 above or for files or records 
containing such a document. The General Counsel should also be advised of 
requests for other documents which raise executive privilege questions, whether 
under the rationale of the President's March 15 directive or otherwise, and a 
decision should be obtained from the General Counsel concerning the availability 
of the document for disclosure before the document is disclosed. 

On May 8, 1972, the Under Secretary of State issued a memorandum 
to all Agency Heads, Assistant Secretaries, and Office Heads on the 
subject of executive privilege. This memorandum cites the Presiden- 
tial directive of March 15, 1972, and contains instructions similar to 
those put out by AID: however, it goes a bit further in broadening 
the Held of applicability by stating: 

It will be noted that the President's directive is not strictly limited to coun- 
try program memorandums and country field submissions, but applies also to 
other, similar internal working documents in the foreign assistance and interna- 
tional information fields which would disclose tentative planning data and 
which are not approved positions. Undoubtedly, specific questions will arise in 
the future as to whether or not the President's directive applies to particular 
congressional requests for disclosure. Such questions should be resolved in con- 
sultation with the Office of the Legal Adviser. 



3076 

There is evidence that the executive agencies may try to satisfy 
GAO's need for access to records by providing the required informa- 
tion my means other than direct access to the basic documents, espe- 
cially in cases where such documents are considered to be internal 
working documents. This would not be acceptable unless we are able to 
satisfy ourselves that the data provided to us is an accurate presenta- 
tion of the substantive information contained in the basic documents. 

In summary, our access to the records and documents or other ma- 
terials we need to carry out our responsibilities for reviewing programs 
relating to international activities has been increasingly difficult. It is 
a matter of degree, but it has seriously interferred with the perform- 
ance of our responsibilities. The most serious interference is in the 
restraints which have been placed upon agency officials overseas and 
which require them more and more to refer to Washington for clear- 
ance before making documents available to our staffs. Although these 
are not termed refusals, they come close because of the interminable 
delays that result from having to refer routine matters through chan- 
nels to Washington. 

In addition to the unnecessary cost and waste of time this involves, 
there is the increased risk of our making reports without being aware 
of significant information and the increased risk of our drawing con- 
clusions based on only partial information. 

We are seriously concerned with the increasing restrictions that 
have been imposed on overseas officials in particular, that take away 
a large measure of their discretion for dealing with GAO personnel, 
and we have conveyed this as indicated earlier to the Department of 
Defense and Department of State. 

INTERNATIONAL LENDING INSTITUTIONS 

Beginning in the fall of 1970, we, undertook to study U.S. participa- 
tion in international lending institutions — the World Bank, Interna- 
tional Development Association, Inter- American Development Bank, 
and Asian Development Bank. During our initial survey and in our 
later reviews relating to specific institutions, we encountered difficul- 
ties in obtaining information from the Treasury Department. 

We experienced long delays in obtaining certain information. For 
example," access to monthly operations reports and to loan status re- 
ports for one of the institutions that we requested in December 1070 
was not granted until August 1971 and then only after repeated re- 
quests. 

We were refused access to several categories of documents by Treas- 
ury Department officials. These included the recorded minutes of the 
meetings of the institutions' board of directors periodic progress re- 
ports on the status of projects being financed by the institutions, and a 
consultant's report on management practices of one of the institutions. 
Also, although Treasury officials advised us that they have refused 
access only to internal documents which they received in confidence 
from the institutions, we were refused access to certain documents 
which, as far as we could determine, were not documents furnished 
by the institutions but rather were documents prepared by U.S. offi- 
cials for use by other U.S. officials. 

Inasmuch as we have not examined the documents discussed above, 
it is difficult to say with any confidence what effect our not having 



3077 

examined them may have had on our review. However, it seems that 
the documents in question form a significant part of the record on 
which U.S. management decisions regarding the institutions' opera- 
tions were based. It is our view, therefore, that the documents should 
have been made available for our examination. 

INTERNAL REVENUE SERVICE 

The Internal Revenue Service is a problem of long standing, Mr. 
Chairman. GAO's review efforts at the Internal Revenue Service have 
been materially hampered, and in some cases terminated, because of the 
continued refusal by IRS to grant GAO access to records necessary 
to permit it to make an effective review of IRS operations and 
activities. 

Without access to necessary records, GAO cannot effectively evaluate 
the IRS administration of operations involving billions of dollars of 
annual gross revenue collections (about $192 billion in fiscal year 1971) 
and mifiions of dollars in appropriated funds (about $978 million in 
fiscal year 1971). Such an evaluation, we feel, would greatly assist 
the Congress in its review of IRS budget requests and in its appraisal 
of IRS operations and activities. Without such access, the manage- 
ment of this very important and very large agency will not be subject 
to any meaningful independent audit. 

GAO has taken every opportunity to impress upon IRS officials that 
it is not interested in the identity of individual taxpayers and does 
not seek to superimpose its judgment upon that of IRS in individual 
tax cases ; rather, GAO is interested in examining into individual tax 
transactions only for the purpose of, and in the number necessary to 
serve as a reasonable basis for, evaluating the effectiveness, efficiency, 
and economy of selected IRS operations and activities. GAO has, in 
general, directed its efforts toward those areas where it believed that 
improvements in current operations would bring about better IRS 
administration of programs, activities, and resources. 

It is the position of IRS that no matter involving the administration 
of the internal revenue laws can be officially before GAO and there- 
fore we have no audit responsibility. The Commissioner of IRS, in a 
letter to the Comptroller General dated June 6, 1968, stated : 

"* * * I must note that the [Chief Counsel, IRS] opinion holds that the 
Commissioner of Internal Revenue is barred by section 6406 and 8022 of the 
Internal Revenue Code from allowing any of your representatives to review any 
documents that pertain to the administration of the Internal Revenue Laws. Thus. 
Federal tax returns and related records can be made available to you only where 
the matter officially before GAO does not involve administration of those laws. 

Under the provisions of 26 U.S.C. 6103, tax returns are open to 
inspection only on order of the President and under rules and regula- 
tions prescribed by the Secretary of the Treasury or his delegate and 
approved by the President. Regulations appearing in 26 CFR 
301.6103 (a) -100-07 grant several Government agencies specific right 
to access to certain tax returns. Our Office is not included among those 
agencies. The regulation applicable to our Office, 26 CFR 301.6103 
(a)-l(b)(f), provides that the inspection of a return in connection 
with some matter officially before the head of an establishment of the 
Federal Government may be permitted at the discretion of the Secre- 

76-253— 72— pt. 8 10 



3078 

tary or Commissioner upon written application of the head of the 
establishment. 

IRS has permitted Federal agencies, States, individuals, contrac- 
tors, and others to have access to tax returns and records. GAO has 
been given access to individual tax returns only when the return is 
needed in connection with another matter in which GAO is involved 
or when we have made reviews at the request of the Joint Committee 
on Internal Revenue Taxation. Otherwise we have been denied rec- 
ords requested for reviews of IRS operations. The reviews of IRS 
conducted at the request of the Joint Committee have been made pur- 
suant to an arrangement whereby GAO and the Joint Committee 
agreed on certain priority matters involving the administration of 
the internal revenue laws/Under this arrangement we, in effect, make 
reviews for the Joint Committee, and we have had the complete co- 
operation of the Service in these reviews. 

FEDERAL DEPOSIT INSURANCE CORPORATION 

The long and involved history of controversy between GAO and 
the Federal Deposit Insurance" Corporation over GAO's right to 
access to certain of the Corporation's records appears in the published 
hearings of the House Committee on Banking and Currency of May 6 
and 7, 1968. Those hearings resulted in the introduction of H.R. 
16064, 90th Congress, a bill to amend the Federal Deposit Insurance 
Act with respect to the scope of audit of FDIC by GAO. 

Essentially what is involved in this dispute is that although our 
Office is required by section 17 of the Federal Deposit Insurance Act 
(12 U.S.C. 1827) to conduct annual audits of the Corporation, we have 
been unable to fully discharge our responsibilities because FDIC has 
not permitted us unrestricted access to examination reports, files and 
other records relative to the banks which it insures. 

Essentially we are denied the records of the Examination Division 
of FDIC. which, in terms of personnel and budget, is roughly 75 
percent of the operation of FDIC. 

It is the position of the Corporation that our right of access to its 
records is limited to those administrative or housekeeping records 
pertaining to its financial transactions. It is GAO's position that, be- 
cause the financial condition of the Corporation is inseparably linked 
with the manner in which it supervised the banks which it insures, 
we cannot report to the Congress on the financial condition of the 
Corporation without evaluating the significance of its contingent in- 
surance indemnity obligation for the banks. 

At the time section 17 was being considered by the Congress, it de- 
veloped that, although GAO and FDIC had agreed on the language 
included therein, I might add this was back in 1950, divergent views 
were held bv GAO and FDIC as to its meaning. Each made its position 
known to the House Committee on Banking and Currency, but the 
matter was not resolved. This difference of opinion still exists with 
both the Corporation and GAO feeling that the present law supports 
their respective positions. Repeated efforts to resolve the matter ad- 
ministratively have failed, and, for this reason, the Comptroller Gen- 
eral in his testimony of March 6, 1968. before the House Banking and 
Currency Committee, recommended that the Federal Deposit Insur- 



3079 

ance Act be amended to specifically provide for an unrestricted access 
to the examination reports and related records pertaining to all in- 
sured banks. There has been no action by the Congress in this regard. 

EMERGENCY LOAN* GUARANTEE BOARD 

Quite recently, in fact last year, as the subcommittee will recall, the 
Congress passed the Emergency Loan Guarantee Act. That act set up 
the Emergency Loan Guarantee Board and certain guarantees have 
been made to lenders against loss of principal or interest on loans to 
Lockheed Corporation. It is specifically spelled out in the act that we 
shall audit any borrower or applicant under the act. We have also taken 
the position we also have authority and responsibility to audit the ac- 
tivities and the actions taken by the Emergency Loan Guarantee 
Board itself. 

The Board has taken the position — through its Chairman, the Sec- 
retary of the Treasury — that it was not the intent of Congress in es- 
tablishing the Board to grant GAO authority to review Board 
activities. 

The Board was established to make guarantees or to make commit- 
ments to guarantee lenders against loss of principal or interest on 
loans to major business enterprises whose failures would seriously and 
adversely affect the economy or employment of the Nation or a region 
thereof. 

GAO believes that it has the responsibility and authority to review 
the Board's activities including decisions of the Board in approving, 
executing, and administering any loan guaranteed by the Board. The 
Board's position, as indicated, is that there is nothing in the Emergency 
Loan Guarantee Act or its legislative history which would provide for 
a GAO review of all Board activities and that the Congress might need 
to pass additional legislation to make it clear that GAO has this au- 
thority. The main thrust of the Board's position is that the congres- 
sional* review of loan guarantee matters is carefully spelled out in the 
guarantee act ; GAO is directed to audit the borrower and to report it? 
findings to the Board and to the Congress ; and the Board is directed 
to make a "full report" of its operations to the Congress. It is our posi- 
tion that, as an agency of Government, the Board is clearly subject 
to audit examination by GAO and that the records of the Board are 
required to be made available to GAO under its basic authorities. Those 
authorities are section 312 of the Budget and Accounting Act, 1921 
(31 U.S.C. 53) ; section 206 of the Legislative Reorganizatiton Act of 
1916 (31 U.S.C. 60) ; subsections 117 (a) and (b) of the Accounting 
and Auditing Act of 1950 (31 U.S.C. 67 (a), (b) ; and section 204 
of the Legislative Reorganization Act of 1970 (81 Stat. 1110). 

We. believe that we have a responsibility for auditing the activities 
of the Board and we have the right to examine any records of the 
Board that the Board used in reaching its decisions. W T e think these 
acts quite clearly state our authority and it was not necessary for Con- 
gress to spell out in the Emergency Loan Guarantee Act that the GAO 
would have an audit authority over the Board. 

There are new agencies created from time to time by the Con- 
gress. As lonir as they are Government agencies it is not necessary and 
quite unusuaf f or Congress to spell out in the authorizing act that such 
agency shall be subject to audit by the General Accounting Office. 



3080 

A good example is the Department of Transportation which was 
established a few years ago. The same is true with NASA and with 
AEC. So, we just do not follow the Board's rationale for its position. 
But so far we have an impasse. 

SUMMARY OF GAO POSITION 

To summarize, Mr. Chairman, the position of GAO is that full 
access to records, information, and documents pertaining to the sub- 
ject matter of an audit or review is necessary in order that GAO 
can fully carry out its duties and responsibilities. The intent of the 
various laws assigning authority and responsibility to the GAO is 
clear on this point. The rights of generally unrestricted access to 
needed records is based not only on laws enacted by the Congress, but 
is inherent in the nature of the duties and responsibilities of the 
Comptroller General. 

The withholding of information and documents from GAO on the 
basis that such information and documents are internal working docu- 
ments, or that they disclose tentative planning data, has seriously im- 
paired our capability to effectively review and evaluate those programs 
or activities described in this statement. 

The greatest disruptive element, however, is from the delaying 
tactics at the various levels — both in Washington and overseas — and 
in particular the restraints placed by the Department of Defense and 
the Department of State, which have restricted the exercise of normal 
judgment by operating officials of those Departments in requiring 
what should be routine individual requests to go through channels 
for consideration on a document-by-document basis. 

We expect to continue a firm effort to obtain working arrangements 
at the various levels which will permit us to fully carry out our re- 
sponsibilities, at the same time we are not going to yield to unreason- 
able delavs or outright refusals. 

Mr. Moorhead. Mr. Keller, it seems to me that your testimony 
which you have given very low key is desperately important. The 
Congress expects the GAO to audit, and using that in the broadest 
term, including the operations, not just financial transactions, of the 
various departments and agencies, but as you have said in your testi- 
mony, you have to have available the recommendations, internal work- 
ing papers, to do a proper job. I personally would not consider it an 
audit, as I think of the term "audit," if you can only look at screened 
documents. 

You have mentioned certain agencies, State, Defense, and Treasury. 
Presumably I take it from this that there is not such withholding by 
other departments and agencies. Do I draw the correct inference ? 

Mr. Keller. That is correct. We have many agencies that have no 
hesitation in giving us access to practically any records in the agency. 
Others are troublesome. 

Now I think it is only fair to exclude perhaps the Federal Deposit 
Insurance Corporation, and perhaps the Internal Revenue Service. 
We don't agree with their legal position but they are making a legal 
argument as to our audit authority as distinguished from our right to 
look at certain internal documents. At the same token I don't place 
the Emergency Loan Guarantee Board in that category because I fail 
to see the Board's argument in this case. 



3081 



Mr. Moorhead. What is the clout that you have over those depart- 
ments that are cooperating with you; how can you force them to give 
you documents? 

Mr. Keller. Those not cooperating? 

Mr. Moorhead. Those that are cooperating. What weapon do you 



use 



Mr. Keller. Really no weapon at all. I think they adopt a policy 
that they are not going to withhold anything from GAO and they 
have been making their records available. Take, for example, the 
Atomic Energy Commission. We have had very fine relations with 
that agencv and I don't recall a case where we have had any problem 
on access to information. Certainly that is a very sensitive type agency. 
Mr. Moorhead. That is interesting. 

Mr. Keller. I think it is a philosophy of management. Of course, 
a great deal of our problem is centered in the international area. That 
may or may not explain it, but at least it brings into question what 
seems to be one of the sensitive areas as far as DOD and the State 
Department are concerned, that is, our dealings with foreign govern- 
ments. 

I should also point out that in other State and DOD programs, m 
the contracting area and in the weapons systems area we have had very 
good cooperation in obtaining information, but when we get into for- 
eign aid, military assistance, international security affairs, then we 
have problems. 

Mr. Moorhead. It is interesting that you mention the Atomic Energy 
Commission. In another phase of our hearings on access of the public 
to information, the AEC has compiled a good record, and I think it 
is consistent that they have granted GAO unrestricted access. 

Mr. Keller. They have had that policy ever since I can recall. I 
don't remember any problem over the years with the Atomic Energy 
Commission, and I am using AEC only as an example. They are not 
the only ones. In most of the departments we do not have any real 
problems. Occasionally some problem will arise. If it can't be solved 
at the lower level, either Mr. Staats or I will get in touch with our 
counterparts in the department and we are usually able to work it out. 

Mr. Moorhead. In the case of the emergency loan guarantee legisla- 
tion, it would seem probable and necessary for the Congress to grant 
GAO access to a private borrower, which you would otherwise not 
have. But the Congress intended, insofar as a Government agency is 
concerned, that the basic statutes— the Budget and Accounting Act, 
Legislative Reorganization Act, et cetera, would cover so far as Gov- 
ernment agencies are concerned. 

Mr. Keller. That is our position, Mr. Chairman. Also, as you will 
recall, I am sure, the law passed by Congress requires certain deter- 
minations and findings to be made by the Board before a guarantee 
can be made. 

I think that Congress wants GAO to make sure that the Board, 
which is another Government agency, is carrying out the require- 
ments laid out for it by Congress. 

Mr. Moorhead. That certainly would be my construction of the law. 

I have some further questions, Mr. Keller.'but at this point I would 
1 i ke to yield to Mr. Erlenborn. 

Mr. Erlenborn. Thank you, Mr. Chairman. 



3082 

I wonder, Mr. Keller, could you cite for us the basic law that gives 
the GAO the right to access ? 

Mr. Keller. Yes, sir; the basic law is in section 313 of the Budget 
and Accounting Act of 1921 which reads : 

All departments and establishments shall furnish to the Comptroller General 
snch information regarding the powers, duties, activities, organization, finan- 
cial transactions, and methods of business of their respective offices as he may 
from time to time require of them ; and the Comptroller General or any of bis 
assistants or employees, when duly authorized by him, shall, for the purpose 
of securing such information, have access to and the right to examine any 
books, documents, papers, or records of any such department or establishment. 
The authority contained in this section shall not lie applicable to expenditures 
made under the provisions of section 291 of the Revised Statutes. 

As an explanation, section 291 of the Revised Statutes relates solely 
to the fund which is administered by the Secretary of State which is 
used for emergencies in the diplomatic and consular services. Expendi- 
tures may be made out of that fund on certification by the Secretary 
of State. 

Also, the Congress has from time to time authorized certain other 
expenditures to be made by some departments and agencies upon cer- 
tification of the head of the agency. Now we have no authority to go 
behind the certifications. There are certain confidential funds in a 
number of the departments and we certainly make no attempt to go 
behind those certifications. 

Mr. Erlenborn. Those confidential funds may be for the use of 
another agency ? 

Mr. Keller. I assume so ; yes. 

Mr. Erlenborx. This language seems to be quite clear. How have 
agencies put interpretation on this that apparently gives them the 
authority to deny access ? 

I know this says, "shall have access to. the right to examine any 
books, documents, papers, or records of any such department or 
establishment.'' 

Now, right offhand I suppose they might say if they had somebody 
else's documents in their possession it wouldn't be covered by this but 
other than that it seems to be all inclusive. 

Mr. Keller. There are arguments made that clearance must be ob- 
tained from the other agency. However, in many cases they are in 
effect, claiming executive privilege, without really saying so. Some will 
argue a right to withhold by virtue of the separation of powers under 
the Constitution which takes precedence over the statutory law. Never- 
theless, I want to make clear I am not buying this argument, I am 
only trying to explain some of the arguments I have heard. 

Mr. Erlenbokn". Do they verbalize that rationale or is this something 
you think is in their thinking but they are not expressing it? 

Mr. Keller. I have heard it argued that way but they won't put it 
down on paper precisely that way. I think that is what really happens 
when a department issues an instruction that says don't give GAO or 
th& Congress access to certain types of information before it is sub- 
mitted to the assistant secretary or the head of the department for a 
decision as to whether it will be made available or not — a part of the 
process of deciding whether executive privilege will be invoked. 

I can't really vouch for the internal workings of the department, but 
I think these decisions are probably based on a statement of executive 



3083 

privilege made by the President in connection with an earlier case or, 
if not, they may get a specific approval to withhold in a particular 
case. 

Mr. Erlenbornt. Could you tell me as far as the Department of State 
is concerned and in the example you crave about the planning for future 
aid to countries receiving aid. why is it necessary for you in an audit 
capacity to know the plans for the future? 

Is this to see whether it is planned to repeat mistakes ? 

Mr. Stovall. There is a very extensive intermix of elements. The 
March 13 statement of the President to the Secretary, for example, if 
I might just read from that, "I, therefore, direct you not make avail- 
able to the Congress any internal working documents," but then he 
goes to say. "concerning the foreign assistance program or interna- 
tional information activities which would disclose tentative planning 
data." 

Now, if there were a clear line of delineation between future plan- 
ning and present documentation and management many of our prob- 
lems I think would vanish. Those things really aren't separable in 
many cases and we find also that in the field there is a confusion in 
relation to whether the President's instructions and the departmental 
instruction is centered on not making available to GAO internal work- 
ing documents without closely relating them to future planning data. 
This we have found is an increasing problem in the field, that they 
are not to make internal working documents available because fre- 
quently the internal working documents may deal with the current 
situation but might reach forward also in terms of a tentative plan for 
next year. So there is a great deal of difficulty in sorting these things 
out. 

Earlier, several years ago, in our discussions with the agencies, the 
term "internal working documents" was seldom used. There were at 
that time concerns about not making available to us inspection reports, 
for example, that dealt with sensitive personnel relationships and those 
things. During this recent period such as Mr. Keller has discussed 
here, however, the negative interpretation of these broad statements, 
some of them ambivalent, has spread to the extent that people are 
reading these in the field as pretty much precluding them from being 
able to decide whether to let GAO see an internal working document 
and understandably you can make that definition broad enough to 
include just about everything in an office. There aren't many things 
in an office that aren't internal working documents. 

Mr. Erlenborx. If I understand your answer correctly, you are 
saying you really are not seeking access to future planning and that 
would not be necessary, the only problem is that planning is inter- 
mingled with other information which you deem to be necessary. Is 
that correct? 

Mr. Keller. We would want to reserve an opinion on that in rela- 
tion to each specific situation but by and large we are concerned with 
the present programs. In some cases they are so interrelated though 
that we would have a need for both types of information. Also, we 
could have such need where we are carrying out a request of a con- 
gressional committee for a particular study, which could get into fu- 
ture programs, depending on what the committee asked us to do. 



3084 

Mr. Erlexborx. Every right to be available must have some means 
of enforcement — you have here an expressed right in section 313, the 
right to access. 

Is there anything in the act that gives you any method of enforce- 
ment of that right ? 

Mr. Keller. No, sir; we have no method of enforcement. Our best 
method of enforcement is when Congress helps us. There is in the 
Foreign Assistance Act a provision which requires a cutoff of funds 
if information isn't furnished to a congressional committee or to the 
GAO within 35 days unless a certification is made by the President. 

We have used that right sparingly because we try to get the informa- 
tion some other way. It is not a difficult procedure but it can cause 
quite a bit of repercussion. 

Mr. Erlexborx. Hard feelings ? 

Mr. Keller. I am not worried about the hard feelings but I think, 
to be perfectly blunt about it, that every time the President makes a 
claim of executive privilege the agencies read the statement about 20 
times and then push it just as far as they can. And if there is some way 
short of doing it that way I favor it. 

Mr. Erlexborx. Do you have any suggestions for any enforcement 
authority ? 

Mr. Keller. There was legislation considered in the Senate last year. 
I don't believe it was reported out of the committee. It would require 
a cutoff of funds unless the President himself, in writing, directed 
that the information not be furnished. That would be across the board. 

Of course, that still brings in the problem of executive privilege. I 
think there is a real question as to whether Congress by a statute wants 
to recognize executive privilege. I don't take any position on that but I 
think that type of legislation does have some merit because it may be 
a way to bring about an end to the delaying tactics. It would force 
the agencies to get the President to step in and make the decision as to 
whether it was going to be denied in a particular case. I would guess 
any President would not want to be involved in that too often. That, 
Mr. Erlenborn, is the only suggestion I have to make. It is a very dif- 
ficult problem we are faced with. Also, as you know, some of the com- 
mittees on the Hill are faced with it from time to time. 

Mr. Erlenborx. I just have two short questions and I want to yield 
to my colleague from New York, Mr. Horton. 

You mentioned that one thing you can do is go to Congess. I can 
sop if you had a request or inquiry from a committee or from an in- 
dividual Member you could go to them, if access was not made avail- 
able. But this is not the case if this is something that is being done in 
your own capacity, not by request. What committee or committees of 
Congress would you then turn to ? 

Mr. Keller. I think we would have to turn to the Government Oper- 
ations Committee, our parent committee, and perhaps the legislative 
committee involved if we can get some support. 

Mr. Erlenborx. And you do that frequently ? 

Mr. Keller. That is right. 

Mr. Erlenborx. The other question I have is related to suggestions 
made during these hearings for creation of either an independent 
agency of some sort of committee within Congress which would have 
the authority to screen and determine what is properly to be declassi- 



3085 

fied or made available. Principally this has been in the area of declassi- 
fication of classified documents. 

Would you think that this same sort of device might be useful for 
the GAO, that is an independent body or committee of Congress to be 
the arbiter in a dispute between you and another agency as to access of 
documents ? 

Mr. Keller. Certainly I think it would be of help to us if it was 
set up. Frankly I think establishing a congressional committee is not 
going to solve the problem. If you could get the executive branch to 
agree to a group representing both the legislative and the executive 
with both sides willing to abide by the decisions, perhaps you could get 
somewhere. 

Mr. Erlenborn. I think that is an interesting observation. I domt 
know that it has been considered before, to have some joint agency 
with joint membership. 

Mr. Keller. I am talking about access generally. To make it clear 
for the record insofar as access to classified information is concerned 
we have not had any real problem. Where it is withheld it is on other 
grounds. 

Mr. Erlenborn. Thank you very much. 

Mr. Moorhead. Would the gentlemen rise while I administer the 
oath? 

Do you solemnly swear the testimony you have given and are about 
to give this subcommittee has been and will be the truth, the whole 
truth and nothing but the truth, so help you God ? 

Mr. Keller. Yes, sir. 

Mr. Stovall. Yes, sir. 

Mr. Duff. Yes, sir. 

Mr. Hortost. Bob, I want to thank you for the excellent statement 
that you presented here this morning before the subcommittee. It does 
point out the problem, I guess, in relation to the entire executive 
branch of the Federal Government the problems that you point out 
are small in the sense that the majority of the agencies do cooperate 
with you and you are talking in terms of only five or six areas that 
you are concerned with. But I think it is an important area that we are 
talking about. 

I noticed that in the Emergency Loan Guarantee Board con- 
troversy they claim apparently that because there is nothing spelled 
out in the law that, therefore, they don't have to comply to make their 
records available. That is a unique and novel approach, it seems to 
me. 

Mr. Keller. Mr. Horton, I don't want to encourage this but I think 
if that argument is good we would have no authority to audit prob- 
ably 10 or 12 major agencies around Washington, including the 
Department of Transportation, NASA. AEC and a few others. 

Mr. Horton. That is the point I am making. 

Mr. Erlenborn made reference to this but what additional means 
do you feel that you need legislatively to make it possible for you 
to get this kind of information when an executive agency takes this 
position ? 

Mr. Keller. I think as a practical matter the only way it can be 
effective is some kind of a cutoff of funds when the information is 



3086 

not made available to the General Accounting Office and perhaps to 
committees of Congress. 

The only other alternative is to give GAO a subpena power, and 
while we have asked for that in connection with contractors, grantees 
and the like, I have reservations as to whether GAO should be granted 
subpena power against another department of the Government. 

I think you raise some questions which maybe the courts themselves 
would not want to take on. 

Mr. IIorton. The other area that I am most concerned about, and 
that doesn't mean to diminish my concern about the other areas you 
have talked about, but the one I am most concerned about relates to 
the practices of the Internal Revenue Service because this is a large 
agency that has a great deal of information and has a great deal of 
activity and particularly now in addition to its tax responsibility it 
also is involved in the operation of the wage and price control efforts. 

Mr. Keller. Yes, sir. 

Mr. Horton. Are you saying in your testimony that you have really 
had literally no access to information there sufficient to make any 
audit or any study as to what they are doing so you can report to 
Congress ? 

Mr. Keller. Yes, sir, that is what I am saying. In connection with 
the wage and price control enforcement, we have a congressional re- 
quest to do some work in there now and the IRS General Counsel is 
considering whether, under section 205 of the Economic Stabilization 
Act, concerning confidentiality of information obtained under the act, 
they will furnish GAO access to the information needed. As far as the 
enforcement of the tax laws, how they handle their workloads, and 
whether they are making the most effective use of their agents and 
their personnel, we have had no access whatsoever to any of their 
operations. 

We have tried to make it very clear that we are not trying to second 
guess the Service on individual tax returns. And we, as well as any 
other Government employees that have access, are certainly prohibited 
by statute from disclosing any type of information in a tax return. 

We are interested in how well they are carrying out their job just 
like any other agency. 

Mr. Horton. Well, I think Congress has a light to know and it 
seems to me that they are intentionally thwarting that effort. 

Mr. Chairman, it seems to me appropriate that this committee ask 
the Commissioner of Internal Revenue Service and those Treasury 
officials involved to testify before this committee so we can explore this 
area in more depth. I think that the Congress is being thwarted and 
also the Government Accounting Office is being thwarted in spite of 
the statutory requirement that permits the Government Accounting 
Office to get this type of information. So I would hope that we could 
arrange to have them in. 

Mr. Moorhead. The Chair welcomes that suggestion. The witness 
schedule is awfully full but we will try to work them in. 

Mr. Keller. To make the record clear, we do have access to their 
administrative operations such as payroll. 

Mr. Horton. I understand that. That is a very small window. 

Mr. Keller. That is right. We are interested in their operating 
methods. For example, I mentioned earlier that we are doing a review 



3087 

requested by the Joint Committee on Internal Revenue Taxation. 
When it is done that way the Internal Revenue Service will cooperate. 
This is a review on the handling of delinquent accounts throughout the 
country. Are these accounts equitably handled for all ? Is IRS pressing 
harder some places than others I We think it is a very worthwhile effort 
because delinquent accounts run some $2 billion at any given time. 

Mr. Horton. Could I ask you in advance of testimony from the 
Internal Revenue Service and the Treasury officials involved to pre- 
pare for us the areas in which you want to get information and the 
areas in which you have not been able to get this information; spell 
it out a little more in detail and specifics than it has been in the testi- 
mony here. 

Mr. Keller. Certainly. 

Mr. Horton. I think it would be very helpful to us to ask those kinds 
of questions. 

Mr. Keller. I will be very glad to, Mr. Horton. We think it is 
important. 

(The information follows :) 

GAO Access to Records Problem at the Internal Revenue Service 

GAO's review efforts at IRS have been materially hampered and in some 
cases terminated because of the continued refusal by IRS to grant GAO access to 
records necessary to permit it to make an effective review of IRS operations and 
activities. 

Without access to necessary records, GAO cannot effectively evaluate the IRS 
administration of operations involving billions of dollars of annual gross 
revenue collections (about $192 billion in fiscal year 1971) and millions of dollars 
in appropriated funds (about $978 million in fiscal year 1971). Such an evaluation 
we feel would greatly assist the Congress in its review of IRS budget requests and 
its appraisal of IRS operations and activities. Without such access, the man- 
agement of the largest collection agency in the world, employing about 65,000 
people, will not be subject to independent audit. 

GAO has taken every opportunity to impress upon IRS officials that it is not 
interested in the identity of individual taxpayers and does not seek to super- 
impose its judgment for that of IRS in individual tax cases; rather GAO is in- 
terested in examining individual tax transactions only for the purpose of and in 
the number necessary to serve as a reasonable basis for evaluating the effective- 
ness, efliciency. and economy of selected IRS operations and activities. GAO has, 
in general, directed its efforts toward those areas where GAO believed improve- 
ments in current operations would bring about better IRS administration of 
programs, activities, and resources. 

It. is the position of the Internal Revenue Service that no matter involving the 
administration of the Internal Revenue laws can be oflScially before the General 
Accounting Office. Tbe Commissioner of IRS in a letter dated June 6, 1968, to the 
Comptroller General referred to a May 20, 19G8, opinion of his Chief Counsel and 
stated : 

•'* * *I must note that the opinion holds that the Commissioner of Internal 
Revenue is barred by sections 6400 and 8022 of the Internal Revenue Code from 
allowing any of your representatives to review any documents that pertain to 
tbe administration of the Internal Revenue laws. Thus, Federal tax returns and 
related records can be made available to you only where the matter officially 
before GAO does not involve administration of those laws." 

Under the provisions of 26 U.S.C. 6103 tax returns are open to inspection only 
on order of the President and under rules and regulations prescribed by the 
Sccretarv of the Treasurv or his delegate and approved by the President. Regu- 
lations appearing at 26 CFR 301.6103 (a) -100-107, grant several Government 
agencies specific right of access to certain tax returns. Our Office is not included 
among those agencies. The regulation applicable to our Office, 26 CFR 301.6103 
(a)-l(b)(f), provides that tbe insi>ection of a return in connection with some 
matter officially before the head of an establishment of the Federal Government 



3088 

may be permitted in the discretion of the Secretary or Commissioner upon written 
application of the head of the establishment. 

IKS has permitted Federal agencies, States, individuals, contractors, and others 
to have access to tax returns and records. GAO has been given access to tax 
returns when reviewing operations of other Government agencies, but has been 
denied records requested for reviews of IRS operations. 

While we recognize that the law governing access to IRS records permits them 
to deny us access, it is our view that the law does not require such denial and 
that the reasons accepted for allowing certain agencies access under the regula- 
tions found at 26 CFR 301.6103 (a ) -100-108, have particular validity as a basis 
for allowing GAO access. 

Examples of recent and pending GAO activities at IRS which involve access 
to records problems follows. 

ACCESS TO RECORDS DENIED ON CONGRESSIONAL REQUEST ASSIGNMENT 

The chairman, Legal and Monetary Affairs Subcommittee of the House Com- 
mittee on Government Operations on June 28, 1971, requested GAO to review 
IRS's effectiveness in collecting the Federal highway use tax. 

An IRS official advised us that the May 20, 1968, opinion of the Chief Counsel 
held that IRS was barred from allowing GAO to review any documents that 
pertained to the administration of the Internal Revenue laws. He advised us also 
that the Chief Counsel's opinion held that the Internal Revenue Code limited 
the right to review IRS's administration of the tax laws to the Joint Committee 
on Internal Revenue Taxation. 

IRS did agree, however, to make available to GAO summary data relating to 
its highway use tax compliance studies and programs. Our review at IRS was 
therefore limited to an analysis of the summary data provided and to discus- 
sions with officials responsible for administering the law pertaining to the highway 
use tax. This limitation on our review directly affected our ability to reach a 
conclusion on IRS's effectiveness in collecting the Federal highway use tax. 

For example, in fiscal years 1970 and 1971. 47 and 45 IRS district offices, respec- 
tively, performed some returns compliance work on the highway use tax which 
resulted in the collection of additional taxes of $1,096,000 and $1,538,000. The 
major part of this work was carried out by nine IRS districts that formally 
scheduled returns compliance work on the highway use tax. Because GAO's re- 
view was restricted to an analysis of summary data provided by IRS which did 
not include source data, GAO was unable to ascertain whether the scheduled 
returns compliance program work for the nine districts represented a partial or 
complete cross-referencing of State truck registration data against IRS records 
of truck owners who filed highway use tax returns. 

Our report on the administration of the Federal highway use tax by the 
Internal Revenue Service was issued to the subcommittee on May 15, 1972 
(B-164497(3)). 

ACCESS TO RECORDS DENIED ON GAO INITIATED ASSIGNMENT 

The objective of the Alcohol, Tobacco and Firearms Division is to obtain the 
highest possible level of voluntary compliance with Internal Revenue laws and 
other laws related to distilled spirits, alcoholic beverages, tobacco products, fire- 
arms, and explosives. The Division's program is carried out by over 3,300 employ- 
ees working in permissive and enforcement activities throughout the United 
States. The permissive function is concerned with the accurate determination 
and full collection of Federal revenue from the division's tax activities. The 
enforcement function is directed toward the suppression of illicit manufacture, 
distribution, and sale of distilled spirits without payment of tax. and curtail- 
ment of the illegal possession and use of firearms and explosives through admin- 
istration and enforcement of applicable Federal statutes. 

The Division's workload has increased significantly in recent years because of 
the enactment of firearms control legislation and the Organized Crime Control 
Act of 1970. Also, alcohol and tobacco taxes, which totaled about $7 billion in 
fiscal year 1971, constitute a major source of revenue to the Federal Government. 

During August 1971, GAO requested that IRS make available records needed 
to perform a review of the Alcohol, Tobacco and Firearms Division. IRS denied 
us the right to perform this review and cited the IRS's Chief Counsel's May 20. 
1968, decision as the basis for the denial. We were advised that we did not have 
the right to review either permissive activities because it involved tax adminis- 



3089 

tration or enforcement activities because the laws governing these activities are 
part of the Internal Revenue Code. 

If we had access to records of the Alcohol, Tobacco and Firearms Division, we 
would — ■ 

Examine into the inspection activities of the permissive group to ascertain 
whether their procedures are adequate to insure that the distilleries, brew- 
eries, and manufacturers of tobacco products are complying fully with appli- 
cable Internal Revenue laws ; and 

Examine into the effectiveness of procedures followed by the enforcement 
group to carry out its responsibilities in the alcohol, firearms, and explosives 
control areas. 

REQUEST PENDING FOR ACCESS TO ECONOMIC STABILIZATION PROGRAM RECORDS 

( >n April 17, 1972, Congressman Glenn M. Anderson requested that GAO review 
IRS's effectiveness in administering the economic stabilization program in Los 
Angeles, Calif. 

This request is being deferred pending notification from IRS's chief counsel as 
to whether GAO will be given access to the records needed to carry out the review. 
The access to records question on this review does not involve sections 6406 and 
8022 of the Internal Revenue Code. Rather, section 205 of the Economic Stabiliza- 
tion Act Amendments of 1971 (Public Law 92-210, approved December 2, 1971) 
provides for the confidentiality of information obtained under the act which con- 
tains or relates to a trade secret or other matter referred to in section 1905 of 
title IS, United States Code. 

Section 1905 provides as follows : 

"Whoever, being an officer or employee of the United States or of any depart- 
ment or agency thereof, publishes, divulges, discloses, or makes known in any 
manner or to any extent not authorized by law any information coming to him 
in the course of his employment or official duties or by reason of any examina- 
tion or investigation made by, or return, report of records made to or filed with, 
such department or agency or officer or employee thereof, which information 
concerns or relates to the trade secrets, processes, operations, style of work, or 
apparatus, or to the identity, confidential statistical data, amount or source of 
any income, profits, losses, or expenditures of any person, firm, partnership, 
corporation, or association ; or permits any income return or copy thereof or any 
book containing any abstract or particulars thereof to be seen or examined by 
any person except as provided by law; shall be fined not more than $1,000, or 
imprisoned not more than one year, or both ; and shall be removed from office or 
employment." 

In considering GAO's right of access to records on the economic stabiliza- 
tion program, we believe the following quote from House Report 91-714 dated 
December 7, 1971, on section 205 is pertinent : 

"It is the intention of your committee, through provisions of this section, 
to guard against disclosure of information which would tend to damage the com- 
petitive position of persons, organizations, businesses and industries providing 
such information. At the same time the committee deems it necessary to point out 
that * * * much of the information obtained in carrying out the purposes of 
this title cannot be construed as a trade secret or be classified as otherwise sen- 
sitive to those disclosing it. Moreover, it is the view of your committee that public 
disclosure, to the fullest extent possible of the information on which policies, 
regulations and controls are predicated to carry out. the purposes of this title 
is necessary to achieve and maintain the widest possible confidence, and by the 
same token, the largest possible degree of public cooperation to assure the success 
of efforts to achieve economic stability. * * *" 

STUDY IN PROCESS FOR THE JOINT COMMITTEE ON INTERNAL REVENUE TAXATION 

The joint committee on January 13. 1071. authorized GAO. as agent of the joint 
committee, to undertake a study concerning the policies and procedures estab- 
lished by IRS in connection with the handling and collection of taxpayer's delin- 
quent accounts. The study was to include an examination into the (1) effective- 
ness of IRS programs to collect past due accounts, (2) equities of collection 
procedures as applied to all taxpayers, (3) policies and practices in regard to 
delinquent accounts considered currently uncollectible, and (4) adequacy of 
the resources devoted to carrying out IRS's responsibilities in regard to the 
collection of delinquent taxes. 



3090 

During our review, as agents of the joint committee, we have had IRS's com- 
plete cooperation and access to all the records needed to accomplish the objectives 
of the study, including tax returns by individual taxpayers. Without having had 
access to individual tax cases, it would not have been possible for GAO to reach 
any conclusions on the effectiveness of IRS programs to collect past due accounts, 
equities of collection procedures as applied to all taxpayers, and practices in 
regard to delinquent accounts considered uncollectible. Any report on a review 
of taxpayers' delinquent accounts which would not include these elements, in our 
opinion, would be of nominal value to the Congress in appraising IRS operations. 

The field work on the study, which was carried out by GAO's Washington 
staff and four regional offices, is essentially completed. The final report will be 
submitted only to the joint committee and no release of the report or any of its 
contents will be made except by the joint committee. Although we reviewed 
records of individual tax cases, the reviews were made only for the purpose of 
evaluating the effectiveness of IRS's delinquent account activities and the iden- 
tity of individual tax cases will not be included in the report to the joint 
committee. 

EXAMPLES OF POTENTIAL AUDIT AREAS WHERE GAO NEEDS ACCESS TO RECORDS 

The extent to which GAO's efforts at IRS have been hampered by lack of access 
to records is illustrated by the following summary of our request to obtain gen- 
eral background information on a tax administration area which would involve 
only the interviewing of responsible officials and obtaining information that has 
been made available to the public. Also, following are summaries of two areas 
involving tax administration which we believe warrant independent review. 

Request to interview officials of the Miscellaneous and Special Provisions Tax 
Division.— By letter dated January 13, 1971, the chief of staff of the Joint Com- 
mittee on Internal Revenue Taxation advised the Comptroller General that 
the joint committee would like GAO to act as its agent in performing certain 
reviews of the operations, policies, and procedures of IRS. 

Since the field work on the current review on taxpayer delinquent accounts 
that the joint committee requested us to undertake is nearing completion, we 
advised IRS by letter dated May 5, 1972, that we anticipate that the joint 
committee will request us to initiate another review in the near future in 
another area of tax administration. In this connection, we also anticipate that 
the joint committee may request our opinion as to other areas which should be 
examined into. 

We explained that, in order to be in a position to provide such information, we 
plan to obtain background information on other IRS operations involving tax 
administration such as excise taxes, exempt organizations, and pension trusts 
which are administered by the miscellaneous and special provisions tax division. 
We also explained that, since this information will not be gathered under the 
auspices of the joint committee, we would restrict our activities to interviewing 
responsible agency officials as to their duties and responsibilities and the func- 
tions performed by their particular organizational unit. Further, we explained 
that we would not request any taxpayer information other than that which is 
made available to the public. 

We stated our belief that these proposed activities would not conflict with 
the May 20, 1968, interpretation by the IRS Chief Counsel that the Commissioner 
is barred by sections 6406 and 8022 of the Internal Revenue Code from allowing 
GAO representatives to review any documents that pertain to the administration 
of the internal revenue laws. 

On May 9, 1972, the Deputy Commissioner of IRS advised us that he had 
requested the advice of the Chief Counsel as to GAO's legal authority to make 
this review. He stated that he had asked the Chief Counsel to expedite the matter. 

Integrated data retrieval system. — In July 1969, IRS began a pilot project 
in their southwest region to determine if the installation of an integrated data 
retrieval system (IDRS) would alleviate taxpayer adjustment and correspond- 
ence problems and otherwise render sufficient services and increase operational 
efficiency to justify installation costs. Anticipated services to be provided by 
IDRS include (1) direct access and retrieval of taxpayer account information, 
(2) direct input of taxpayer information into the system, (3) computer prepara- 
tion of correspondence, and (4) the capacity for predeposit search of unidentified 
remittances. 

On the basis of its feasibility study, IRS officials concluded that IDRS was 
justified on the basis of its positive influence on taxpayer relationships even if 



3091 

savings are not realized. In December 1970, IRS awarded a $29.2 million contract 
for the installation of IDRS equipment in the seven existing service centers 
with the provision that IDRS would be installed in the three service centers 
then under construction for about $12.6 million. 

Because of the substantial impact IDRS will have on the effectiveness of 
IRS's tax collection activities and the amount of equipment being procured, we 
believe that 6AO should be permitted to make an independent evaluation to 
ascertain : 

The adequacy of the feasibility study on which the decision to install 
IDRS nationwide was based ; 

Whether IRS has adequately informed the Congress of the substantial 
costs involved in the installation and annual operation of a nationwide 
IDRS system ; and 

Whether IDRS from an operational standpoint can provide the services 
on which its installation was based and how effective, efficient, and eco- 
nomical such operations can be accomplished. 
Access to taxpayer records would be needed to determine the operational capa- 
bilities of the system and the effectiveness and efficiency of its operation. 

Selection of tax returns by IRS for audit. — Over the years the main deterrent 
to noncompliance with the Federal tax laws has been the audit by IRS of tax 
returns. However, over the past several years IRS states in its budget justifica- 
tions that enforcement capability has shrunk in relation to the growing size and 
complexity of the taxpayer population. In fiscal year 1971, IRS devoted only 
slightly more audit man-years than it did in fiscal year 1963, while in the same 
period' the number of relatively complex returns went up dramatically. 

Under IRS procedures, returns are selected and classified for audit primarily 
by using the ADP system. According to IRS. the ADP selection technique meas- 
ures return characteristics against standards, selects returns for examination, 
and ranks the returns by magnitude of potential tax error. IRS contends that this 
method not only reduces manpower required for classification but, by more effec- 
tively identifying returns with the greatest error potential, makes the most 
efficient use of audit manpower. 

Since IRS has had many years of experience in perfecting its technique for 
selecting returns for examination, the returns selected would be expected to pro- 
vide excellent results in terms of tax changes. However, the latest information 
included in the budget justifications indicate that for fiscal years 1967, 1968, and 
1969 about 40 percent of the returns audited did not result in any tax change. In 
more recent years, this type of information has not been included in the budget 
justifications. 

Access to taxpayer records would be needed in order for GAO to examine into 
the adequacy of IRS's returns selection and classification technique. 

******* 

It should be recognized that there is no assurance that an unrestricted review 
of the above areas by GAO would result in the disclosure of material management 
weaknesses in any specific area. However, in the absence of such a GAO review, 
the Congress has no independent assurance that IRS is carrying out its operations 
in an efficient, effective, and economical manner. Also, the magnitude and com- 
plexity of Federal tax collection activities is such that we believe independent 
GAO evaluations of IRS operations would not only assist the Congress in its 
oversight of tax administration but would also assist IRS in strengthening its 
administration of programs and activities, and more efficiently use its resources. 

Mr. Horton. Thank you, Mr. Chairman, that is all I have. 

Mr. Moorhead. Thank you, Mr. Ilorton. 

Oft' the record now. 

(Discussion off the record.) 

Mr. Moorhead. Would you gentlemen mind standing by ? 

Mr. Keller. I would be very glad to. Both Mr. Stovall and Dr. Duff 
are going out of town tomorrow. If we could finish up today we will 
appreciate it. 

Mr. Moorhead. We will finish up today. 

Mr. Keller. Yes, sir. 



3092 

Mr. Moorhead. I think we will finish. Mrs. Mink wants to conclude 
her statement by noon and we will accommodate her. I think another 
10 or 15 minutes could complete your testimony, Mr. Keller. 

The subcommittee is now very pleased and honored to welcome our 
distinguished colleague from Hawaii, one of the ablest and most artic- 
ulate Members of the House of Representatives, the Honorable 
Patsy T. Mink of Hawaii. 

STATEMENT OF HON. PATSY T. MINK, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF HAWAII 

Mrs. Mink. Thank you very much, Mr. Chairman, and members of 
the subcommittee. I am very grateful to you for your giving me this 
opportunity and more particularly for interrupting your schedule 
to allow me to testify on some of the problems in the administration 
of the Freedom of Information Act. 

In particular, I want to discuss with you certain concerns about 
access to information needed to carry out the congressional functions. 
As many of you know, my concern over this problem led to a Freedom 
of Information Act suit filed last year to obtain certain information 
on the Amchitka, Alaska, underground nuclear test. That case is now 
pending before the U.S. Supreme Court and arguments will be heard 
this fall. It is the first Freedom of Information Act case to be heard 
by the U.S. Supreme Court. 
* Because of my concern over possible adverse environmental effects 
of the nuclear test, I attempted last year to block its funding by 
Congress. On July 15, 1971, I offered 'an amendment to H.R. 9388, 
the Atomic Energy Commission authorization bill for fiscal 1972, 
which would have eliminated funds authorized for the test — code 
named "Cannikin." Unfortunately, that amendment failed in the 
House and a similar amendment failed in the Senate on July 20, 
1971. 1 offered another amendment when IT.R. 10090, the appropriation 
bill for Public Works and the Atomic Energy Commission, was taken 
up by the House on July 29. This also failed. A major factor in our 
inability to secure passage of my amendment was the lack of in- 
formation on the environmental and physical dangers involved. 

On July 26, 1971, prior to the second amendment being considered 
by the House, an article was published in the Washington Evening- 
Star which indicated that certain Federal agencies had recommended 
to the White House that Cannikin be canceled. The article indicated 
that the Federal agencies charged with protecting the environment — 
EPA and CEQ — both recommended against conducting the test, as 
did the President's Office of Science andTechnology. I ask that a copy 
of this article be included in the committee record at this point. 
Mr. Moorhead. Without objection, so ordered. 
(The article referred to above follows :) 

[From the Evening Star, Washington, B.C., July 26, 1971] 

Agencies' Views Diffee on Amchitka Test Blast 

(By James Welsh, Star staff writer) 

The White House has received conflicting recommendations from various Gov- 
ernment agencies on whether to go ahead this fall with an underground nuclear 
test on remote Amchitka Island. 



3093 

According to informed sources, two Federal agencies, the Department of De- 
fense and the Atomic Energy Commission, favor a go-ahead for the 5-megaton 
test blast. 

For a variety of reasons, five other agencies — the State Department, the Office 
of Science and Technology, the U.S. Information Agency, the Environmental Pro- 
tection Agency, and the Council of Environmental Quality have recommended 
either canceling the test or postponing it until after the SALT arms-limitations 
talks. 

Amchitka is at the southwestern tip of the Aleutian Islands off Alaska, about 
700 miles from the Soviet Union. 

In October 1969, the AEC set off a 1-megaton hydrogen bomb 4,000 feet deep 
within the islands without causing any of the earthquakes, tidal waves or environ- 
mental damage feared by critics of the testing. 

The megatonnage of this fall's planned test, which is code-named Cannikin, is 
five times as large. The nuclear device is scheduled to explode 6,000 feet under- 
ground. Cannikin is a test of a large Spartan warhead designated for use as a 
component of an ABM system protecting Minuteman missile sites. 

The latest recommendations on the proposed test are a product of a depart- 
mental under secretary committee named to investigate the controversy. The 
recommendations went directly to Henry Kissinger, Nixon's chief foreign policy 
adviser, and John Ehrlichman, chief domestic adviser. 

The Defense Department and AEC. sources said yesterday, continue to favor 
the testing as important to national security. They minimize the chances that 
the test will trigger earthquakes or cause other unwanted environmental side 
effects. 

OST, which is the President's scientific advisory arm, reportedly opposes the 
experiment, not primarily for environmental reasons but because the warhead to 
be tested has been made obsolete by recent weapons development. 

The State Department, sources said, took a middle ground. It did not recom- 
mend canceling the test, but advised postponing it until the completion of the 
SALT talks. The Council of Environmental Quality took much the same posi- 
tion. The Environmental Protection Agency opposes the test, believing that even 
a slight possibility of earthquake is too much of a chance to take. 

Mrs. Mink. On July 28, 1971, 1 telegraphed the President requesting 
release of the documents upon which that newspaper article was 
based. I stressed that the information was needed so that Congress 
could properly legislate on Cannikin. On August 2, 1971, John W. 
Dean III, Counsel to the President, replied to my telegram and in- 
formed me that the reports described in the Star article were not avail- 
able to Members of Congress. I request that a copy of that letter also 
be included in the committee record at this point. 

Mr. Moorhead. Without objection, so ordered. 

(The letter referred to above follows :) 

The White House, 
Washington, B.C., July 30, 1971. 
Hon. Patsy T. Mink, 
House of Representatives, 
Washington, B.C. 

Dear Mrs. Mink : This is to thank you and reply to the request which you 
made on July 28 for the release of agency recommendations on the proposed 
underground nuclear test at Amchitka Island in Alaska. 

These recommendations were prepared for the advice of the President and 
involve highly sensitive matter that is vital to our national defense and foreign 
policy. Therefore, I regret to inform you that they are not available for release. 

We appreciate your interest in this matter. 
Sincerely, 

John W. Dean III, 
Counsel to the President. 

Mrs. Mixk. Thereafter, on August 11, 1971, 32 other Members of 
Congress and I instituted a suit under the Freedom of Information 
Act to obtain the Cannikin reports. We contended that as Members of 
Congress we were entitled to disclosure of the information without 

76-253 — 72 — pt. S 11 



3094 

regard to the restrictions on disclosure in the act that apply to mem- 
bers of the public. The Government responded by contending that 
Members of Congress could not sue executive officials because of the 
"separation of powers provisions" of the Constitution. In essence, the 
Government seemed to argue that if the executive branch disobeyed a 
lawful duty owed to the legislative branch, the executive branch could 
not be held accountable by the judiciary. 

The Government further contended that in any event the documents 
were immune from disclosure under the Freedom of Information Act 
because they were classified "secret" or higher and consisted of internal 
documents prepared for the advice of the President. 

The district court held that as Members of Congress we could not 
seek judicial relief against the executive branch. It further held that 
as members of the public, we were not entitled to the documents be- 
cause they were classified and consisted of internal agency memoranda. 
An emergency appeal was taken to the Court of Appeals for the 
District of Columbia Circuit. Several reasons were urged in support 
of reversal of the trial court's judgment. First, we contended that 
Members of Congress were entitled to sue as such and that such suits 
were not barred by any "separation of powers" principles. Second, we 
argued that Members of Congress were not subject to the restrictions 
on disclosure contained in the act. Third, we contended that the Gov- 
ernment had not sustained the burden placed on it by the act to 
justify nondisclosure and that the trial court had not conducted the 
de novo hearing required by the act. Fourth, we contended that the 
"classification" and "internal memoranda" exemptions of the act did 
not apply to the documents in question. And we basically urged that 
the district court failed fully to explore the facts behind the with- 
holding in order to determine the legality of the agency actions. 

The court of appeals did not pass on all these contentions. Rather, 
it simply held that the validity of the secrecy classification was cast 
in dispute by the Government's own allegations and that an in camera 
inspection of the withheld documents was necessary to determine 
whether they should be disclosed under the act. I ask that a copy of 
the court of appeals opinion be included at this point in the hearing 
record. 

Mr. Moorhead. Without objection, so ordered. 

(The document referred to above follows :) 

Notice : This opinion is subject to formal revision before publication in the Federal 
Reporter or U.S. App. D.C. Reports. Users are requested to notify the clerk of any formal 
errors in order that corrections may be made before the bound volumes go to press 

U.S. Court of Appeals foe the District of Columbia Circuit 

(No. 71-1708) 

Patsy T. Mink, et al., Appellants, v. Environmental Protection Agency, 
William D. Ruckelshaus, Administrator, Environmental Protection Agency 

On Appellant's Motion for Summary Reversal 

(Decided October 15, 1971) 

Mr. Ramsey Clark, with whom Mr. Kenneth C. Bass, III, was on the motion, 
for appellants. 

Mr. Jeffrey Axelrad, Attorney, Department of Justice, with whom Messrs. Mor- 
ton Hollander and Harland F. Leathers, Attorneys, Department of Justice, were 
on the opposition to the motion, for appellees. 



3095 

Before Fahy, Senior Circuit Judge, and Leventhal and Wilkey, 1 Circuit 
Judges. 

Per Curiam. — This is a suit brought by 33 members of Congress, in both their 
official and private capacities, under the Freedom of Information Act (FOIA), 
5 U.S.C. 552 (1970), to obtain several documents pertaining to an underground 
nuclear test explosion which had been scheduled to take place on Amchitka Is- 
land. Alaska. 2 

Priority is given by the Act to such suits in the District Court, see 5 U.S.C. 
552(a)(3) (1970). In accordance with this Congressional policy, we provide, 
comparable expedition in the appellate court. 



Appellees, who were defendants in the District Court, admit the existence ot 
the documents in question, which are concerned with the environmental, national 
defense, and foreign relations consequences of the planned test. The documents 
were prepared in report form by a special committee chaired by Honorable John 
Irwin, Undersecretary of State. The Committee was established by the President 
on January 20, 1969, and is part of the National Security Council system. The 
President, on June 27, 1969, directed the Committee to review the annual under- 
ground nuclear test program. Pursuant to this direction the Committee prepared 
a report on the Alaskan nuclear test (code-named Cannikin). 

As a result of an apparent leakage of certain portions of the report that sug- 
gested some agency disapproval of the test, Representative Patsy Mink asked the 
White House for copies of the report. The request was denied and this suit fol- 
lowed, with 32 other Members of Congress joining Representative Mink as plain- 
tiffs. They sought summary judgment to compel disclosure of the requested 
documents. Appellees, defendants, filed an answer, a supporting affidavit exe- 
cuted by Undersecretary Irwin, and a motion to dismiss or in the alternative for 
summary judgment. A hearing was held on August 27. 1971, before the District 
Court. The District Court thereafter entered an order which dismissed the 
complaint insofar as plaintiffs sought to maintain their action in their capacity 
as Members of Congress, on the ground that they failed to state a justiciable 
case by virtue of the Separation of Powers doctrine. Insofar as plaintiffs pro- 
ceeded in their private capacity, the District Court refused to compel disclosure 
on the grounds that the documents fell within two of the nine exemptions 
contained in the FOIA, 5 U.S.C. 552(b) (1) (national defense and foreign affairs 
secrets) and 5 U.S.C. 552(b)(5) (inter-agency memoranda). Plaintiffs, appel- 
lants, noted an appeal, and now move in this court for summary reversal. 

II 

Congress tailored the Freedom of Information Act to require federal agencies 
to make information available to any person, unless that information must be 
withheld for a purpose that Congress deemed paramount to disclosure. Those 
matters requiring secrecy have been defined in nine exemptions to free disclo- 
sure. The two exemptions at issue in this case permit withholding of matters if 
they are: "(1) specifically required by Executive order to be kept secret in the 
interest of national defense or foreign policy ... (5) inter-agency or intra- 
agency memoranda or letters which would not be available by law to a party 
other than an agency in litigation with the agency." 3 

The Freedom of Information Act post-dates a 1953 Executive Order — No^ 
10501 — that provides for classification of matters relating to national defense.* 
The legislative history of the Act does not define clearly the relationship be- 
tween this Executive Order and the exemption of national defense and foreign 
affairs secrets of 5 U.S.C. § 552 (b) (1). Since the passage of the Act, the Execu- 
tive Order has continued to be the authority for classification of matters relat- 
ing to national defense. Appellants argue that the national defense and foreign; 
affairs secrets exemption requires each and every document that an agency 
wishes to withhold to be classified by separate Executive Order and not by the 
present classification procedure. After examining the various interpretations 

1 Circuit Judge Wilkey did not participate in the consideration of this case. 

2 The test was originally scheduled for October. 1971, but Congress has provided that It 
may not take place sooner than May, 1972, unless the President gives his direct approval for 
an earlier date. Cf. The Committee For Nuclear Responsibility, Inc. v. Seaiorg. No 71— 
1732. October 5. 1971. 

3 5 U.S.C. 552 (b) (1), (5). 
'3C.F.R. 292 (1970). 



3096 

given this exemption, we conclude that summary disposition of this issue by 
this court is inappropriate, and should be the subject of a full consideration on 
the merits by this court if the appeal is continued following the disposition on 
remand. 

We do conclude, however, that summary disposition is appropriate in part, 
for the purpose of remand, on two of the matters before us. 

1. The critical paper before us is the affidavit of Undersecretary Irwin, and 
particularly its paragraph 5. 6 We note first his statement that the documents in 
question include a memorandum from the Council on Environmental Quality 
to Undersecretary Irwin which is attached to the classified report, but "is sep- 
arately unclassified." Appellees' justification for this bunching of all appendages 
according to the highest classification of the document to which they are at- 
tached is based on the following paragraph of section three of Executive Order 
10501 : 7 

(b) Physically connected documents. — The classification of a file or group 
of physically connected documents shall be at least as high as that of the most 
highly classified document therein. Documents separated from the file or 
group shall be handled in accordance with their individual defense classifica- 
tion. 
This court sees no basis for withholding on security grounds a document that, 
although separately unclassified, is regarded secret merely because it has been 
incorporated into a secret file. To the extent that our position in this respect is 
inconsistent with the above-quoted paragraph of Section 3 of Executive Order 
10501, we deem it required by the terms and purpose of the FOIA, enacted sub- 
sequently to the Executive Order. 

The papers before us contain an assertion, based on an account in the New 
York Times, that the only reason for the Secret classification of the recommenda- 
tion transmitted to Undersecretary Irwin by William D. Ruckelshaus, Admin- 
istrator of the Environmental Protection Agency, is an instruction put on the 
basis that the entire file would be classified Secret. We take note that Under- 
secretary Irwin's affidavit identifies certain items (B 1, 2 and 4) as "separately 
classified," but no such statement is made as to the letter from the Administrator 
of E.P.A., or from Russell Train, Chairman of the Council on Environmental 
Quality, or from Dr. Edward E. David, Jr., for the Office of Science and Tech- 

= Compare Epstein v. Resor, 421 F. 2d 030, 933 (9th Cir. 1970), cert, denied, 39S U.S. 
965 (1970) Sen. Rep. 813. S9th Cong., 1st Sess. (1965) at 8, with H.R. Rep. 1497, 89th 
Cong. 1st Sess. (1966) at 9-10, Dept. of Justice, Attorney General's Memorandum on 
the Public Information Section of the A.P.A. (1967) at'30. 

6 5 "In accordance with the foregoing directions from the President, the Under Secre- 
taries Committee has prepared a report upon the proposed underground nuclear test known 
as Cannikin consisting of the following : 

A. A memorandum prepared by me to the President dated July 1/, 19 <1. This 
memorandum is classified as Top Secret and as Restricted Data. 

B Attached to that memorandum to the President was a report of the Under Secre- 
taries Committee on the proposed Cannikin test. This report is classified Top Secret 
and as Restricted Data. The following documents were attached to this report : 

1 A letter from the Chairman of the Atomic Energy Commission to the Chair- 
man of the Under Secretaries Committee, myself. This letter is separately classi- 
fied Secret and separately as Restricted Data. 

2. A report of the Defense Program Review Committee, the Chairman of which 
is Dr. Henry Kissinger. This report is separately classified as Top Secret and 
separately as Restricted Data. 

3. The Environmental Statement Cannikin, dated June, 1971, by the United 
States Atomic Energy Commission. This document is publicly available and a copy 
is attached as Exhibit C. 

4. A transcript of a briefing by the Atomic Energy Commission on Cannikin 
given orally to the Under Secretaries Committee. This document is separately 
classified as Secret and separately as Restricted Data : and 

5. A memorandum to me from the Council on Environmental Quality. This 
memorandum is an attachment to the classified report and is separately 
unclassified. 

C. In addition, letters containing recommendations were transmitted to me regard- 
ing the proposed test known as Cannikin by Mr. William D. Ruckelshaus for the 
Environmental Protection Agency, bv Mr. Russell Train, for the Council on Environ- 
mental Quality and by Dr. Edward E. David, Jr., for the Office of Science and Tech- 
nology. Each of these three letters is classified Top Secret and as Restricted Data. 
The documents described in this paragraph, except for item B3 above, were prepared 
solelv for the purpose of giving advice to the President and involve, except for item Bo 
above, highly sensitive matter that is vital to our national defense and foreign policy. 
They were prepared and used solely for transmittal to the President as advice and recom- 
mendations and set forth the views and opinions of the individuals and agencies preparing 
the documents so that the President might be fully apprised of varying viewpoints and 
have been used for no other purpose. 
'3 C.F.R. 295 (1970). 



3097 

nology. This is not a case where the mere disclosure of the fact of the inquiry 
is itself secret. 

However, we do not think that a matter as important as this is to be deter- 
mined on the basis of Undersecretary Irwin's affidavit as it. stands. Under our 
remand, the District Court will take evidence on whether, and to what extent, 
the file contains documents that are now within the umbrella of a secret file but 
which would not have been independently classified as secret. Such documents 
are not entitled to the secrecy exemption of subdivision (b) (1) solely by virtue 
of their association with separately classified documents. 

The following provision of Executive Order 10501 requires our attention since 
it is likely to be involved on remand : 

(c) Multiple classification. — A document, product, or substance shall bear 
a classification at. least as high as that of its highest classified component. 
The document, product, or substance shall bear only one over-all classifica- 
tion, notwithstanding that pages, paragraphs, sections, or components thereof 
bear different classifications. 
The same reasoning applies to this provision as to the one dealing with physically- 
connected documents. Secrecy by association is not favored. If the non-secret com- 
ponents are separable from the secret remainder and may be read separately with- 
out distortion of meaning, they too should be disclosed. 

2. Similar treatment must be accorded on remand with respect to the Govern- 
ment's claim for exemption under subdivision (b) (5). The Court has recently con- 
sidered that exemption in Soucie v. David, No. 24,573, April 13, 1971, and there is 
no need to review that opinion at length. It suffices to any that while the exemp- 
tion protects the decisional processes of the President, or other policy-making ex- 
ecutive officials, it does not prevent the disclosure of factual information unless 
it is inextricably intertwined with policymaking processes. 8 

Ill 

We turn to the procedure to be followed by the District Court in carrying out 
the terms of our remand. In approaching this problem we have in mind the very 
special place the President occupies in the conduct of foreign affairs, both tradi- 
tionally and constitutionally, apart from his additional responsibilities in connec- 
tion with the national defense. In the exemption from disclosure contained in 
Section 552 ( b ) ( 1 ) Congress has recognized the need for protection of the channels 
of communication and advice to the President in both these respects which are 
involved in the present litigation. Accordingly, in camera consideration of the 
documents by the District Court, looking toward their possible separation for 
purposes of disclosure or nondisclosure, is necessary, else the possibility of non- 
disclosure under the guides we have stated would be defeated. Moreover, although 
we have held in Soucie v. David, supra, that the policy of the Act requires that 
the exemptions from disclosure prescribed by FOIA be construed narrowly, this 
admonition must be tempered somewhat when the documents contain data sup- 
plied to the President with respect to nuclear explosions involving not only the 
national defense but the conduct of foreign affairs by the President in the context 
of such nuclear testing. In considering the documents also under the exemption 
granted by Section 552(b) (5) the District Court in camera will likewise have in 
mind, in possibly separating out factual data that can be disclosed without im- 
pinging on the policymaking decisional processes intended to be protected by this 
exemption, the sometimes delicate character of the responsibility of the President 
in the conduct of foreign affairs. 

As already noted, this opinion does not deal with all the questions argued to 
us. It suffices that for the reasons noted the summary judgment denying all relief 
to plaintiffs must be reversed, and the case remanded forthwith for further con- 
sideration by the District Court. 

So ordered. 

Mrs. Mink. The Government then sought certiorari from the Su- 
preme Court, contending that the in camera hearing was unauthorized 
by the act and constituted an invasion of executive functions. As 
indicated, the ease is now pending before the Supreme Court. 

This brief description indicates that numerous important legal 
issues in the administration of the act are presented by this case and 

s Sonde v. Da rid. slip opinion at IS. 



3098 

are now pending before the Court. My comments today by no means 
are intended to minimize the importance of all of those legal issues : 
rather, I rely on the knowledge and experience of this committee and 
its staff to evaluate the litigation and any decision the Supreme Court 
may render later this year. 

Thus, I will not elaborate on the various issues such as scope of the 
"classification" and "internal memorandums" exemptions, the proper 
procedure for reviewing court, and the other questions of statutory 
interpretation. I will instead direct my remarks to the important policy 
issue involved in this case which in my judgment is indicative of a 
current crisis of constitutional dimensions in our democratic society. 

Specifically, I refer to the present inability of the Congress to obtain 
information from the executive branch that is needed to perform our 
constitutional powers of legislation prescribed in article I. Plow many 
times have members of this committee been frustrated in their efforts 
to obtain information needed for a legislative purpose? How many 
times have we been met by a wall of "executive privilege" surrounding 
the facts needed for democratic governance? How many times has 
this withholding of information precluded intelligent legislation and 
effectively placed far too much power in the executive branch? How 
maiw times has the executive parceled bits and pieces of information 
to the press to further its own goals while denying that same infor- 
mation to the Congress ? 

It is my firm belief that a democratic society cannot survive the 
suppression of information revealed by the Cannikin episode. These 
highly expert executive agencies apparently concluded that an under- 
ground nuclear test posed substantial dangers to the health and safety 
of American citizens. And yet, when Congress itself sought the infor- 
mation in order to determine the propriety of the test, the executive 
branch hid behind legal privileges and principles and effectively frus- 
trated meaningful congressional participation. 

Were this incident simply an isolated one, my alarm would not be 
as great. But we have seen far too many instances of such "executive 
privilege." Witness the continuing inability of the Congress to par- 
ticipate in the vital decisions affecting the Vietnam war. Witness the 
refusal of the executive to supply documents needed by the Senate 
in carrying out its constitutional duty to advise and consent to presi- 
dential nominations. All of these things are indicative of a major crisis 
confronting the Congress. That crisis is an inability to obtain the in- 
formation needed to govern today's complex and technological society. 

My suit was filed in part to secure a judicial construction of the Free- 
dom of Information Act that would guarantee Members of Congress 
the unlimited right to seek and obtain information in the hands of 
the executive. I believe that that act in its present form sets forth 
certain exemptions from disclosure that apply to members of the pub- 
lic, but that these exemptions do not apply to Members of Congress. I 
hase this conclusion on the language in 5 U.S.C. 552(c) which states 
that the act "is not authority to withhold information from Congress." 
I also base my beliefs on the debates and proceedings that led to pas- 
sage, of the act. Whether I am right in this contention, of course, is one 
of the issues now before the Supreme Court. 

^ If this committee — as a result of the pending Supreme Court deci- 
sion, or its own study — as a result of these hearings concludes that the 



3099 

act in its present form does not provide such a right of access to Mem- 
bers of Congress, I suggest appropriate language to insure this right 
be included in any bill the committee may report and recommend 
for passage. 

Suggestions have been made which would recognize a right in the 
executive to withhold certain information from Congress. I believe such 
proposals concede far too much power to the executive and authorize 
the withholding of far too much information. In my opinion, the 
amount of information which the executive branch can validly with- 
hold from Congress is very limited indeed. Although the executive 
consistently asserts a so-called executive privilege supposedly based on 
constitutional principles, I believe that no such constitutional privilege 
prevents Congress from obtaining any information it needs for legis- 
lative purposes from the executive branch. Of course, this is condi- 
tioned upon the fourth amendment with its protection of the right of 
privacy. Congress cannot constitutionally obtain information the dis- 
closure of which would constitute an unreasonable invasion of privacy. 
My point here is that Congress, in order to fulfill its article I powers 
to* legislate, has the constitutional power to completely regulate con- 
gressional access to executive branch information. 

Although I would concede as a matter of policy that there is a very 
limited category of documents which Congress should not seek from the 
executive branch, as in other areas of legislation, definition of this 
category and precise linedrawing is quite difficult. I frankly think it 
would be impossible to draft statutory language defining with any ac- 
ceptable precision the category of documents I would permit the execu- 
tive to withhold from Congress. I sense only that in some cases there 
may be some documents whose disclosure I would not compel. 

Bather than focusing excessively on the nature of documents which 
the Executive might withhold from Congress, I suggest the committee 
should properly focus on the procedures to be followed when a congres- 
sional request for information is made to the executive branch. Here 
I would suggest the broadest possible right of access to individual 
Members of Congress. This right should be secured by an appropri- 
ately drawn statute and enforceable by individual Members in the 
courts. First, I would require that any refusal to supply any informa- 
tion to a Member of Congress should be made by the President him- 
self, and then only to permit a decision to be made by a court. There 
should be a requirement of promptness in the release of information 
to a Member, and a fixed deadline for the President to seek court 
action. I would not attempt in such a statute to define with precision 
the categories of any documents immune from disclosure. I would in- 
stead state in the strongest possible terms the priority of Congress' 
right to obtain information. I would then refer to countervailing fac- 
tors which might in certain exceptional circumstances justify non- 
disclosure. I would suggest the court decide on a case-by-case basis 
whether disclosure of the particular information sought is required. 
If possible, I would also make clear that decisions made by courts 
woukl form a body of precedents that must be followed by Federal 
officials subsequently, so that there will be no repeated delays in grant- 
ing the data requested. And most important, I would authorize the 
Court to require a Member of Congress to treat the information with 
confidentiality, perhaps even requiring closed sessions of congres- 



3100 

sional committees of the House and Senate. But there should also be 
restrictions on this kind of requirement. Confidentiality should be 
authorized only in exceptional circumstances. 

This process would not constitute "Executive privilege'" but instead 
would in effect state that no such doctrine exists. The President would 
not be empowered to withhold any information from Congress. This 
could be done only by a court at the President's request. Penalties 
would be prescribed for Federal officials who violated the statute or 
court decisions. 

I recognize these thoughts are somewhat general and imprecise. But 
the important themes are simple. First, the emphasis should be on a 
broad general right of Congress to obtain information ; not any right 
of the Executive to withhold such information. Second, the narrow 
category of documents which might be withheld should not be de- 
fined in advance, but should be determined on a case-by-case basis. 
Third, determination of what documents the executive branch might 
properly withhold from Congress should be made by the Federal 
courts, not a special agency established to administer Freedom of In- 
formation Act functions. 

This third suggestion is in my mind especially important. I fear that 
an expert agency established solely to administer the Freedom of In- 
formation Act would become far too accustomed to secrecy, classifi- 
cation, and withholding. Inevitably it would tend to favor withhold- 
ing rather than disclosure. On the other hand, Federal courts, whose 
traditions are deeply rooted in openness and public disclosure, would 
perhaps be more likely to limit severely the Executive's attempted 
withholdings from Congress. Additionally, placing the responsibility 
on the Federal courts would enable the decisionmaker to rely on a broad 
spectrum of experience rather than an excessively narrow familiarity 
with governmental documents alone. 

I would also suggest that any such procedure place an extremely 
high burden of proof on the agency which seeks to withhold informa- 
tion from Congress. As my own case demonstrates, the attempts to 
place such a burden on the Executive in the present act may not be 
sufficient. 

In conclusion, I commend this committee for its attention to a most 
important problem in our society. We have all become aware of the 
crucial need for facts and intelligent information as a necessary con- 
dition for responsible Government. Unfortunately, the factfinding 
abilities of Congress are far more limited than those of the executive 
branch. Rather "than compete through wasteful duplication and over- 
lap of expert agencies, I seek to employ the executive branch capa- 
bility in the assistance of congressional function. In my view the 
primary responsibility for governing this country rests with Congress, 
not theexecutive branch. I thus see little justification for withholding 
of information from Congress. The question is basically one of trust. 
Who do we trust? The thousands of nameless, faceless, executive 
officials whose responsibility to the people is limited? Or the 535 
elected Members of Congress and U.S. Senators and their staffs who 
are directly accountable to the people? In my mind the answer is a 
simple one. Congress must have access to executive information. 

Thank you very much. Mr. Chairman. 

Mr. Mooritead. Thank you very much. Mrs. Mink. I think this is a 
superb statement. You have told this subcommittee in words better 



3101 

than anyone else has done the dimension of this problem of informa- 
tion. It is a crisis of constitutional dimensions. If we are to have the 
Congress as a truly coequal branch of Government, with power to 
represent the people, we must have access to information — either by 
setting- up duplicating agencies, as you suggest and reject, or by 
having virtually total access to any information which the experts in 
the executive branch have obtained. 

In connection with your testimony, we also had the problem of ob- 
taining the environmental report on the supersonic transport. We 
were asked to vote on this issue and vote blind without any knowledge 
of a governmental report paid for by taxpayers 1 money. Yet we are 
the people that, under the Constitution have to raise the taxes from 
other citizens and spend it for them. But in this case, we just were 
flying blind. 

I also appreciate veiy much your suggested remedies in addition 
to your sounding the word of crisis here today. 

Mr. Horton? 

Mr. Hortox. Mr. Chairman, thank you. I, too, want to thank you, 
Mrs. Mink, for a very thought provoking and a very fine statement. 
I think you have spotlighted the problem that we have been discuss- 
ing here for many weeks and the problem is how do we get informa- 
tion for Members of Congress, that critical information that is so 
needed. 

I also note that you make reference to an issue that I have raised 
many times, and that is that there is a distinction between informa- 
tion that should be made available to Members of Congress to assist 
them in carrying out their legislative responsibilities and information 
which should be made available to the public. There is a difference and 
it is an important difference, an important distinction. You also touched 
on the subject of maintaining a prohibition on Members of Congress 
against making public information given to them in confidence. In 
other words it would be thwarting the purpose of any act that might 
make the information available to Congress, although not to the public, 
if Members of Congress could get the information and then make it 
public, I am interested in how you can effectively enforce such a 
limitation and that is a subject which I think we haven't solved yet. 
You did give some direction to it but it is not precise enough, I am 
sui-e you will agree, as to protect that interest. But I think that this 
is a very fine statement that you have given and it does, I think, out- 
line very well what this problem is. You have given us some very, as 
I said, thought-provoking suggestions as to how to solve the problem. 
Your idea about going to court for the decision is also very intriguing. 
That idea has not been suggested. There have been other approaches 
but the idea of going to a court for decision on it, to the district court, 
has not been suggested and I think that is something that will involve 
additional study. 

I want to take this opportunity again to thank you. 

Mrs. Mink. Thank you very much. 

Mr. Mooriiead. Thank you, Mrs. Mink. The people of Hawaii are 
very fortunate to have you as their spokesman here in "Washington. 

Mrs. Mink. Thank 3-ou. Thank you very much. 

Mr. Moorhead. Mr. Keller, would you and Mr. Stovall and Mr. Duff 
resume your place at the witness table ? 



3102 

Mr. Horton. I have to leave and our minority counsel is detained at 
another hearing, unfortunately. I am going to leave it up to Mr. Keller 
if he feels that you are browbeating him. Because I have to leave I am 
going to ask him to let me know and I will follow it up at a later date. 

Mr. Moorhead. You will beat my brow ? 

Mr. Horton. That is it. 

STATEMENT OF ROBERT F. KELLER, DEPUTY COMPTROLLER GEN- 
ERAL OP THE UNITED STATES; ACCOMPANIED BY OYE V. 
STOVALL, DIRECTOR, INTERNATIONAL DIVISION; JAMES A. DUPE, 
ASSOCIATE DIRECTOR, INTERNATIONAL DIVISION; AND JAMES 
E. MASTERSON, SENIOR ATTORNEY, OFFICE OF THE GENERAL 
COUNSEL— Resumed 

Mr. Moorhead. Mr. Keller, you speak in your testimony that Con- 
gress recognized the GAO would have to have complete access and 
you quote a statute in which it says "any books, documents or papers 
or any record of any such department or establishment." We couldn't 
write much stronger language than that, could we ? 

Mr. Keller. No, sir. In fact, the only restriction in that statute is 
expenditures under section 291 of the revised statutes which I ex- 
plained a little earlier has been interpreted to be confidential funds 
in the Department of State. They are very small compared to other 
expenditures. 

Mr. Moorhead. What sort of access do you have to documents in 
the Central Intelligence Agency ? 

Mr. Keller. None. 

Mr. Moorhead. I beg your pardon. 

Mr. Keller. None. A number of years ago we were doing some 
audits of its above-board activities but in its covert activities we could 
see nothing except the certificate signed by the Director. Yet the im- 
plication was that GAO was auditing CIA. So we discontinued our 
audit at the time. We have performed no audit at CIA for several 
years. 

Mr. Moorhead. And is that by special statute, a statutory 
exemption ? 

Mr. Keller. Yes; the statute provides that certain expenditures 
can be made by CIA. on the certificate of the Director of CIA. In 
other words, there is no documentation furnished. That is a pretty sub- 
stantial part, as I recall. 

Mr. Moorhead. So it is GAO's opinion that they couldn't carry on 
an effective audit so why give the appearance of one when it won't 
be real ? 

Mr. Keller. Yes, sir. That took place, I guess, 7 or 8 years ago. 
We advised Congress we were no longer going to do any type of 
audit. 

Mr. Moorhead. On page 2, the second line, "GAO's policy of in- 
sisting on generally unrestricted access." Why the word "generally"? 

Mr. Keller. Mr. Chairman, if there is a way where we can work 
out getting the information needed without access to all of the files, 
we would be open to that. For example, if an agency said we want to 
look at this report and maybe take out something that we don't think 



3103 

ought to be in the general public, we might say OK, but we want to 
see the file before they start screening it out. 

Mr. Moorhead. On page 4 of your testimony you indicate that GAO 
is having increasing difficulties in obtaining information it needs from 
the executive branch. 

From your vantage point, what do you think is causing this greater 
secrecy in government ? 

Mr. Keller. Our problem is primarily in the international or foreign 
affairs area both in DOD and in State. I think there is a great sen- 
sitivity concerning our relationships with foreign countries. To be 
perfectly honest there is a sensitivity between Congress and the exe- 
cutive branch on the handling of foreign affairs and I think all of 
this has entered into the picture. 

We recognize that we can't expect the agencies to give us any more 
than they would give to Congress. So if the executive branch is having 
a problem with Congress, say, for example, in the handling of foreign 
affairs, and they are starting to tighten up a bit, we are also going to 
be on the receiving end. Now that is my own opinion. I think these 
factors enter into the picture. 

Mr. Moorhead. Well, since GAO is an arm of the entire Congress,, 
of all 535 Members of Congress, shouldn't any denials of information, 
be required to come directly from the President who is the only con- 
stitutional coequal branch of the Government rather than from lower 
executive branch levels ? 

Mr. Keller. Well, we would like to see it that way but in many cases 
it is the delay before we get to the final denial that is really hurting 
us. By the time yo.u get the final denial perhaps we have long passed 
the point in our review where the information will do us any good. 

You will take note that the directives which have been put out by 
DOD and State do not say flatly to refuse to give GAO a certain type 
of document. They say don't give it out in the field, refer it into us and 
we in turn will refer it up the line. Now that is where you get into 
the real problem. You could probably push it all the way up to the 
President to make the determination of executive privilege. I think 
there would be a great advantage in finding a mechanism to have the 
President really make these decisions on an individual basis. 

Mrs. Mink very pointedly brought that out and I think it is a very- 
good point because two things happen under those circumstances. 
First, we just don't run to the boss with every problem. Second,^ I 
think that the President, any President, would not like to exercise 
executive privilege too often because it does have its repercussions 
from a political standpoint ; and I use political in the highest sense of 
the word. 

Mr. Moorhead. When something is labeled "tentative planning: 
data," what does that mean to the GAO, especially in an auditing 
sense ? 

Mr. Duff. I would like to answer that as to how they apply it. It is 
very difficult. We don't see what they consider tentative planning data 
that they do not make available to us. Where the problem comes in 
and why we need this planning data is a result of the incremental 
funding of programs. That is, when they prepare a program and 
justify a piece of equipment in a country, more than likely that is 
going'to be funded over a number of years. In order to review the justi- 



3104 

fication and satisfy ourselves that it was within the program guidance 
we necessarily have to look at the total requirement. That is contained 
in documents which they consider future planning information. And 
that can he applied in this particular area to practically any document 
leading up to the decision of including it in the program. 

Mr. Mooehead. Mr. Keller, I understand from your testimony that 
this problem of delay is the favorite gimmick that is used to deny you 
timely information. 

Do you have any suggestions for any cure to that ? 

Mr. Keller. I don't believe so, Mr. Chairman, other than the one 
that T mentioned a little earlier of perhaps an overall limitation on the 
use of funds if information isn't provided within a certain number of 
days, or really require the agency to get a written statement from the 
President in each individual case. 

What disturbs me more than anything else with the invoking of 
executive privilege is that in both cases we have had in the last year, 
the language used by the President was fairly broad. It applied to those 
individual cases. But the language can be applied to many similar plan- 
ning documents for other countries. It does not force another determi- 
nation by the President, Whether or not you can legislate to require 
the President to make individual determinations on executive privi- 
lege I don't know, except to couple it with a cutoff of funds if he does 
not, 

Mr. Moorhead. I personally believe that that directive of March 15, 
1972, violates the letter and certainly the spirit of the April 7, 1969, 
letter and recommendation which Mr. Nixon sent to Congressman Moss 
who was then the chairman of this subcommittee, . 

Finally, Mrs. Mink said that this problem is so important that it is 
reaching constitutional dimensions. I think that your testimony cer- 
tainly points that out. 

You say on page 8 that executive action has seriously interfered 
with the performance of our responsibilities, that there is increased 
risk — this is page 9 — "of our making reports without being aware of 
the significant information and the increased risk of our drawing con- 
clusions based on only partial information," and, finally, the last page, 
"the actions by the executive in withholding information of documents 
has seriously impaired our capability to effectively review and evaluate 
those programs or activities described in this statement." 

In other words, I take your testimony to be that the Congress, which 
relies on the General Accounting Office in so many fields, had better 
realize that at least in certain areas — because of the withholding of 
information from the arm of Congress — that this arm cannot be com- 
pletely relied on in certain areas to do the kind of job that you think 
that the GAO should be able to do. Would that be a correct statement I 

Mr. Keller. Yes, sir; I feel quite strongly about it because I think 
Congress should know when we are not getting complete access. We 
appropriately qualify our reports, but on top of that I think it is a 
very bad situation if information is denied because the General Ac- 
counting Office just cannot operate without access to information of the 
agencies. As pointed out, in most cases, we have had very good cooper- 
ation, but 10 years from now the situation could be reversed. You 



3105 

never know what is going to happen. So I think it is very important 
not only that we in GAO keep this issue alive and try to work out 
access problems whenever we have them, but also that we receive your 
help and support in this area. 

Mr. Moorhead. That is one purpose for these hearings today and I 
hope that we can acquaint the other Members of Congress with this 
difficulty you are facing and get support of a majority for whatever 
action should be taken. 

Mr. Stovall. Mr. Chairman, in reaching for possible ways in which 
the situation might be improved, if there were some way perhaps legis- 
latively to provide for a written request from the GAO to any agency 
representative, starting the running of the time period relating to the 
cutting off of funds or some type of action that would overcome this 
stairstep type of upward referral. If some way could be found to deal 
with this from the basis, from the point of the first inquiry, the type 
of situation that Mr. Duff was referring to, then I think as a practical 
thing we would be in a much, much better position. It would, I sup- 
pose, require legislation. 

Mr. Moorhead. Yes, I think legislation would be necessarv- 

Mr. Phillips? 

Mr. Phillips; Along this same line, Mr. Chairman, as to informing 
Congress of this problem, I doubt that a great many individual Mem- 
bers are aware of the difficulties that GAO is having in obtaining 
information from executive departments and agencies — and not just 
State or Defense — as you have indicated here in your testimony, many 
other domestic program areas are affected. 

One of the ways to call this to the attention of other Members of 
Congress might be to put Mr. Keller's statement in the Congressional 
Record with some appropriate remarks. At least there would be an 
opportunity for every Member to read it that way and very few cer- 
tainly would know it from reading the daily press. 

On this question of IES that you described on page 11. Air. Keller, 
is this the current position of IRS, has it changed any at all since 
1968? 

Mr. Keller. No. sir ; it has not changed and they are pretty adamant 
in their position that they don't think GAO has any business in the 
Internal Revenue Sen-ice. They base their position on section 6406 of 
the Internal Revenue Code, which is in title 26 of the United States 
Code 

Mr. Phillips. I have just read it here and I can't see anything in 
reading that would deny access to GAO for the purpose 

Mr. Keller. They say this prohibits any administrative review of 
decisions. "We are not trying to do that. 

Mr. Phillips. That section deals with individual taxpayer's mat- 
ters — whether or not there is a claim against them or whether there 
has been fraud. Mr. Chairman, would it be appropriate to put in the 
record at this point the text of the two sections of the Internal Revenue 
Code that have been cited here on page 11 in the IRS letter to the 
Comptroller General ? 

Mr. Moorhead. I would think so and without objection it is so 
ordered. 



3100 

(The document referred to above follows :) 

Internal Revenue Code 

'section 6406. prohibition of administrative review of decisions 

In the absence of fraud or mistake in mathematical calculation, the findings 
•of fact in and the decision of the Secretary or his delegate upon the merits of 
any claim presented under or authorized by the internal revenue laws and the 
allowance or nonallowance by the Secretary or his delegate of interest on any 
■credit or refund under the internal revenue laws shall not, except as provided in 
subchapters C and D of chapter 76 (relating to the Tax Court), be subject to re- 
view bv anv other administrative or accounting officer, employee, or agent of the 
United States. Aug. 16, 1954, c. 736, 68A Stat. 792. 

Historical note 

1939. Internal Revenue Code. — Similar provisions to this section were con- 
tained in section 3790 of the 1939 Internal Revenue Code. 

Derivation.— Section 3790, I.R.C. 1939, was derived from Act Feb. 26, 1926, c. 
27, § 1107, 44 Stat. 113. 

Similar Provisions. — Provisions similar to those in section 3790, I.R.C. 1939, 
were contained in the following prior Revenue Acts : 

1924— June 2, 1924, c. 234. § 1007, 43 Stat. 340. 

1921— Nov. 23, 1921, c. 136, § 1313, 42 Stat. 313. 

Text of Revenue Acts. — Complete original text of Revenue Acts of 1924 to date, 
see volumes "Title 26 — Internal Revenue Acts". 

Legislative History. — For a comprehensive analysis of this section as con- 
tained in House Report No. 1337, Senate Report No. 1622, and Conference Re- 
port No. 2543, which accompanied the Internal Revenue Code of 1954, see pp. 
4560, 5230 of the 1954 U.S. Code Cong, and Adm. News. 

Notes of decisions 

I/iorary reference. — Internal Revenue C=> 1982. C.J.S. Internal Revenue § 856. 

/. Generally. — Determination of Commissioner as to his authority will stand 
unless plainly inconsistent with language of Internal Revenue Code. Megibow 
v. C. I. R., C.A. 3, 1955, 218 F.2d 687. 

2. Presumptions. — The determination of the Commissioner is presumed to be 
-correct, and the burden is on the taxpayer challenging such determination to 
establish the incorrectness thereof. Oberwinder v. C. I. R., C.C.A.8, 1945, 147 
F.2d 255. 

The Commissioner's determination in income tax matter is presumptively 
correct, but there are limits to such presumptive correctness. U.S. v. State Street 
Trust Co.. C.C.A.Mass.1942, 124 F.2d 948. 

A determination by Commissioner is prima facie correct. Herskovits v. C. I. 
JR.. C.A.A.1940. 110 F.2d 272. 

The general presumption of correctness of Commissioner's determination does 
not constitute substantive evidence in case, and effect of such presumption is 
onlv to change burden of going forward with evidence. Woodward v. U. S., D.C. 
Iowa 1952, 106 F.Supp. 14, affirmed 20S F.2d 893. 

In action to recover capital stock taxes paid, determination of Commissioner 
is presumptivelv correct and burden is on taxpayer to prove tax nonliability. 
Allen v. Rogan, D.C.Cal.1941, 39 F.Supp. 424. 

3. Change of decision hy Commissioner. — Commissioner who granted tentative 
refund allowance could change his ruling even on claim as made, and any time 
thereafter. Sherwin v. U. S.. C.A.Cal.1963, 320 F.2d 137. certiorari denied 84 S.Ct. 
481. 375 U.S. 964, 11 L.Ed.2d 420, rehearing denied 84 S.Ct. 796, 376 U.S. 946. 11 
lj.Ed.2d 771. 

That government made tentative allowance, without reaching final agreement, 
granting defendant taxpayer's claim for refund for 1950 in accordance with tax- 
payer's contention that he was in business of promoting corporations, did not 
preclude government, in income tax evasion prosecution, from denying that tax- 
payer was in that business in 1951 with respect to corporation whose losses tax- 
payer sought to claim as personal operating loss. Id. 

If the statute of limitations has not run against reassessment of income tax 
by the Commissioner, he may cancel a deduction taken in one year for a tax 
which the taxpayer has accrued or paid, when the tax is refunded in a later 



3107 

rear because it was unlawfully imposed. Ben Bimberg & Co. v. Helvering, CCA. 
1942, 126 F.2d 412, certiorari denied 63 S.Ct. 32, 317 U.S. 641, 87 L.Ed. 516. 

4. Judicial review. — Findings of Commissioner in making tax assessment, 
wbere reviewable, constitute only prima facie evidence. Williamsport Wire 
Rope Co. v. U.S.. 1982, 48 S. Ct. 587, 277 U.S. 551, 72 L.Ed. 985. 

Where it could not be determined whether expenditures of taxpayer were made 
for allowable deductions or not, Commissioner's determination with respect to 
such matter would be sustained in taxpayer's action to recover back income 
taxes paid. Johnson v. U.S., 1941, 39 F.Supp. 103. 94 Ct.Cl. 345. 

Supplementary index to notes 

3a. Notice of deficiencies. — Act of director in issuing notice of additional defi- 
ciency in federal income taxes did not violate this section precluding adminis- 
trative or official review except by tax court of findings of fact in and decision 
of the Secretary or its delegate on merits of any claims presented under or au- 
thorized by internal revenue laws on theory that notice was initiated by the 
Justice Department since Justice Department attorneys who were representing 
government in taxpayers refund action for same tax years as those covered by 
deficiency notice, were not thereby prohibited from counseling with Secretary 
or his delegate and the Secretary, who issued notice, was not prohibited from 
acting on such advice. Crocker v. U.S., D.C Miss. 1971, 323 F. Supp. 718. 

§ 8022. DUTIES 

shall be the duty of the Joint Committee — 
(1) Investigation. — 

(A) Operation and effects of law. — To investigate the operation and effects 
of the Federal system of internal revenue taxes ; 

(B) Administration. — To investigate the administration of such taxes by 
the Internal Revenue Service or any executive department, establishment, 
or agency charged with their administration ; and 

(C) Other investigations. — To make such other investigations in respect 
of such system of taxes as the Joint Committee may deem necessary. 

<2) Simplification of law. — 

(A) Investigation of methods. — To investigate measures and methods for 
the simplification of such taxes, particularly the income tax ; and 

(B) Publication of proposals. — To publish, from time to time, for public 
examination and analysis, proposed measures and methods for the simpli- 
fication of such taxes. 

(3) Reports. — To report, from time to time, to the Committee on Finance and 
the Committee on Ways and Means, and, in its discretion, to the Senate or the 
House of Representatives, or both, the results of its investigations, together with 
such recommendations as it may deem advisable. 

(4) Cross reference. — For duties of the Joint Committee relating to refunds 
of income and estate taxes, see section 6405. 

Aug. 16, 1954, c. 736, 68A Stat. 927. 

Historical note 

1989. Internal Revenue Code. — Similar provisions to this section were con- 
tained in section 5011 of the 1939 Internal Revenue Code. 

Derivation. — Section 5011, I.R.C 1939. was derived from Act Feb. 26, 1926 c. 
27. 8 1203(c), 44 Stat. 127. 

Text of Revenue Acts. — Complete original text of Revenue Acts 1924 to date, 
see volumes "Title 26 — Internal Revenue Acts." 

Legislative history. — For a comprehensive analysis of this section as contained 
in House Report No. 1337, Senate Report No. 1622 and Conference Report No. 
2543, which accompanied the Internal Revenue Code of 1954, see pp. 4593, 5279 
of the 1954 U.S. Code Cong, and Adm. News. 

Library references.— -United States<3=>23(5). C.J.S. United States § 26. 

Mr. Phillips. Since we will be having IRS before the subcommittee, 
do you see anything in these two sections that 

Mr. Keller. That is just our position, Mr. Phillips, section 6406 
prohibits any administrative review of individual decisions but that 
isn't our purpose. We don ? t intend to go in there and second guess on 
a compromise of a tax case or refund in an individual case. 



3108 

Mr. Phillips. That would be my interpretation of it too. 

Mr. Keller. But we are interested how they go about auditing re- 
turns. We might have some suggestions for improving their audit. 
With the cooperation of the Joint Committee on Internal Revenue 
Taxation, we are looking at the delinquent accounts not your or my 
individual account, but, across-the-board, how it varies between re- 
gions, what are the guidelines for writing these off and matters of 
that type. 

The other section, 8022, merely gives the Joint Committee on Inter- 
nal Revenue Taxation authority to investigate the administration of 
the tax laws by Internal Revenue. Certainly I don't read that to say 
they are the only ones that can look at it, which is really their argument. 

Mr. Phillips. It seems like they are leaning on two weak reeds. The 
reason I asked, of course, is that since there is now a new administra- 
tion and a new Commissioner of Internal Revenue, I think it is inter- 
esting to note that there is a parallel in the problem areas that you 
point out in your statement of GAO access. In many of the same de- 
partments and agencies there has been a great difficulty on the part 
of private citizens obtaining information under the Freedom of Infor- 
mation Act. I think IRS is perhaps the best example. We have had 
many cases called to the attention of the subcommittee of denial of 
information under the act itself. When the Internal Revenue Service 
testified before this subcommittee last month, we explored some of 
these cases quite fully. I think there is an arrogant attitude here on 
the part of IRS that extends to Congress, the GAO, and the public 
at large. 

Mr. Keller. The exchange of correspondence which I mentioned in 
my statement took place in 1968, but as I recall it the matter was re- 
opened when Mr. Kennedy was Secretary of the Treasury and their 
position hadn't changed any. 

Mr. Phillips. Can you think of any reason why they are reluctant 
to permit an audit of their own internal administration ? I am thinking 
particularly of appropriated funds — almost a billion dollars annually 
to run the agency itself. 

Mr. Keller. Well, they are apparently very sensitive about anybody 
having access to the tax returns. 

Mr. Phillips. They were also reluctant to answer some of our ques- 
tions frankly when they were up here last month. 

Mr. Keller. They are sensitive as to what their methods of audit 
are and how the tax system is policed. 

As I am sure you know, Mr. Phillips, we have close to a volunteer 
tax payment system in this country which is probably different from 
anywhere in the world and it is very successful percentagewise. I sur- 
mise that Internal Revenue does not want anything to happen to 
break down the confidence that exists in the public at the present time. 

Mr. Phillips. Perhaps one of the reasons I can think of is a study 
I read recently of the allocation of IRS funds for enforcement pur- 
poses in which there seemed to be a disproportionate amount going 
to audit small taxpayers, the little guy, small businesses, and a very 
small part of the total going to audit giant corporations. Perhaps that 
is what they are trying to hide. 

Mr. Keller. I do not know ; I can't answer that. 

Mr. Phillips. No further questions, Mr. Chairman. 



3109 

Mr. Cornish. Mr. Keller, would you agree with me that planning 
is a vital management function both in government and in industry ? 

Mr. Keller. Both in government and in industry ? 

Mr. Cornish. Yes. 

Mr. Keller. Oh, yes. 

Mr. Cornish. And it also costs money, doesn't it ? 

Mr. Keller. A great deal of money. 

Mr. Cornish. And a lot of taxpayers' money goes into planning 
activities in Government agencies, I am sure you will agree with that. 

Mr. Keller. Yes, sir. 

Mr. Cornish. And doesn't the General Accounting Office also con- 
duct comprehensive management audits as well as financial audits and 
other types of reviews ? 

Mr. Keller. We do, Mr. Cornish. We really break our audit down 
in three ways. One is financial audits, another is audits for economy 
and efficiency in operations and, the third is what we call review of 
program results, that is, what are the results of the program that is 
being carried out. 

Our program results reviews are based on the idea you can run 
something very efficiently but it may not be worth doing it all. 

Mr. Cornish. Well, I guess you can see the point I am trying to 
hammer home, and it is simply this, that planning is definitely a 
Government activity; it costs money; and it should be examined pe- 
riodically to see how well it is done and whether it is done economically 
and efficiently and with effectiveness. 

Would you agree with my statement ? 

Mr. Keller. Yes, sir. 

Mr. Cornish. You mentioned during the course of your testimony 
something which you refer to as a personal management document. Do 
you recall making that reference? Maybe it was Mr. Duh". 

Mr. Duff. That was in the chronology of the problems we had with 
one document in Cambodia that I mentioned. 

Mr. Keller. Personal management. 

Mr. Duff. That is a term used by CINCPAC. 

Mr. Cornish. Is that the language they used, or is that language 
that you coined ? 

Mr. Duff. No; that was the language they used. They considered 
it a personal management document. 

Mr. Cornish. It would seem to me that the use of such terminology 
would indicate they seem to feel that they have a certain right of pri- 
vacy which goes far beyond personal right of privacy guaranteed in 
our Constitution under the fourth amendment — that there is a Gov- 
ernment right of privacy that applies to officials of the executive 
branch. Do you get that connotation from the language? 

Mr. Keller. They consider a number of their documents that are 
used within a command to be the type of documents that should be 
limited to use by the people in that command. 

Mr. Cornish. Now, earlier, Mr. Duff, I mentioned the lost battal- 
ions in Cambodia. Is it your understanding — and perhaps, Mr. Stovall, 
you might want to enter into this, too — that the agreements, the aid 
agreements that we have, or the aid understandings that we have with 
Cambodia, whether it be military or economic, provide for refund 
claims when our assistance is used improperly and that these are docu- 

76-253— 72— pt. 8 12 



3110 

merits that have the full force of an international bilateral agreement 
between the two countries and both countries solemnly pledge to adhere 
to those provisions ? 

Mr. Duff. I don't know whether the document with Cambodia is 
that precise and I am not that familiar with it. 

Mr. Cornish. Mr. Stovall, isn't that a standard provision in prac- 
tically all aid agreements ? 

Mr. Stovall. That is a usual provision, I believe. I don't have the 
specifics with me but I believe it is true in relation to Cambodia. 

Mr. Cornish. Of course the point I am trying to make here is that 
this involves, if the charge is true — and I understand that it is — this 
involves an improper expenditure of U.S. taxpayers' money and that 
a refund claim should have been presented to the Government of Cam- 
bodia for those expenditures and we should have been reimbursed, and 
I would maintain that very clearly is a matter of interest to the Gen- 
oral Accounting Office and to the Congress of the United States. 

Would you disagree with that contention ? I would hope not. 

Mr. Stovall. It might be that if the committee wishes we could get 
a more specific statement of this from our Far East branch and make 
it available for the record. It might be helpful because we can deal 
more directly with it. 

Mr. Cornish. Well, you would agree that that is a question of econ- 
omy and efficiency in carrying out an international agreement reached 
by the United States with a foreign state ? 
' Mr. Stovall. Yes, indeed. 

Mr. Keller. I think it is a little more than economy and efficiency. 
It is a financial responsibility which you have to make sure is carried 
out. 

Mr. Cornish. One of the things that concerns me about the delay 
question that you made such a point of, Mr. Keller, is that isn't it 
true that one of the major complaints which this committee — and for 
that matter other committees of the Congress have frequently brought 
to the GAO's attention— is the timelag involved in many of the GAO 
reports? Now I understand this has been improved somewhat in 
recent years but there still is a timelag and apparently, if I am not 
mistaken — you may wish to confirm or deny this — the delays which 
you speak of contribute materially to the overall delays in forwarding 
very valuable and vital reports to the Congress. 

Mr. Keller. I don't think there is any doubt about that, Mr. Cor- 
nish. You are correct that we have been criticized for the delay in mak- 
ing our reports to Congress. You are correct that it has improved some- 
what but we have a long way to go and we are working hard to speed 
up this process. But you are absolutely correct that any delay in 
getting access to documents and information naturally results in fur- 
ther delay ami a longer time in completing the job. 

Mr. Cornish. Now, this is of crucial importance ; is it not ? 

Mr. Keller. I think it is important because Congress generally is 
not interested in reports of historical information. 

Mr. Cornish. No, and for that matter 

Mr. Keller. Congress is interested in current operations, some- 
thing that can be done at the time the report is made. 

Mr. Cornish. Yes, that is the important point right there. You put 
your finger right on it. We have authorization bills and appropria- 



3111 

tion bills coming up on the floor of Congress and we need timely infor- 
mation for the Members to make informed decisions about how they 
are going to vote on those bills, on amendments and things like that 
and if there is a delay in the presentation of information then Mem- 
bers of Comrress cannot make these informed decisions. It is too late; 
it is simply too late; and as a result of that situation you have reports 
that are flowing in after actions have been taken on authorizations 
and appropriations bills, and you say "Oh, my gosh, I wish I had had 
this document at the time that measure was up on the floor." I think 
yon would agree this is not an abnormal problem but an everyday 
situation. 

Mr. Keller. Well, Mr. Cornish, I think we have improved but we 
have to improve a great deal more. 

Mr. Cornish. With that caveat which I am certainly willing to 
accept. . . 

Now, on page 7, you mention the instructions which had been sent 
out by the Agency for International Development on March 23, 1972, 
to its operating personnel. 

Mr. Keller. Yes, sir. . 

Mr. Cornish. And down there in No. 3, in that paragraph reading, 
and I quote : 

In lieu of the disclosure of such documents, the President has directed the 
Congress be provided with all information relating to the foreign assistance pro- 
gram and international information activities not inconsistent with his directive. 
Ordinarily, the substantive factual information contained in these documents 
should be disclosed through means of oral briefings, testimony, special written 
presentations, and such other methods of furnishing information as may be appro- 
priate in the circumstances. 

Now, would you agree with me that this is a tremendous exercise, 
a wasteful expenditure of money, to think that officials have got to 
spend hours and, perhaps days, preparing special oral briefings and 
special documents. This costs a lot of money ; whereas they could pre- 
sent the Congress with the original document with maybe a few caveats 
on it that sections X, Y, Z of this document is not an approved execu- 
tive branch position but the remainder of it is ? 

Mr. Keller. Certainly. Mr. Cornish, it entails a good deal more 
expense to do it this way. I think probably one of the problems is sort- 
ing out factual information versus opinions. It is sometimes a very 
difficult thing to do. 

Mr. Cornish. I am glad you brought that up. Now, you may need 
some assistance from Mr. Stovall on this, in all due respect to you, but 
the countrv field submission which this subcommittee was refused, now 
that, Mr. Stovall, would you agree with me that that is essentially — 
the bulk of it — a factual document ? 

Mr. Stovall. Yes, and it, of course, is an essential element of the 
whole managerial operation. On this point also we mentioned on 
page 8, that^even though they go through this waste motion and do 
a screening or summarizing operation, we stated that the end result 
still wouldn't be acceptable to us unless we knew and had means of 
knowing that it was a faithful representation of what was in the 
document. 

Mr. Cornish. Right. One last point, Mr. Chairman. Mr. Keller, to 
me what you seem to be saying in your testimony is that you are doing 
the best job possible with what you have got but you don't know what 



3112 

you have got. And. if you don't know what you have, you can't attest 
to the validity of the conclusions or recommendations or findings which 
you have made. Would you agree that is a fair statement ? 

Mr. Keller. Yes. 

But we are not just accepting screened documents, if that is what 
you are talking about. We are more interested in getting the documents 
themselves and pushing for an assurance, at least satisfactory to us, 
that if any files have been gone through, there is nothing pertinent that 
has been taken out of them. 

Mr. Cornish. We work on — as you know — many investigations 
which are somewhat similar to yours in character, and I can tell you 
from my own personal experience that the absence or the omission of 
certain information has made some of my work totally useless and 
incorrect. 

Mr. Keller. It certainly could happen, there is no doubt about it. 

Mr. Cornish. Thank you, Mr. Chairman. 

Mr. Moorhead. Mr. Phillips? 

Mr. Phillips. I think we should point out one good example of this 
whole question of partial access, and that is in regard to the study 
which GAO recently conducted at the request of our subcommittee on 
the cost of administering the security classification system. This was 
in an attempt to put a dollar sign on the tremendous costs that are in- 
volved in all aspects of security classification. The study was requested 
last summer after out- initial hearings into this area, and GAO did 
what it thought was a fine job, despite the fart that they could not 
obtain much of the information that is vital to an accurate picture of 
what the cost of the classification system really is. One big item that 
was not obtainable from any of the departments in detail was the ques- 
tion of what it costs for security classification measures carried on by 
Government contractors. This probably is the largest part of the total 
iceberg. The total dollar amount that was ascertainable as a result of 
the study was over $126 million a year just for four agencies that were 
selected because they would have the bulk of this type of classification 
activity- — the State Department, the Defense Department, AEC, and 
NASA. 

This is a good example of where repeatedly, and most recently last 
week, GAO tried very hard to get this information from these four 
agencies as to what the contractor costs for security classification were 
and these figures were just not available, they said. The agencies said 
they didn't break them down that way, but we have good reason to 
believe that the cost of that part of the total is probably a great deal 
more than the estimate of $126 million that showed up in the GAO 
report. 

One last question, Mr. Chairman. 

GAO recently conducted an audit of the space shuttle engine con- 
tract administered by NASA. Mr. Keller, are you. satisfied that that 
audit contained full and complete information from NASA that was 
necessary to make a good audit ? Did you encounter the kind of delay 
tactics and so forth you have mentioned here in your statement that 
you often 

Mr. Keller. To my knowledge we did not have any problems with 
NASA. 

Mr. Cornish. That wasn't an addition in this particular audit? 



3113 

Mr. Keller. No, sir. In fact, I think we have had very few problems 
with NASA over the years. 

Mr. Cornish. You would consider this a very routine one compared 
to some others ? 

Mr. Keller. Well, very little is really routine. 

Mr. Cornish. In terms of difficulty in obtaining information. 

Mr. Keller. I don't recall any difficulty at all. If there was any- 
thing serious, I think I would have heard about it. 

Mr. Moorhead. I would like to ask you on another case a similar 
question on the Navy and Mark-48 torpedo. I have your report, which 
is classified "confidential/' I will read you one sentence from a para- 
graph that is marked '"unclassified." And it says, "The June 1971 SAR 
does not overcome one basic shortcoming of previous SARS," frankly 
discussing what is happening in the Mark-48 program. 

Did you have free and complete access to, in auditing that program 
particularly, say, to monitor test results? 

Mr. Keller. We have had no problem with the major weapon sys- 
tems in getting access to information. I think the point that was 
brought out there was with the SAR report itself. We are auditing 
against that. The SAR report is prepared by the Department of De- 
fense, as you know. The SAR report doesn't always point out what all 
their difficulties are, and we are attempting, I believe, in our report to 
point out some of those difficulties. Our point is we think DOD should 
be pointing these things out in their report, 

Mr. Moorhead. In their own report so that you would not have to 
dig through to find these things out? But you were able to dig 
through to your own satisfaction ? 

Mr. Keller. Yes, sir, we have had very good success in that side of 
the Defense Department, so to speak. 

Mr. Moorhead. Thank you. Mr. Cornish. 

Mr. Cornish. Mr. Chairman, Mr. Keller, isn't it true, and I think 
you refer very briefly to this in your testimony, isn't it true that any 
State tax commissioner can go to the IRS and ask to see an individual 
return of a taxpayer residing in that State? 

Mr. Keller. I believe that is provided for. Mr. Masterson has the 
regulations with him. 

This is Mr. James Masterson from our General Counsel's Office. 

Mr. Masterson. Your specific question was if a State commissioner 
of taxation can check the personal returns and see 

Mr. Cornish. There is an agreement, is there not, between IRS and 
State tax commissioners that they exchange information of that sort? 

Mr. Masterson. Yes. I think that it would be the regulation in 
2nCFR301.6103(b)l, (b)(2). Its subject is returns filed in internal 
revenue district within or including State-General inspection. I think 
that is the authority you are referring to. 

Mr. Cornish. I think you will find my statement is correct. This 
matter came up during another investigation conducted by this com- 
mittee : and, Mr. Chairman, I think it is absolutely incredible that a 
State agency can see this type of information, but the General Ac- 
counting Office, the investigative arm of the Congress, cannot. 

Mr. Keller. I want to make sure, Mr. Cornish, you understand in 
my prepared statement that 

Mr. Cornish. I understand that under 



3114 

Mr. Keller. That in performing an audit of a contractor where we 
think we need to look at that contractor's tax returns, for example, 
then we can write to the Director of Internal Revenue and request ac- 
cess and we will probably get it. But that is for another purpose, it 
isn't for the purpose of seeing how effective or efficient a job the In- 
ternal Revenue Service is doing. 

Mr. Cornish. That is the point I am trying to reach. I realize there 
were some other ways of handling some of these other matters. 

Mr. Keller. Yes, sir. 

Mr. Moorhead. Thank you very much, Mr. Keller, Mr. Stovall, Mr. 
Duff. We appreciate your testimony. It was very forthright, very 
strong. I hope that this testimony will help to persuade the Members 
of Congress that we have got to give you more backing and more sup- 
port for the job you are doing for us. Thank you very much. 

Mr. Keller. Thank you, sir. 

Mr. Moorhead. When the subcommittee adjourns, it will adjourn to 
meet on Tuesday, May 23, at 10 o'clock. 

The subcommittee is now adjourned. 

(Wliereupon, at 12 :40 p.m., the hearing was adjourned, to reconvene 
at 10 a.m., Tuesday, May 23, 1972.) 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



TUESDAY, MAY 23, 1972 

House of Representatives, 

Foreign Operations and 
Government Information Subcommittee 
of the Committee on Government Operations, 

Washington, D.C. 

Tlie subcommittee met, pursuant to recess, at 10:10 a.m., in room 
2154, Rayburn House Office Building, Hon. William S. Moorhead 
(chairman of the subcommittee) presiding. 

Present: Representatives William S. Moorhead and John N. 
Erlenborn. 

Staff members present: William G. Phillips, staff director; Nor- 
man G. Cornish, deputy staff director; and William H. Copenhaver, 
minority professional staff, Committee on Government Operations. 

Mr. Moorhead. The Subcommittee on Foreign Operations and Gov- 
ernment Information will come to order. 

This morning we resume our hearings on problems of Congress in 
obtaining information from the executive branch. Last week we heard 
from a number of our colleagues in the House on the subject of so- 
called "executive privilege" in which they outlined cases where infor- 
mation has been denied them. In some cases such denials took place 
at lower echelon bureaucratic levels far short of the invocation of the 
"magic phrase," which President Nixon (like his two predecessors) 
had assured the former chairman of this subcommittee would only be 
personally exercised. 

We also received testimony from Deputy Comptroller General 
Keller, who testified concerning difficulties of GAO in obtaining cer- 
tain types of information from executive agencies. Among the most 
flagrant examples cited by Mr. Keller were those affecting the Internal 
Revenue Service. As Members will recall, the gentleman from New 
York (Mr. Horton) suggested that IRS be called to testify on these 
allegations. Subsequently, a letter was addressed to Commissioner 
Walters to solicit such testimony for Wednesday morning of this week. 
Commissioner Walters will appear with other IRS officials to discuss 
this matter with the subcommittee. In addition to Commissioner 
Walters, the subcommittee will also hear tomorrow morning from 

(3115) 



3116 

Mr. Rady A. Johnson. Assistant to the Secretary for Legislative 

Affairs, Department of Defense, and in the afternoon from Rear 
Adm. Gene R. La Rocque, retired, Director of the Center for Defense 
Information. 

This morning we are pleased to have as our witnesses our colleague, 
Representative Bella S. Abzug of New York and Professor Raoul 
Berger, a leading legal expert on the subject of "executive privilege." 

Will you please come forward? 

Professor Berger has graciously consented to begin his testimony 
and to suspend it when Mrs. Bella Abzug arrives. She had to appear 
before another committee, the Banking and Currency Committee. 

So we are particularly pleased to have Professor Berger with us. 
He is a graduate of Northwestern University, LL.B., Harvard, LL.B., 
he was in charge of appellate matters for the Securities and Exchange 
Commission and Special Assistant to the Attorney General. 

He served as an Associate General Counsel, and then General 
Counsel of the Alien Property Custodian Department during World 
War II. He entered private practice in Washington in 1946. He was 
invited to the University of California in Berkeley as a Regents 
Professor in 1962. He remained several years and left to devote him- 
self to his writing. 

The first fruit of his study is entitled "Congress Versus the Supreme 
Court" and was published in 1969 by the Harvard University Press. 
That press will publish a second book, "Impeachment," in the fall of 
1972. 

He served as chairman of the section on administrative law of the 
American Bar Association and as chairman of its special committee 
on special courts. At present he is a Charles Warren senior fellow of 
the Harvard Law School. 

In 1965 he published a comprehensive study, executive privilege 
versus the congressional inquiry. 

Professor, as a graduate of the Harvard Law School, I particularly 
want to welcome you. and before you sit down I would like to adminis- 
ter the oath. 

Do you swear the testimony you are about to give will be the truth, 
the whole truth, and nothing but the truth so help you God? 

Professor Berger. I do. 

Mr. Moorhead. You may proceed, sir. 

STATEMENT OF PROF. RAOUL BERGER 

Professor Berger. I am appreciative of your kind invitation to 
appear before you because I believe you are engaged in a task that goes 
to the roots of the American Government, whether it is warmaking 
by the President, whether it is his singlehanded control of foreign 
relations, you cannot proceed without information as to what is going 
on in the subterranean depths of the executive branch. I regard the 
sustained effort that this subcommittee has made to gain access to 
such information as a great chapter in the history of Congress. 

What we need is not so much more hearings as some decisive action. 
My concern is going to be with the legal problems that surround ex- 
ecutive privilege. I am satisfied that you know much more than I do 
how painful it is to legislate in the absence of information. With the 



3117 

long months of hearings behind you, I am sure that you are quite 
familiar with many things I am going to state. So if I recapitulate 
some familiar materials, it is because I feel there is the necessity of 
educating the rest of the Congress and even more important, the 
American people. 

You said, Mr. Chairman, and justly so, the magic words — "execu- 
tive privilege." In going through some of my papers last night I dis- 
covered that George Ball, the former Under Secretary of State, 
testifying before the Fulbright Senate committee, said executive 
privilege is a myth; I would add: a myth created by the executive 
branch itself during the 19th century and more importantly very 
recently in our own time. So the first thing it behooves us to do is to 
look at some of the roots of this claim. I think if Congress itself is 
satisfied that it is dealing with an unsubstantial claim it is going to be 
vastly encouraged to insist its own rights. 

Let me begin with the most recent example of how history is ibeing 
manufactured right under our noses, the claim of privilege for Peter 
Flanigan on the ground that he is a member of the White House 
staff. The counsel for the President, Mr. John W. Dean III, explained 
that Mr. Flanigan's immunity was grounded on "long-established 
historical precedents." What are these precedents? When Attorney 
General Rehnquist testified — I forget whether it was before your 
committee or not 

Mr. Moorhead. Yes ; it was this subcommittee. 

Professor Berger. The instances he mustered were the John Steel- 
man case and the General Bradley case in the Truman administration, 
that is to say they go back to about 1950 or 1951. 

Now what were these precedents? According to Mr. Rehnquist they 
were confidential conversations with the President. Would President 
Nixon claim that he held confidential conversations with Mr. Flani- 
gan about the ITT case ? That is inconceivable. So we have a brand new 
doctrine of geographical location. If you are located on the White 
House staff, you have a mantle of immunity. Later I shall return 
to some of the legal considerations that are tied into confidential 
conversations, particularly in my discussion about Mr. Kissinger. 
I shall begin with the separation of powers because this is the rock 
on which the executive branch chiefly builds. Second, I shall examine 
the historical basis of the congressional power of inquiry. Now there 
we have history, as you will find, we do not have a figment of the 
imagination. 

At the adoption of the Constitution, history shows there was a 
power of inquiry that pertained to surveillance of executive perform- 
ance. That is nothing new; it is centuries old. 

Then I shall show there is no comparable history for executive 
privilege and that the earliest "precedents" invoked by Mr. Rehn- 
quist go no further back than the Washington administration. And 
as I shall show, they don't stretch so far. 

Next I shall comment on the recent development of the claim of 
privilege for so-called candid interchange, The executive branch says 
if you compel us to tell you how we are doing things, how we are talk- 
ing them over, we cannot perform so well. In other words, if you 
write a law and then later on ask what is happening thereunder the 



3118 

executive branch says, sorry, you will destroy our candor if we tell 
you what you have asked. 

Then I shall discuss the basis for the claim of privilege for confi- 
dential conversations. I am sure you will be interested in some of the 
historical facts I dug up. 

Finally, I shall comment on the refusal of the Secretary of Defense 
to comply with your request for information under the act of 1928. 
One who refuses to comply with a request authorized by statute is 
violating the law ; he is a lawbreaker. Are you going to sit by while laws 
are being broken? The next question is. What can vou do about it? 

The first appeal of the executive branch, repeated before } 7 ou by Mr. 
Kehnquist, is to the separation of powers. Let me say at the outset that 
is one of the real foundations of American Government ; nothing I am 
going to say is intended to be disrespectful to the separation of powers. 
To the contrary, I wish that when the President goes to Moscow he will 
bear in mind the separation of powers. But the separation of powers 
is not an incantation. Before you reach the separation of powers you 
have to ask, What does it separate ? You have to begin with three com- 
partments, and ask, What does each contain ? Only then can we say, 
these three powers which are distinctly identified are to be kept sep- 
arate. Looking at the separation of powers alone does not tell you a 
thing about what is being separated. You must start by asking the 
question, What were the powers of the Legislature at the adoption of 
the Constitution ; and what were the powers of the executive branch at 
the adoption of the Constitution ? It is for this reason I differ with 
Justice Arthur Goldberg who testified before you in March. Looking at 
article 2 that confers the executive power is like looking into a crystal 
ball. So when Justice Goldberg says "it is true that article 2, vesting 
the executive power of the United' States in the President, necessarily 
implies that certain activities he conducts, either directly or through 
his staff and the executive departments are privileged" he assumes the 
answer. He is assuming there is some magic in executive power that 
insulates it from inquiry. That is precisely the problem that has to be 
answered. How do we find out when we have certain terms, namely, 
the legislative power, the executive power, and the judicial power, and 
the principle of separation of powers? How do we find out what was 
meant by all that? 

We do what the Supreme Court has always done. We look to history. 
When the courts wanted to determine whether they enjoyed the con- 
tempt power — there is nothing said about that power in the Consti- 
tution, and it is a tremendous power — they looked to the practice of the 
English courts. They found that the English courts enjoyed the power 
and therefore they said, all courts, being set up to exercise judicial 
power, enjoy what was a judicial power at the adoption of the Consti- 
tution; namely, the contempt power. By the same reasoning if we 
want to find out what was within the scope of the legislative power, 
we look to history, and we do the same for the executive power, 

I think one can safely say that history discloses an established, 
virtually untrammeled, parliamentary power of inquiry, whereas the 
executive branch — and I want to emphasize this — has not advanced a 
single precedent prior to the Washington administration which showed 
the existence of executive power to refuse information to Parliament. 
The two Washington incidents I will comment on are no precedents 



3119 

at all, yet they have been advanced by the executive branch time after 
time. 

I shall compact a considerable amount of historical fact that is 
spelled out in an article I wrote in 1965 that runs over 175 pages; and 
shall select a few incidents. 

The great William Pitt, speaking in 1742 to the proposed investiga- 
tion of the ousted premier, Robert Walpole, said, "We are called the 
Grand Inquest of the Nation." 

Remember the words "Grand Inquest." They bob up in history time 
and time again. 

Pitt stated, "We are called the Grand Inquest of the Nation, and as 
such it is our duty to inquire into every step of public management, 
either abroad or at home, in order to see that nothing is done amiss." 
"Abroad" has reference to foreign relations. Pitt claimed the power 
of inquiry into whatever the executive was doing. 

Pitt's statement was echoed in 1774 by James Wilson, second only 
to Madison among the Framers, and said by Professor McCloskey to 
be the finest lawyer in America at the time ; later he was to be a Justice 
of the Supreme Court. Behold what Wilson said : "The House of Com- 
mons have checked the progress of arbitrary poAver, and have supported 
with honor to themselves, and with advantage to the Nation, the char- 
acter of Grand Inquisitors of the realm. The proudest ministers of the 
proudest monarchs have trembled at their censures, and have appeared 
at the bar of the House to give an account of their conduct." 

So here is Wilson fully cognizant of the English history and later 
one of the Framers restating what Pitt said. When he later used the 
words, "legislative power" he knew what it meant. It included vir- 
tually unfettered power of inquiry into executive conduct. Reference 
to the "grand inquest" appears in several ratification conventions. In 
the Second Congress (1792), Elias Boudinot stated respecting a pro- 
posed investigation of the affairs of the Secretary of the Treasury, 
Alexander Hamilton, that "We're now exercising the important office 
of the Grand Inquest of the Nation." And he also noted that the in- 
quiry was "into the conduct of an officer of the government in a very 
important and highly responsible station." George Washington. I 
might add, welcomed that investigation. 

The high priest of the separation of powers who was quoted again 
and again by the founders — his name is cited in every convention 
with reference to the separation of powers, was Montesquieu. Here is a 
man who is the grand architect of the separation of powers. He said, 
"the legislature should have the means of examining in what manner 
its laws have been executed by the public officials." It seems to me if 
Congress passes laws and if there is a duty placed on the President 
by the Constitution, as there is, to faithfully execute the laws, the 
minimal question the Congress must ask is, are you faithfully execut- 
ing the laws ? Montesquieu before anybody ever sat down and drafted 
the Constitution, understood that. So the separation of powers did 
not extend to executive immunity from legislative inquiry. 

All of this was summarized by the Supreme Court in McGrain v. 
Dougherty. And every time you feel at all doubtful about it, it will 
pay you to go back and read the case. That was one of the upshots of 
the Teapot Dome scandal. And I want to remind you that if the Con- 
gress has had its McCarthys, it has also had its Tom Walshs and 



3120 

others who exposed corruption on a grand scale. They have done it 
periodically in our history. 

In McGrain the Court said "power to secure information by such 
investigatory means has long been treated as an attribute of the power 
to legislate.'' 

So the Court is making the point I made earlier, that the power 
of inquiry is an attribute of the legislature. It goes on to say "it was 
so regarded in the British Parliament and in the Colonial Legisla- 
tures before the American Revolution. " The Court also declared there 
is a second branch of the power. It said by Justice Vandevanter that 
an investigation of the administration of the Department of Justice, 
and particularly whether the Attorney General and his assistants were 
performing or neglecting their duties, was within the jurisdiction 
of Congress. In sum, first there is the power to legislate, and Con- 
gress has to have information to legislate; second, there is the power 
to investigate into executive performance; and third, there is the 
power to impeach and, as you know, you may investigate before you 
impeach. 

When you appropriate $300 million, whether it is for Cambodia 
or anything else, you are entitled to inquire whether the executive 
branch is carrying out the purposes which you had in mind when you 
appropriated those funds. That is the lesson of McGrain. 

How did Attorney General Rogers in his 1958 memoranda meet 
that? He met it, in my judgment, in an utterly incredible fashion. He 
said McGrain v. Dougherty involved the brother of the Attorney 
General, Mai Daugherty, a banker, who sought to resist the investi (ra- 
tion, but it is absurd to argue as did Attorney General Rogers that 
the Attorney General himself could not be called in an investigation 
of hiis own derelictions. The Court said Congress can investigate 
whether the Attorney General is neglecting his duties ; and Mr. Rogers 
maintains that although you can investigate the Attorney General, 
you can't call the Attorney General himself. To me that is the height 
of the preposterous. 

We have to remember that this contention is met at the threshold by 
the act of 1789. a statute that was drafted by Alexander Hamilton 
and enacted by the First Congress, which was virtually an adioumed 
session of the convention in which sat, I forget how many framers 
and endorsed bv President Washington. That art required the Sec- 
retary of the Treasury to give information to either branch of the 
legislature in person or in writing as may be required respecting all 
matters which shall pertain to his office. 

So here you have a "precedent" by the most competent interpreter 
we have 1 ever had, because a large number of its members helped to 
write and to ratify the Constitution. And I want to underscore that 
the First Congress, Alexander Hamilton and President Washington 
quite- plainly did not regard this statute as a violation of the separa- 
tion of powers. Washington was the presiding officer of the convention. 
I should add here that both the Secretary of War and the Secretary 
of the Treasury appeared before the House in the St. Clair inves- 
tigation which I shall come to. Now what does that make of the con- 
tention of Attorney General Rogers that only a private person was 
meant bv the Supreme Court, or only a private person can be com- 
pelled to appear? It is utter nonsense. 



3121 

Here we have, it seems to me, unmistakable history. It speaks on 
the face of it, whether you look at Pitt, flames Wilson, or Montes- 
quieu. The act of 1789 speaks plainly that Congress had and was in- 
tended to have a power to require the executive branch to give infor- 
mation. It may be urged that the act only involves the Secretary of 
the Treasury. But in 1854: Attorney General Gushing said, by impli- 
cation of law it is a duty imposed on every department head. Where 
is the comparable history for executive privilege? That is where our 
real starting point ought to be. 

When Assistant Attorney General Rehnquist appeared before you, 
he stated that this privilege was firmly rooted in history and precedent. 
He produced no preconstitutional precedent to show that the legisla- 
te ve surveillance of the executive was in any way limited. Bear in 
mind the importance of pre-Constitution precedent, because it is to 
those precedents we have to look initially to ascertain what was the 
scope, what were the attributes, of a given power. Remember that 
Mr-Grain v. Daugherty looked to Parliament history to determine 
whether there was a legislative power of inquiry. I say to you flatly 
that no member of the executive branch has ever adduced a pre- 
Constitution precedent for limited inquiry. Instead Messrs. Rehn- 
quist and Rogers invoked two incidents during the Washington ad- 
ministration ; namely, the St. Clair investigation and the Jay Treaty 
incident. Let me begin with the St. Clair investigation because that 
is one of the roots of executive privilege claims. 

Gen. James St. Clair had been badly defeated by the Indians; 
there was an uproar in Congress, and it proceeded to investigate. 
The House called on the Secretary of War for documents. Mr. Rehn- 
quist described an excerpt from Jefferson's notes of the Cabinet meet- 
ing, wherein he records that the Cabinet recognized that the House 
is an inquest (the grand inquest) , and has a right to> inquire, but con- 
cluded there may be some matters, disclosure of which would be in- 
jurious to the public interest, and therefore the President must have 
discretion as to disclosure. 

The outcome in this particular case was that there was no reason 
not to disclose every iota of the whole disastrous affair. So every scrap 
of the affair was disclosed by Washington to the Congress. If the case 
is a precedent at all, it shows that President Washington refused to 
sweep under the rug an utterly discreditable business. 

Xow, let's look at this case more closely and see out of what cob- 
webs, executive precedents are built. These notes were private notes 
of Jefferson, they never got into the executive files, there is no record 
that the meditations of the cabinet were ever disclosed to Congress. 
In fact it would have been folly, in a case where you are turning over- 
all the documents to, say, gentlemen, the next time we may not give 
information to you. The world of politics doesn't operate that way. 
And Jefferson was a wise man. So no claim of privilege was ever made 
to the Congress. All you had were Jefferson's private notes which 
were found long after his death. These were what he called his "Anas". 
'"loose scraps," and "unofficial notes'' and were published many years 
later. There this "precedent" slumbered for 150 years until Secretary 
Rogers exhumed it. Now is that a precedent ? 



3122 

If it -was a precedent, it would fly in the teeth of the statute Presi- 
dent Washington himself had signed in 1789. There are no qualifica- 
tions on the power of inquiry in that statute. 

The second historical precedent, to my mind, is even more clearty 
no precedent at all. This, according to Assistant Attorney General 
Rehnquist, was the refusal of President Washington to turn over to 
the House the documents of the Jay Treaty. The treaty created a 
great uproar in the Nation. In fact, Washington didn't even tell Con- 
gress about it for four months because he feared it would be unpopular. 
The papers had been delivered to the Senate but were refused to the 
House because, said Washington, the House had no part in treaty- 
making and hence no right to the papers. In the House, it was said 
that anyone who wants to see those documents can go to the clerk of 
the Senate and read them. 

So Washington refused them to the House on the grounds that 
treatymaking is a function of the President and the Senate, in which 
the House has no constitutional right to participate, hence it had no 
"right"' to the documents. Mind, he didn't say the House had a right 
of inquiry against which he invoked executive privilege. He said the 
Constitution gave the House no right at all in the premises. Do I make 
myself clear? 

He went on to say, I have no disposition to withhold from the Con- 
gress any information to which it is entitled. How does that square 
with the secret Jefferson notes in the St. Clair investigation? Wash- 
ington stated, "I have no disposition to withhold any information to 
which Congress is entitled," and he stated, "Had the House told me 
they intended to impeach General St. Clair, then they would have a 
light to ask for information in respect to that." 

That, by the way, is another important fact : Washington recognized 
the Congress' right to get facts before you impeach. You don't have 
to indict, a man before you investigate. You have a right to investigate 
him before you impeach him. 

So I ask you what kind of a precedent is that for executive privilege ? 
The Jay Treaty incident is a case where all of the documents were 
turned over to the Senate, but where the House had no constitutional 
right, as Washington read the Constitution, to participate in treaty- 
making. He was saying to the House, in other words, you are meddling 
in something you have no constitutional right to meddle in. 

The phrase "executive privilege," as far as my reading goes, is a 
comparatively late term. I wouldn't want to be categorical about it, 
but I can't recall a single incident during the 19th Century where 
those words are used in relation to a case against Congress. 

The executive power was conceived by the framers as a power to 
execute the laws. This is something we must not forget. The framers 
were very jealous in conferring powers. First of all, there were 13 
separate sovereign entities, and most of all the people trusted their 
own elected State representatives rather than the Governors and rep- 
resentatives a]i pointed by the King. The distant Congress was an object 
of suspicion. But they did trust it more than the Executive. The Execu- 
tive was given severely limited powers. When James Wilson was blow- 
ing up the President's powers in the Pennsylvania ratification, he said, 
"we are giving him the power to execute the laws." And among these 
powers was a power to request written opinions from his Cabinet 



3123 

officers. Even that insignificant power was expressly conferred. By 
"executive power" the framers meant "power to execute the laws." 
That is all they meant. 

If that is the case, and I believe historically that is virtually 1111- 
debatable, the legislature must necessarily, in the words of Mon- 
tesquieu, have the means of examining in what manners its laws have 
been executed. 

We need to recall that the prevalent belief at the end of the colonial 
period was that the Executive in the words of Edward Corwin was 
the "natural enemy," it was the "natural enemy, the legislative as- 
sembly, the natural friend of liberty." I explained the reason, the legis- 
lators had been elected by the colonists. And despite Madison's disen- 
chantment with State legislative excesses in the postrevolutionary 
period, he yet concluded that "in republican government, the legisla- 
tive authority necessarily predominates." Today we have the execu- 
tive branch tell Congress, the senior partner in Government, that dis- 
closure to it of certain information is "inappropriate" or "not in the 
national interest." For 2 years now, officials in the Department of De- 
fense have not invoked executive privilege but engaged in stalling 
practices saying, "We don't think it is appropriate for you to know this. 
It is not in the national interest for you to know this." So Congress, 
starting off as the senior partner, is now being treated like an office 
boy and, gentlemen, that is up to you to correct. The Executive won't 
correct it. 

Let me turn to another so-called precedent cited by Assistant At- 
torney General Kehnquist, the case of the United States v. Reynolds. 
This is a 1953 case, private law litigation, where the litigant sought 
disclosure of an Air Force report respecting secret electronic equip- 
ment. (Private litigations are to be distinguished from congressional 
inquiry because, to begin with, the stakes are much higher.) Conceal- 
ment of departmental derelictions, for example, the Teapot Dome 
frauds, or of foreign commitments, may be far more damaging to the 
national interest than a failure of justice in a private litigation. 

There is a long history of parliamentary inquiry into Executive con- 
duct, but there is no comparable history for the right of a private 
individual to disclosure in litigation. The latter is a relatively recent 
development, the roots of which you will find probably no earlier than 
in the 19th century. 

In fact, Reynolds speaks against the exaggerated Executive claims. 
The Supreme Court said it is not for the Executive but for the courts 
to determine whether the circumstances are appropriate for the claim 
of privilege. Although the Supreme Court found there was an alterna- 
tive open to the litigant to get this information and that the litigant 
did not prove his need for disclosure, it still went on to say judicial 
control over evidence in a case cannot be abdicated to the caprice of 
executive officers. 

Indeed, Mr. Rehnquist concedes that the "President's authority to 
withhold information is not an unbridled one." He had the wisdom to 
part company with Attorney General Rogers. But he concluded that 
the "potential for abuse" must still be left "for the exercise of Presi- 
dential discretion." A bridle on the Executive which only he can check 
is no bridle. 



3124 

What kind of investigation would it be if you were halted for in- 
stance, by the Secretary of the Air Force who would tell you, I don't 
think you ought to know this. It would be no investigation at all. This 
is the lesson of Reynolds; it is no precedent for unlimited executive 
privilege. 

The executive branch is asserting a right to determine what is appro- 
priate for Congress to know after the Supreme Court held that the 
Executive has no such right against a private litigant. 

Now I come to the claim for "candid interchange.'' You had a recent 
experience with that claim when you asked for country field submis- 
sions for Cambodia. When access to these submissions was refused, the 
committee invoked the statutory cutoff for aid to Cambodia. At the 
last minute, the President forestalled the cutoff by an appeal to execu- 
tive privilege. A similar rebuff was experienced by the Senate Foreign 
Relations Committee. President Nixon explained that "unless privacy 
of preliminary exchange of views between personnel of the executive 
branch can be maintained, the full, frank, and healthy expression of 
opinion which is essential for the successful administration of Gov- 
ernment would be muted." 

You may remember the occasion — what was the name of that great 
plane — when some of the admirals burst out of bounds to attack the 
views that Secretary of Defense McNamara was advancing. It was 
painful to McNamara but it was healthy, because vast sums were being 
appropriated and the Congress heard the conflict of opinions itself. 
Only by hearing conflicting views can you really chart your course. 

No trace of this privilege claim is to be found until President 
Eisenhower claimed that officials in the executive branch have to be 
free to discuss with each other without being worried that these things 
will be exposed. This is not rooted in history. The principle of "candid 
interchange" was laughed out of court by the House of Lords in 1968. 
As you know, the House of Lords is a Supreme Court of England, and 
in a private litigation case, as Professor Wade of Oxford said, they 
utterly shattered the claim. What they said, in effect, was that every 
professor, every doctor, every professional or businessman has to make 
a report that maybe somebody else may look at with a critical eye, and 
we think he should have sufficient fortitude to do his duty and the 
Government officer must have the same fortitude. So far as the doctrine 
is concerned in private litigation, it has been shattered in England. 
Now the President solemnly invokes against the Congress a doctrine 
which the House of Lords rejected in a private litigation. 

There is a lesson to be drawn from your own experience, and that is 
that it is utterly futile to make a cutoff turn on the President's invoca- 
tion of executive privilege. You recall, if information is not furnished 
on your request, you invoke a 60-day period after which aid shall be 
cut off unless the President invokes executive privilege. Already in at 
least two incidents — one that you experienced and one that Senator 
Fulbright experienced— the Department of Defense prevailed on the 
President to invoke executive privilege. This is not the kind of matter 
for which the President can put the mining of Haiphong aside, for 
instance, in order to decide whether or not you are going to get the 
information. He is going to rubberstamp the departmental recom- 
mendation 9 times out of 10. From now on when you draft legislation, 
make the cutoff depend solely on the departmental refusal. Let the 



3125 

President worry afterwards. He may conclude it costs too much to 
assert executive* privilege — as he did with Peter Flanigan when the 
nomination of Richard Kleindienst was at stake. Base your bill on the 
proposition "no information, no funds." 

Now, I want to look a little more closely, first, at Mr. Peter Flanigan, 
and then at Mr. Henry Kissinger. We have seen that the claim of 
privilege for members of the White House staff is new minted. But 
even the incidents mustered for confidential conversations with the 
President went back only to the Truman administration. So let's look 
at Mr. Flanigan for a moment. Suppose he were charged with violation 
of the Corrupt Practices Act and Congress launched an investigation 
to ascertain whether there were grounds for impeachment. Suppose 
that you believed you had sufficient information to inquire into it and 
you launched an investigation as to whether or not he ought to be 
impeached. Is it conceivable that he could maintain that he was im- 
mune from your investigation? He can't, because impeachment runs 
to "all offices" of the Government regardless of location. And as 
George Washington recognized, even Secretary of the Treasury 
Hamilton could be investigated. 

Now, I want to show that the claim for confidential advice to the 
President— for example, by Mr. Kissinger — is greatly overblown. We 
are so busy with contemporary events, that very few of us muster the 
patience to dig into the old dusty books to find out what really 
happened. There is no need for me to restate Mr. Kissinger's omni- 
presence in foreign affairs. That he has virtually displaced the Secre- 
tary of State in high level functions is open and notorious. Although 
the Secretary, himself, in the words of Chief Justice Marshall, is a 
"confidential agent" of the President, yet he enjoys no blanket im- 
munity from inquiry. The Secretary of State comes periodically when 
you invite him to testify. He is accountable to the Congress. 

Mr. Kissinger, however, is not accountable to the Congress. It is a 
very dangerous doctrine that a man who is making top level decisions, 
is immune from inquiry. 

When Attorney General Rogers referred to confidential informa- 
tion, he cited Marbury v. Madison. But Mr. Rogers himself quoted 
Chief Justice Marshall as saying on the trial of Aaron Burr that "the 
principle decided there was that communications from the President 
to the Secretary of State could not be extorted from him." Even this 
was pure dictum, because Marbury involved a claim to the delivery 
of a commission which had been signed by the President and sealed 
by the Secretary of State, about which there was nothing confidential 
whatsoever. So if Marbury is a precedent at all, it does not, according 
to Marshall, shelter a communication from a high officer to the Presi- 
dent, Indeed, in the Aaron Burr case, a private letter from Gen. James 
Wilkinson to President Jefferson was, in fact, held subject to subpena 
by Marshall, and it was turned over to the court by Jefferson. 

In fact, Marbury v. Madison is absolutely irrelevant to congressional 
inquiry because it was a private litigation, in which the Court could 
justly say it is not our province to supervise the conduct of executive 
affairs. The province of the court is to decide individual cases. But it is 
precisely that investigatory function which is the "province" of Con- 
gress. It may not be the attribute of the courts, but the legislature, 
stretching back to the parliamentary power of surveillance, has a 

72-2.-.:'.— 72— pt. 8 13 



3126 

power to inquire how does the executive conduct its affairs; and as in 
McGrain v. Daugherty, it has power to inquire whether the Attorney 
General neglects his affairs. So Marbury v. Madison is altogether irrele- 
vant to the question of whether Congress is entitled to confidential in- 
formation. As a practical matter you may choose to bypass the conver- 
sations that the President has with General Bradley, but that is not a 
matter of the Executive's constitutional right. A practical considera- 
tion cannot be converted into a constitutional dogma. 

I come to what seems to me the most glaring example of bureau- 
cratic recalcitrance, namely, the refusal of the Defense Department 
to comply with the request of this committee for information under 
the act of 1928. This act provides that upon request of the Committee 
on Government Operations, every executive department shall furnish 
any information requested of its relating to any matters within the 
jurisdiction of the committee. 

The Assistant to the President, Mr. John Ehrlichuian, looking at the 
accompanying Senate report said that the legislation referred solely to 
obsolete and valueless reports which were discontinued. Although he 
prefers a very narrow construction of the act, he states that a broad 
construction would be permissible. His own construction is that Con- 
gress is entitled only to obsolete and valueless discontinued reports. 
He could make that argument more effectively if the statute had been 
made to read : 

Notwithstanding the provisions of this repealer, the committee may require the 
discontinued reports. 

But the Congress went beyond this. It stated in broadest terms, that 
any information relating to the matters within the jurisdiction of said 
committee may be required. 

In my statement, which I will file with the reporter, I have cited the 
Dartmouth College case but I came across a more recent case which 
I would like to read to you, bearing in mind that the language em- 
ployed in the act of 1928 goes far beyond discontinued reports. This 
is styled Barr v. the United States, 324 U.S. 83 (1945) : I quote: 

But if Congress has made a choice of language which fairly brings a given 
situation within a statute, it is unimportant that the particular application may 
not have been contemplated by the legislators. 

Translated, Mr. Chairman, into terms of the 1928 act, if at the time 
of drafting the statute all that Congress had in mind was the discon- 
tinued, valueless reports, it used much broader language, it doesn't 
matter that they had nothing else in mind. A court will still give ef- 
fect to the broad language. It follows that Mr. Ehrlichman's narrow 
construction is unwarranted. What is the next step ' 

Marbury v. Madison teaches us that: "One in whose favor a duty 
runs," that is to say where a duty is imposed upon an officer, "has the 
right to sue for a breach of the duty.*' There it was held that the Sec- 
retary of State was under a duty to deliver a commission, which has 
been signed by the President and that the appointee could bring man- 
damus to compel delivery of the commission. Similarly, the act of 1928 
implies there is a duty to furnish requested information and yon 
shouid be able to bring mandamus. 

I don't want to go into a technical analysis of several of consti- 
tutional questions which lie at the threshold of such a suit. I would 
answer the question, is there a case of controversy by saying that where 



3127 

two people take adverse positions, then you have a controversy. Is it 
;i political question ? I must remind you of Pmvell v. Met 'ormack where 
the Supreme Court decided that the power of the House to judge the 
qualifications of its own Members is subject to judicial review. That is 
as political a question as you can get. I don't think the political ques- 
tion doctrine is really vital today, remains the question of standing to 
sue. If, as Justice Harlan said, you can confer standing on private 
Litigants, you can confer it on yourself. 

80 the real question is. how do you institute such a suit '. We can't 
expect the Attorney General to bring a suit to compel an executive of- 
ficer to comply with a request that runs contrary to executive policy. 
Indeed, his representation of the House would present a conflict of 
interest. You have to be in a position to assert your own rights by your 
own counsel. I remind you that there have been several cases where 
(he Congress had its own counsel. The House had its own counsel in 
Poviell v. McCormack) the Senate was represented at the Bar of the 
Supreme Court by Senator George Wharton Pepper in Myers v. The 
United States. It is bad government and not really constitutional gov- 
ernment that you should have a right to insist upon the performance 
of a duty and yet be powerless to get into court to compel compliance. 
The way to resolve all doubts is expressly to provide for suit and by 
your own counsel. 

I would urge you to amend your statute of 1928 and, at the same 
timi»,, amend the statute of 1021, which gives your watchdog, the Comp- 
troller General, the right to require information, which also has been 
frustrated time and time again. To my own knowledge, the act of 1921 
has been repeatedly violated for at least 12 years. 

Here you have repeated violations of law under a government where 
no man is so high but that he is subject to the laws, including the 
President. You have had repeated violations of law by members of 
the executive branch and haven't provided yourself with an effective 
mechanism to compel compliance with the law. So I would urge you 
enough of studies, enough of hearings, begin some effective action — 
put teeth into the existing statute which requires the executive to give 
you the information. Provide for suit to compel compliance with a 
request under the statute, to be brought on behalf of Congress by the 
counsel for Congress. You might consider having a permanent coun- 
sel who would be attached to the congressional staff, who would de- 
velop expertise, and who would screen all requests for information; 
because I have to say, sadly, not all committee attempts to get infor- 
mation have been equally wise. Recall the practices of Senator Joseph 
McCarthy. When Dean Acheson appeared before Senator Ervin's 
committee in July 1971. he waved the bloody shirt; he coupled Mc- 
Carthy's hearings with Pobespierre and the attempted assassination 
of the King of Morocco. So be sure that those who are assigned to 
this task are capable of saving you from making a false move. I 
would say. further, you should provide for the final review by the 
House. If you want the President himself to put his stamp on the 
claim for executive privilege, you should be evenhanded and provide 
for approval of suit by the House. 

In the House, just as in this committee, there are varieties of opin- 
ion, and there may even be different degrees of talent, so it is good to 
seek the wisdom of the House if you are going to have a confrontation. 



3128 

But, above all, in God's name, do something. Amend these two exist- 
ing statutes which give you the right to require information but leave 
you helpless to get it. Amend them to enable you to go into court. 
The issue of executive privilege presents a boundary question. In 
my view, the boundary being claimed by the Executive is untenable, 
hut it is a claim, and' like every other claim it shouldn't be decided 
unilaterally. It is being decided unilaterally by the President but the 
claim ought to be submitted to the courts. 

When a boundary dispute between the two branches is at issue, said 
Madison, neither branch can decide the issue. The arbiter is the Court. 
Justice Frankfurter and Justice Jackson said in the Youn(/.stowne&se y 
where the President was trying to exercise power reserved to Congress, 
that the decision must be left to an independent arbiter. Such issues, 
said the Supreme Court in Luther v. Borden, are for the courts. 

You may recall that President Andrew Johnson was impeached for 
his failure to comply with the Tenure of Office Act, which was designed 
to prevent him from removing Secretary of War Stanton. The ques- 
tion was, did Johnson have the right to remove his Secretary. The 
Congress was inflamed. Johnson sought to have the issue submitted 
to the Court, where it should have gone, because it had been prejudged 
by the Congress itself. When you have conflicting claims to constitu- 
tional powers, the best way of resolving the dispute is to submit it 
to the courts. I don't for a minute believe that when the two branches 
say this ought to be resolved judicially that the Court will say, no, 
you must tight it out among yourselves. If it does, it is reverting to 
the law of the jungle. First, on your agenda, Mr. Chairman, forgive 
me for emphasizing the first thing is to amend the statutes of 1921 
and 192S to provide for suit to enforce compliance with statutory 
requests. 

I feel satisfied from my experience on the Hill — that is on the Sen- 
ate side — that you would find many members of both parties, Repub- 
licans and Democrats, that would be greatly sympathetic to such a 
move. If it did nothing more than to set a solid group of Senators 
to vote for it, it would publicize the question. It would shock the 
American public into realization that this is a major problem, and not 
just some bickering between the two branches. 

Another way of resolving the issue is by the contempt power. Mr. 
Rehnquist, in testifying before you, conceded that you could subpena 
a member of the executive branch, and that you had the power of con- 
tempt against a recalcitrant official. When I wrote about the matter 
in 1965, 1 shied away from use of the contempt power. I was thinking 
of the confrontation' in the South when Federal Marshals were met by 
State troops. And I thought, what if the Secretary of the Navy calls 
in a file of Marines to resist the Sergeant at Arms. Today that seems 
to me fanciful. 

President Truman himself obeyed the Court in the Youngstown 
steel seizure case. The contempt proceedings should not be regarded 
as a punitive proceeding but rather as a vehicle for getting into court. 
When the committee request for information is not honored, you would 
go to the presiding officer of the House for a warrant to arrest the 
recalcitrant official. The Sergeant at Arms would take him into cus- 
tody and hold him. This gives the official an opportunity to obtain a 
writ of habeas corpus. Then you are in court. 



3129 

Unless you do something decisive. Mr. Chairman, you are going to 
have this controversy drag on. And, if I live so long, I will be back 

12 years from now, and you will still be saying, what can we do about 
it. There is something that you can do about it, and that you ought 
to do about it, because more and more we are coming to realize tl 
executive withholding of information is a dangerous thing. We see 
this in the solo adventures of the President in war-making. If the 
Congress doesn't play a role in government as a partner in govern- 
ment, democracy will founder. And, of course, the root of participation 
is information. 

With that, gentlemen, I throw myself on your tender mercies. 

Mr. Moorhead. I have a feeling you don't have to throw yourself 
on our tender mercies. I think you can handle yourself pretty weli on 
the witness stand. I think this was an excellent, scholarly, and very 
dramatic presentation to this subcommittee. 

You said something about we are dealing with a problem at the very 
roots of the American Government, and then you made a quotation on 
page 6 that said : "The legislative authority necessarily predominates." 
Well, that may have been true back then but there has been a gradual 
erosion, in my judgment, of the first branch of the Government so that 
it is no longer the "first" branch of the Government. 

As a matter of fact, one of the changes that has taken place in our 
democracy is that instead of having representative democracy, we an< 
getting to the point where every 4 years we elect a man who is a dicte + or 
for another 4 years. And the only effective control on him is the fact 
that he has to seek reelection. I don't know whether that fact in his 
second term places any effective restraint upon him. 

The reasons these hearings are important is to try to make the case so 
that the rest of the Congress will understand that our power has 
been eroded, and. second, the most important reason it lias b< • i 
eroded is that information is being withheld from us. Because of the 
lack of information, we just have no real power in the political arena 
on many important issues. 

I understand, Professor, that your recommendation to us is that we 
enact a statute, an amendment of the act of 1921, and 1928 and so forth. 
Just forihe moment, let's make the assumption that we can get that 
statute passed, but we would still like to present the most effective case 
to the courts under existing law. What would you recommend to this 
subcommittee? Should we act under the provisions of section 2954 of 
Title 5 : United States Code and get seven members of this subcommit- 
tee to make a request for a specific document and if it is refused, to seek 
enforcement of that statute in the courts? That statute gives the seven 
members mentioned in this statute standing in court to present an ap- 
propriate procedure, whether it is mandamus or some other procedure. 
What would you recommend? 

Professor Bkrger. I don't want to foreclose that approach but I 
would want to study it more closely. I must candidly tell you I have 
some doubt as to this. We have the case of Reed v. United States, which 
declared that a committee of the Senate could not bring suit without 
authority by the Senate. So you might meet that to begin with. The 
case, by the way. is mentioned in my statement and if you bring such 
a suit you might be met at the threshold with the answer that your 
suit is unauthorized. 



3130 

You might have the same difficulty in a suit by individual Congress- 
men. Of course, a subcommittee can't really represent the whole Con- 
gress because Congress is a body of varied opinions, and expresses it- 
self only when it makes formal action, so I would have doubts about 
that approach, too. Having said that, I would want to study that 
closely and, certainly, your able counsel ought to study it closely and 
see what the difficulties are. But on first blush I would say you might 
have real difficulties. Of course, the normal thing to do would be to 
request the Attorney General to bring suit because he has the author- 
tv to bring suit for breach of the laws, but he won't do this or if he 
does do it, it will be in such a fashion as would be highly unsatisfac- 
tory to you. 

It might be worthy of investigation by your counsel that in the 
Teapot Dome case, Congress was so little confident of the integrity 
of the Attorney General or his subordinates that it directed President 
Coolidge to appoint the counsel; namely, Owen Roberts, who later 
became a justice and Atlee Pomerene. They were both appointed as 
special counsel. You might do this. Congress could request President 
Nixon to appoint special counsel to represent it in a suit against the 
executive branch on the feeling that the Attorney General would have 
conflicting interests because he would have to represent the executive 
branch. This would hit the front pages. Let me make a suggestion : 
some of your requests for information go to bureau chiefs. Thus you 
have lesser men in a department refusing the information, go after 
them. 

Mr. Moorhead. Go after him via a subpena ? Or by the act of 1928 — 
now recodified as 5 U.S.C. 2954 ? 

Professor Berger. By the act of 1928. That is one way. But I would 
hesitate about bringing* a suit on behalf of seven members of your com- 
mittee. I don't know what happened to the Patsy Mink case, 
. Mr. Moorhead. It is now pending before the U.S. Supreme Court. 

Professor Berger. So it would be inappropriate for me to express 
my opinion now, but I do have some doubts about it. If the case comes 
out in favor of Patsy Mink, you have a pretty good precedent for the 
kind of suit we are talking about. 

My suggestion is to bring a suit under the act of 1928 on the ground 
that there has been a refusal to comply with the law. 

Let me ask this question : Wouldn't the House get behind your com- 
mittee and write a letter to the President asking him to appoint special 
counsel to prosecute a violator of the act of 1928, because the Attorney 
General will have a conflict of interests? In other words, he will repre- 
sent Congress as well as the executive branch. Do you think that the 
House would go with you ? 

Mr. Erlenborn. Would the chairman yield \ 

Mr. Moorhead. Yes. 

Mr. Erlenborn. I get the impression from your statement that you 
believe there may be a more immediate and more direct course than 
resort to the statute \ 

Professor Berger. That is right, 

Mr. Erlenborn. That would be by raising the issue through the is- 
suance of a subpena upon failure to respond either by appearing or 
writing'' As I understand it, you would do this through the Presiding 
Officer of the House. You would issue a warrant for the individual's 



3131 

a nest. Would this not be a preferable course? This would then be the 
action of the House. There would be no question as to the right of in- 
dividual Members or the right of the committee acting as a commit- 
tee. It would be the House itself taking this action. Obviously you 
would have to know you have the support of the House before you 
went that far because you just wouldn't get the warrant issued. You 
wouldn't get the issue raised unless you had the support of the House, 
which would be absolutely necessary I would think if you anticipate 
any success. 

With respect to a group of seven Members, or even the entire mem- 
bership of one of the subcommittees of the House, I do not think you 
would be successful if they didn't have the political support of the 
majority of the House. 

Professor Berger. I agree that that is the more immediate course 
but I was directing mvself to the chairman's question about the act 
of 1928. 

Mr. Erlexborn. Well, which would you prefer given the choice? 

Professor Berger. I would prefer the contempt power course for 
this reason, gentlemen. To begin with, you have two precedents in the 
Supreme Court for use of the contempt power. True, they are private 
litigant cases, but Assistant Attorney General Rehnquist, who is a very 
good lawyer, agreed with Congressman Moss that you can bring a con- 
tempt action against an official who is recalcitrant. You might even 
consider working the thing out agreeably, by telling the official, this 
is not punitive; we are not trying to punish you, but to get into court. 
We won't hold you any longer, then you can rush your lawyers into 
court and get a habeas corpus. But that is a matter for you to decide. 

It is a policy question, gentlemen, as to whether you want to do it, 
but certainly the contempt course stands on solid ground legally. The 
course you are suggesting. Mr. Chairman, raises some problems, and 
in dealing with an issue like this, as a man who has practiced law for a 
good many years. I prefer the proven ground. 

Here I will reveal my political naivete. I don't know what the feel- 
ing is in the House. I am confident that in the Senate an amendment to 
the present statute would find ffreat sjanpathy, and might even muster 
a majority because both Republicans and Democrats are united about 
the honor of the Senate. They feel that its request for information 
under the statute deserves to be honored. You are dealing with some- 
thing like home and mother: we can't have any violation of the law on 
any pretext. 

It is ridiculous that we should preach law and order to the men on 
the streets and tolerate officers who flagrantly violate a legal require- 
ment. So you have a good selling point to your fellow Members. If you 
won in the Senate and you get a good group of people in the House 
behind you, you will have a fine start. The public will be educated : it 
will be informed that this is a real problem that ought to be resolved. 
I can't believe that public opinion will sympathize with the lawbreak- 
ers because that is what people who violate the statutes are. So I would 
take a two-pronged approach. I would take the approach of the con- 
tempt power — and, by the way, let me venture a little further. Why 
don't you expand the 19-28 act to include every committee? Why should 
you alone have this right to under this statute? I ask you, wouldn't 
such expansion win you some friends? 



3132 

Mr. Erlenborn. You sound like more than just a good lawyer. You 
sound like a good tactician and a good politician. 

Professor Berger. I am one who has a high regard for politicians. 

Mr. Erlenborx. May I go back to another question as to historical 
precedence and your reference to the parliamentary system and ask if 
that is completely valid in your opinion, historically, in light of the 
fact that in the parliamentary situation, the chief executive officer is 
usually a member of the Parliament. Most of the people comparable 
to the Cabinet Members are Members of the Parliament. It varies in 
the parliamentary situation but usually a majority of them are Mem- 
bers of the Parliament chosen to exercise the executive power by their 
fellow parliamentarians. As a matter of fact, in most parliamentary 
situations, even the ultimate judicial power m&j be exercised, for in- 
stance, by the House of Lords in the final disposition of appeals 
through the judiciary. None of the Parliaments that I am aware of 
have the history of separation of powers that we have in our form of 
Government. So the Executive. I think, in a parliamentary situation, 
must be more responsive to the Parliament or to the legislative body. Is 
that a fair assessment? 

Professor Berger. Well, it is fair as far as the present Parliament 
goes. But the precedent of parliamentary inquiry began at a time of 
Royalist trends to absolutism in the period of James I and Charles I. 
Long before ministers were responsible to the Parliament, they were 
responsible to, and appointed by, the King, and were being investi- 
gated from hell to breakfast. In fact, Francis Bacon said to a person 
placed in an executive post that he should "remember, there is a Par- 
liament." 

I should add that at this time the Founding Fathers had their eyes 
on the 17th century with all its revolutionary ferment rather than on 
the 18th. 

Finally, the Supreme Court said in the MrOrain case, the inquiry at- 
tribute has its roots — this was referring to the Legislature — in parlia- 
mentary history. Parliamentary supremacy was developing in the 18th 
century, and really began to take shape after the 1760's. The framers 
were constantly looking to English practice, whether it was witli re- 
spect to the power of appropriation or the power of the King. 

Nothing is clearer in American constitutional history than that 
the framers and the statesmen who drafted the State constitutions 
before them were bent on cutting the roots of all Royal prerogative. 
They very carefully circumscribed the Presidential powers. Even 
as far as the Presidential power of the Commander in Chief — if I 
may digress for a moment because I was deeply sympathetic to what 
you were saying about erosion of Executive power — the original power 
of Commander in Chief was viewed far more narrowly than it is 
construed by the President today. 

But, to return to the relevant parliamentary history to which the 
framers looked in these matters, it was the 17th century, the anti- 
Stuart history. The power of the Legislature was picked up, lock, 
stock, and barrel from parliamentary history, never mind that you 
now had an independent Executive. They still put the Executive 
under the power of Congress, witness impeachment, so time and 
again they were looking to English institutions. 



3133 

Now, I am not saying to you that there may not prove to be desir- 
able areas of accommodation, and I stress the word "accommodation," 
for you may feel for one reason or another it is undesirable that you 
should press General Bradley to tell you what President Truman 
said to him. But that does not negate the power. What you decide 
to do as a matter of accommodation, and you have done that through- 
out your history, is one thing. The Congress has pretty successfully 
lived with the Presidents, as I read history, but, particularly, in 
warmaking and foreign policy, it is the President that has made it 
hard to live with him. 

Mr. Erlenborx. I was just looking for a quote that I can't find, 
but it is something to the effect that of the three branches of gov- 
ernment, the legislative branch is superior or it predominates. 

Professor Berger. That is Edwin Corwin's opinion. He said that. 
No; that was Madison's, I am sorry. Madison said that in the Fed- 
eralist, I think it was. 

Mr. Erlenborx. Many of us remember the things we learned in 
school about the three coequal branches of the Government. Is it 
your position that among the equals, the greatest of the equals is 
the legislative branch? If you so construe it, I want to agree with 
you. 

Professor Berger. I would say, in George Orwell's phrase, that 
"some are more equal than others." 

Mr. Erlenborx. That is what I gathered. 

Professor Berger. But we are talking now about two different 
periods in history. Take warmaking, Mr. Congressman, there is no 
doubt in my mind — and I have just completed an extensive study of 
it. and others have taken the same view — that the vast bulk of the 
warmaking powers were given to the Congress. The framers feared, 
as James Wilson said, to leave it in the hands of a single man to 
hurry us into war. Can there be any question that all of the powers, 
as James Wilson said, relevant to warmaking, were left in the hands 
of Congress? Can there be any question that the two branches are 
not equal in this respect? 

The Chairman stated there has been an erosion of legislative power. 
I hesitate to use a word like that, because I don't think that is true 
all of the way. Erosion means something has been washed away and 
is beyond recovery: boundaries have been altered. I don't think the 
President can alter constitutional boundaries. Even if the Congress 
desired to abdicate its powers and confer them on the President. I 
don't think they could do that. I think constitutional history makes 
that plain. 

What is happening right now is a great awakening, the sleeping 
giant is stirring and is trying to reassert his place in the sun. Congress 
is trying to resume powers that were conferred on it by the Consti- 
tution. You are not abdicating your powers. You are seeking to resume 
powers the Constitution gave you in express terms. If we are talking 
about warmaking, for example 

Mr. Erlexborn. Well. I would like to carry this a little further. 
Most of our discussion nowadays, generally in the Congress and in 
the country, is relevant to the power of the executive vis-a-vis the 
legislative. Looking down the path you started in saying that we 
are the greatest or the most equal among equals. This can have refer- 



3134 

ence to the judiciary, and. as a matter of fact, many of us prior to 
the more dramatic confrontation between the Congress and the execu- 
tive because of the war in Vietnam, felt that our powers were being 
usurped by the judiciary and that many of the decisions of the judici- 
ary were invading the proper prerogatives of the legislative branch. 
Your suggested recourse against the executive branch seems to have 
to rely on the judicial branch. We are going to wind up through 
habeas corpus and having our authority decided by the judicial 
branch. They are going to decide how we assert our authority, and 
how the executive exerts its authority. So how do we become the 
greater among the equals in that sort of a context? 

Professor Berger. You are making a judgment that I didn't make. 
It is your judgment. 

Mr. Erlexborn. Well, I am thinking of the next fight. 

Professor Berger. Well, with the indulgence of the chairman, it 
so happens I thought about the judicial-legislative confrontation 
before the busing moratorium issue became a subject matter for debate. 
In 1969 I published a book entitled "Congress Versus the Supreme 
Court." which looked to just that sort of struggle: so if you are inter- 
ested in seeing just how I stand on it, you can read that. 

You proceeded from an abstraction which you carried away from 
your schoolday memories; namely, the equal among equals. I don't 
think that can be any more helpful than looking at the abstraction 
of the separation of powers. I mean, you have to look to history. Now, 
it is quite plain — all you have to do is go to the Constitution and 
look at it carefully — that the vast bulk of the governmental powers 
were given to Congress. For example, the power of Commander in 
Chief was just meant to be a power to conduct operations once war 
was commenced. The framers didn't give him power to commence a 
war or anything of this sort. Although the Congress was given vast 
powers, it was feared, and the brake that was put on the legislature 
was not put into the hands of the executive, but in the hands of the 
Court. There is no question about the fact that the legislature was 
not meant to overrule the courts. That is why judges were given life 
tenure. They were given the final power to decide whether laws were 
"in pursuance of' the Constitution. That is the sole grip the court has; 
namely, are the laws pursuant to the Constitution ? You can't reverse 
that. You can't change it. 

As early as 1942. when the reconstructed court took over and was 
going to remake the Constitution, I stated that I didn't like it any 
better when Justice Black read my predilections into the Constitution 
than when Reynolds and Butler read their predilections into the 
Constitution, and I don't want Justice Rehnquist reading his predilec- 
tions into the Constitution. That scares the hell out of me. I want a 
Constitution, as far as possible, that remains what it was intended to 
be. as far as we can discern, by the framers. So I don't want you to think 
that I am all out for a Court that is taking over the policymaking role 
of the legislature, because I am not in that camp. If you want to know 
my views on that, read my "Congress Versus the Supreme Court." 

Mr. Erlenborn. It seems as though in the final analysis the courts 
do come up with possibly the final residual power in reviewing the acts 
of the legislative branch or the executive branch as they interpret the 



3135 

Constitution. The checks and balances system seems to end up with the 
final ultimate authority in the Court. 

Professor Berger. That was the design, subject to amendment of the 
Constitution. If I may presume, yon perhaps are a little too young to 
remember the courtpacking days of 1937. 

Mr. Eruenborn. I read about it. 

Professor Berger. Well, there were a lot of people, including 
Franklin Roosevelt, that were all hot and bothered because the ( Jourt 
was reading laissez-faire economics into the Constitution and was frus- 
trating the then Congress and the will of the people with their debata- 
ble economic and social views. Yei Congress couldn't bring itself to 
pack the Court. Professor Frankfurter at the time wrote to President 
Roosevelt and said the big problem is that people think when the Court 
speaks, the Constitution speaks, and the fact is that when the Court 
speaks the Justices speak. And the public doesn't know that. The pub- 
lic also doesn't know, for example, that the power President Tinman 
used in going into Korea and President Nixon used in going into Viet- 
nam is not a constitutional power. What would be the verdict of the 
public today if they were shown and understood that this is not a con- 
stitutional power ? But that is another problem. 

How to cope with that requires a process of education. What happens 
when you have the courts acting in a way that offends public sentiment ? 
For example, you may find that you can get an act that will limit judi- 
cial decrees respecting busing ; and if the Court cannot read the election 
returns you may find it possible to get an amendment to the same effect, 
because when something becomes deeply offensive, the people react. 

Mr. Erlenborn. Well, if I might just make a brief comment on that. 
The. phrase we hear very often now today is power to the people. The 
fact is the power does reside with the people and always has. 

Professor Beroer. That is right. 

Mr. Erlenborn. Thank you. 

Mr. Moorhead. Professor Berger, you made one point that I think 
should be emphasized, and that was the accommodation by the Con- 
gress to the President in his having a few private advisers whom he 
chose not to have appear before congressional committees. The Con- 
gressional Research Service study showed us that when the first accom- 
modation was made there were only six White House staff advisers; 
this was way hack in lf)?>9, and now it is something like 2,S00. We 
accommodated the President when it was a very small group, and 
where in foreign policy, at least, the recommendations came from the 
Secretary of State who could be called to testify by Congress. But 
now when the number of advisers has mushroomed to 2,20(1 and the 
decisions appear to be made — not only in matters of foreign policy 
but also in antitrust policies and other fields — by this very large White 
House staff' which has now become off limits to the Congress, we are 
faced with a different sort of problem, where this old accommodation 
should end. Is that the thrust of your testimony I 

Professor Berger. Accommodation ends always where the Congress 
decides it will end. If you have the constitutional power and you are 
yielding it. you are really in a position of saying, this is by our grace. 
But I would say the situation that now exists presents a crisis in Gov- 
ernment. Top level decisions are being made in secret and you don't 
know about it until something happens. 



313G 

Mr. Moorhead. And unless we hear some conflicting views, we don't 
know which views are the better views. We didn't know until the 
Pentagon Papers were published that there were serious internal con- 
flicts about the war and advice given to the President that the war 
could not be terminated properly. Thus we didn't have the opportunity 
to investigate, and render the decision to go or not to go — decisions 
which the framers of the Constitution intended Congress to make. 

Professor Berger. Right. 

Air. Moorhead. I even think in the creation of the Department of 
Defense which I would have explored if I had been in Congress at that 
time, might have been an error. Maybe the Congress did have a better 
way to oversee the military budget when the Navy would come in and 
criticize the Army's activities and the Army would come in and criti- 
cize the Air Force's activities. At least, we had knowledgeable people 
criticizing military programs and we could make an intelligent de- 
cision. Now, it is only one group, namely, the Department of Defense 
and the bargaining and dealing is done between the Services in private 
and usually it is back scratching or the "I will support your bomber 
if you will' support my tank.'' So they come up for the bomber and the 
tank and we don't have the criticizing of the tanks and the bombers 
that we used to have. 

Professor Berger. There is one thing that would strengthen your 
views. We know, as George Reedy, who worked closely with President 
Lyndon Johnson, writes in his book, that the President lives in a 
house of mirrors. The people around him can't help but become cour- 
tiers. They tell him what he wants to hear with few exceptions. But 
down here in Congress you could have a heated debate and people 
would be pounding tables because they have strong views and you 
would have a true adversary system. I have learned that adversary 
debate really develops an analysis of the various possibilities, and the 
presentation of alternatives enables the decisionmakers to decide which 
way to go. It is much better than hearing one side. 

I agree, sir, with you and, as a student of recent history and par- 
ticularly in the light of constitutional history, both in foreign rela- 
tions and warmaking, I feel very strongly that a great deal of our 
unhappy situation today would have been averted if there had been 
consultation with the Congress. I feel that had a lot of the moves 
that were urged on the President been debated, had that debate come in 
to the public prints as it should have come, a lot of those actions might 
have been averted. 

National debate is a prerequisite of democracy. You can't have a na- 
tional town meeting, you have the Congress instead. This is where the 
national, conflicting Views find utterance and, if nothing else, you 
would have had a country more united behind the President once the 
decision was made. Instead, the people feel well, it was not our deci- 
sion, and now there are a great many people that are bitter about it. 
This morning's paper carries an item from Kansas, a Republican 
stronghold, that the mood has turned to very sharp hostility to the 
Vietnam war. 

Mr. Moorhead. Professor Berger, recently the Secretary of the 
Treasury, acting as the Chairman of the Emergency Loan Guaranty 
Board, refused the General Accounting Office access to records of 
that Board. Do you think that the General Accounting Office has a 



3137 

legal right to demand and bring suit against the Secretary of the 
Treasury in acting as an arm of Congress ? 

Professor Berger. I believe it is not in the hands of the Secretary 
of the Treasury to decide what the Comptroller General is entitled 
to. In fact, there is an opinion of the Attorney General in 1925 that 
says the Comptroller General is the judge of what he is entitled to, 
so* roughly, you have a law violator in the Secretary, Mr. Connally. 
But what to do about it? You come up against the problem I dis- 
cussed in connection with the act of 1928. In framing those statutes, 
you didn't do what you did with later statutes. For example, if the 
National Labor Relations Board issues an order and there is non- 
compliance, they are authorized by statute to go into court. Shouldn't 
your own watchdog have the same right '. When Mr. Connally refuses 
to comply with a request of the Comptroller General, he is violating 
the plain terms of the statute. He should be hauled before the court. 
But you must amend the act of 1921 to provide for suit. I wouldn't 
dare to go into court personally unless I was sure of my grounds. This 
is going to be a historical controversy so why be impeded by procedural 
doubts? You can state in good conscience that your own watchdog 
is no less entitled than any agency of the Government to a right to 
enforce its order. 

Why not amend the statute to provide for suit by the Comptroller 
General by his own counsel. You might want him to consult you. too. 
before he sues. That is the way, as I see it. to bring this matter to a 
head, and I would urge you to do that. 

I first encountered this some 12 years ago when the Secretary of the 
Air Force refused to the then Comptroller General a report of the 
Inspector General's Office. That was an office that then cost millions 
of dollars a year and had a staff of 1.900 people or maybe 3,000 — I 
don't recall the exact number — and again he relied on the recent pro- 
nouncement by the Eisenhower administration that "if we give you 
this report, the people in the agency won't talk so freely to each other, 
so they will not be as critical of each other." So here was Congress, 
faced with the question, shall we continue this big office of the In- 
spector General? Should we put the function elsewhere? But the 
Secretary stated we can't disclose departmental discussions because 
the Inspector General can't function if we do. Xow, on what grounds 
was that justified? The Secretary invoked executive privilege. In a 
word, the Secretary of the Air Force said that this statute, which had 
been signed by the President, was unconstitutional. That is very high- 
handed to my way of thinking. Here we are 12 years later and you are 
worrying about the same thing. My answer to you. if I may presume, 
is stop worrying. Amend the act and even if you lose the attempt to 
amend, it will be a glorious defeat, because you will publicize the 
problems. 

Mr. Moorhead. Thank you. 

Mr. Phillips? 

Mr. Phillips. Thank you, Mr. Chairman. During the past year, we 
have had a number of incidents involving requests for information of 
White House staff officials. One has involved on two occasions the 
Director of Communications, Mr. Herb Klein. The other involved the 
counsel to the President, Mr. John W. Dean. Another involved the 
Special Assistant to the National Security Council, Mr. David Young. 



3138 

The fourth involved Mr. Donald Rmnsfield, who wears two hats; one 
us Counsellor to the President and one as Executive Director of the 
Cost of Living Council. And in each one of these cases there has 
been the usual formal invocation. But in one instance there was an 
informal invocation of the so-called executive privilege which sup- 
posedly denied them the right to testify before this subcommittee. Now, 
in each case, the reason was that this was a confidential relationship 
between that individual and the President. Of course, in no instance, 
and we made this very clear, was there any effort going to be made 
to inquire into these confidential relationships. We don't want to know 
what conversations took place between these individuals and the Presi- 
dent. What we wanted was testimony on relevant matters of inquiry 
before the subcommittee involving information practices. 

In one case, involving our request for testimony on technical details 
of the new Executive order on security classifications, which Mr. 
Young had helped to draft, executive privilege was invoked. In fact, 
in most all of these cases, the same gentlemen have been available to 
the press in on-the-record press conferences and have superficially dis- 
cussed the types of technical detail that we were interested in. But 
it is frustrating, of course, to this subcommittee not to be able to ques- 
tion and to have direct testimony from these types of individuals. 
What I would like to ask you is, in your judgment, do you know of any 
statute or restriction or limitation which prevents the appearance of 
these types of individuals from the White Plouse staff before commit- 
tees of Congress ? Is there any basis whatsoever for denying them the 
opportunity even if they want to appear to testify before a duly-con- 
stituted committee of Congress? 

Professor Berger. You are asking if an individual — say, Mr. Rums- 
feld wants to appear and the President says he can't, whether there is 
any basis for that restriction. Well, of course we start with the prin- 
ciple that the Chief Executive has control of his own staff and can 
order him not to appear. 

Mr. Phillips. We could subpena ? 

Professor Berger. Sure, there is no immunity from subpena. There 
are no constitutional or statutory restrictions or limitations which 
prevent the appearance of these kinds of individuals in the White 
House staff before committees like this. 

I hope you will find time to look through the last few pages in my 
statement about the confidentiality question, because I examined that 
very carefully. I place little or no credence in claims for immunity 
because of confidential conversations; but I would respect your judg- 
ment that you don't want, as a matter of accommodation, to demand a 
particular discussion between Kissinger and the President. But a claim 
to blanket immunity because an official is a member of the White 
House staff is without any constitutional basis. 

Mr. Phillips. Of course, as former Justice Goldberg testified in 
March before this subcommittee, there are many occasions where he had 
conversations with the President ; but this did not prevent him from 
coming up to the appropriate committees of Congress and giving testi- 
. mony and being able to disentangle himself from questions that came 
up in interrogations as to what the precise nature of such conversa- 
tions would be. So I would think that any of these types of gentlemen 



3139 

would be just as able to protect the integrity of a private conversation 
with the President as he, as a Cabinet officer, could do. 

Professor Berger. Now, about a report, for example, are you going 
to put the seal of secrecy on that? I think this is ridiculous. Govern- 
ment is run by reports, and where does privacy begin and end? 

Mr. Phillips. Moving on to another area, there has been expressed 
from time to time a thought that the courts are reluctant to intervene 
in disputes between the Congress and the President, over the matters 
that would involve executive privilege. I note in your testimony on 
page 8, in the Reynolds case, you say : 

In fa<r. Reynolds speaks against exaggerated Executive claims. The Supreme 
Court said it is not for the Executive but for the courts to determine whether 
the circumstances are appropriate for the claim of privilege. 

Professor Berger. This was a private litigation. 

Mr. Phillips. Yes, I realize that. It is not quite the same thing 
but on the last page of your testimony, you cite another case where you 
quote : 

When the two branches are engaged in a boundary dispute, that is as to the 
extent of their several powers, the issue Madison said cannot be decided by 
either. 

You go on to point out that the decision, as Justice Frankfurter and 
Justice Jackson said : 

Must be left to an arbitrator for such issues in the Supreme Court. 

What I am asking is, in your judgment is there any validity to this? 
Might not the courts be reluctant to take jurisdiction in a properly 
framed suit involving a head-on collision between the Congress and the 
President to determine the constitutional basis, if any, of the so-called 
doctrine of executive privilege ? Do you think the court today would 
be reluctant, or find a technicality, to throw such a suit out? 

Professor Berger. Well, it is very hard with a new Court to make 
any prognosis, but let me take one thing at a time. There is no case 
where a congressional dispute about executive privilege has ever been 
submitted to the courts. I think it is fair to say that the courts will 
not eagerly embrace disputes of this kind but that is not to say that 
they will throw them out of court. The United States v. Myers was a 
case where the Congress tried to impose limits on the President's re- 
moval of the Postmaster, as I recall it, so you have a conflict between 
the President and the Congress. Although in form it was a suit by 
the displaced Postmaster, in fact, it was a dispute between the Con- 
gress and the President, and Senator George Wharton Pepper was 
asked by the Senate to represent it. So there is one example. 

In the steel seizure case, again a private suit by the Youngstown 
Steel Co. v. Sawyer what was involved and what moved the court was 
the fart that the President was impinging on congressional powers. 

Probably one could recite other cases, but basically when you have a 
longstanding dispute between the two major branches which impairs 
tiie efficiency of Congress, because it is deprived of information without 
which it can't act, it would seem to me the court would consider it 
highly desirable when you submit the issue to decide it. 

Let's look at it in the context of a contempt suit. You would take the 
Secretary of the Army into custody and the Sergeant at Arms would 
hold him so that the Secretary could obtain a writ of habeas corpus. 



3140 

The Court would find it difficult to do nothing because if it does 
nothing, the officer remains in custody. It lias to decide the case. The 
Court made the first giant step when it said you have the right to in- 
quire into whether the Attorney General is neglecting his duties. You 
have a right to inquire to get information for legislation. Roger Sher- 
man said when the first Congress was drafting the act of 1879, "If we 
don't have information, we have to go to those who have it," namely, 
the Secretary of the Treasury. 

Given a habeas corpus proceeding, I don't see how that Court could 
dodge a decision, bearing in mind its recognition of the contempt 
power of Congress. 

Mr. Phillips. Of course, there would be nothing to preclude the 
Congress by statute to require the Court under certain specified condi- 
tions to consider and render a judgment in a case that would be related 
to the questions we are discussing here. 

Professor Berger. Such a case is an adversary proceeding. You have 
power, of course, to regulate the jurisdiction of the Federal courts and 
to confer or take away jurisdiction. And this is an adversary proceed- 
ing. It is a longstanding dispute between two branches of the Govern- 
ment. I really don't believe that the Court would disclaim jurisdiction. 
It took jurisdiction on a much touchier question, not involving the 
President, to be sure, but involving the immediate constitutional pre- 
rogatives of this House, in the Powell case. Let us remember two 
things : When the Court refuses to adjudicate the dispute between Con- 
gress and the President, it throws Congress back on its own weapons. 
One of them, of course, is appropriations. You can start dislocating the 
executive branch by just cutting off appropriations, which would really 
rock the United States, or in the case of a cutoff of foreign aid, our in- 
ternational relations. Second, you have the power of impeachment and 
can say you are constraining us to do the very thing that President 
Andrew Johnson begged the Congress not to do. You are compelling 
us to go after members of the executive branch by way of impeachment. 

Mr. Phillips. I appreciate that very detailed answer, and also, as 
far as the staff is concerned. I speak for all of us that we very much 
appreciate your coming here today. Your statement is extremely help- 
ful in clearing up a lot of the gray areas that have been bandied around 
in hearings in the past. It has been very helpful also in dispelling some 
of these old myths about executive privilege. 

Professor Berger. If I can be of any help down the line, please get in 
touch with me. I came down for just one reason — I am here because 
I believe what you are doing is important, so get on with it. 

Mr. Moorhead. We expect to take advantage of that very kind offer 
and call upon you for advice, as we hopefully proceed in the right 
direction. 

Mr. Copenhaver. I want to commend you for your scholarly state- 
ment and seek an observation from you. The other night I had the 
opportunity to read Hannah Arendt's work, "On Revolution.'" I sup- 
pose you have read that. If not, I commend it to you. She was com- 
paring the outcome of the American Revolution with that of the 
French and Soviet Revolutions. One of her conclusions was that the 
reason the United States has survived so far as a democratic nation 
has been the fact that the drafters understood and comprehended 
power and, in doing so, as you have properly pointed out in your state- 



3141 

ment, determined where the power should be established, particularly 
in terms of separation of powers. Therefore, would you not agree that 
by the Congress abdicating their responsibility — thus permitting their 
power to erode — the foundation is being laid for the undermining of 
the Republic ? 

Professor Berger. Undermining, you say ? I agree. I have great 
reverence for the way the f ramers went about their tasks. In fact, one 
of the glories of our history is the caliber of those men and the 
wisdom and foresight, and I agree thoroughly. I haven't read Mrs. 
Arendt's book, but those boundaries were drawn as protection against 
totalitarianism. In warmaking, as the chairman said, we are electing 
a benevolent dictator every 4 years. That is not the government they 
dreamt of and I have to say, as an American, that is not the kind of 
government I want. But that is the kind of government you are going 
to have until Congress takes back the powers conferred on it. 

Mr. Copenhaver. One final comment. You and I are in agreement 
for the most part, but I have a somewhat different opinion on one 
matter. I believe the Congress should not invoke the authority of the 
Court but should instead use its plenary power through the appro- 
priations process through its contempt authority which you suggested 
and otherwise for the purpose of maintaining its equal position under 
the separation of powers doctrine. I think we must question the makeup 
of the courts at pertinent and particular times in our history. We 
should place this ultimate authority in a non-responsive third branch. 

Professor Berger. Well, you have a tug-of-war here, that has been 
going on for a long time right under our noses. I used to object to the 
cutoff of appropriations, but I thought better of it. Experience has 
led me to feel that almost any mechanism that can produce results needs 
to be employed, but I would say this ; there is an advantage about sub- 
mitting a controversy to the courts in a contempt proceeding. That 
is one way of doing it. I concurred with Mr. Erlenborn's views that 
that should be done. Get it into the courts. There is one thing about the 
courts and that is that it won't require an endless series of cases. You 
get a couple of precedents established, and the President and his staff 
can read those cases. They will comply, especially if they know right 
off the bat you can get one of them up here before the courts. 

If you cut off the appropriations, you will have to repeat that time 
and again and maybe you will win and maybe you won't. I am sure 
you have more important matters than that. You shouldn't be fighting 
about the problem of getting information. You should be legislating on 
the basis of information you are getting and you should be using all 
of your energies for advancing the government. 

One last thought I want to leave you with is that I would not sug- 
gest that the power of inquiry is absolute. Historically I found virtu- 
ally no limits on the power, but it may well be that a court might de- 
cide that inquiry power is not absolute. Absolutes are not presently 
in favor. Somebody less generous than yourself may want to get con- 
fidential conversations between the President and General Bradley 
and the court might say, you haven't got an absolute right to that in- 
formation. I react to that as a lawyer. I feel that great controversies 
need to be put in the hands of the court. 

Mr. Moorhead. Thank you. The staff has some more questions. I 
wonder if you would be willing to answer written questions submitted 
to you, sir. 

76-253— 72 — pt. S 14 



3142 

Professor Berger. Well, this would be a little more difficult because 
I am right now in the midst of proofing my second book. I am really 
pretty busy. If you have any questions I prefer to answer them off 
the cuff. I find when I sit down to write, I am more fastidious than 
in an off-the-cuff remark. 

Mr. Moorhead. Our distinguished colleague, the Representative 
from New York, was unable to be here today. She has asked that her 
statement be printed in the record. 

Without objection, it will be so printed. 

(The prepared statement of Congress worn an Abzug follows:) 

Statement of Hon. Bella S. Abzug, a Representative in Congress From the 

State of New York 

Mr. Chairman and members of the subcommittee. I am grateful for the oppor- 
tunity to testify on the Freedom of Information Act this morning. You and 
your staff are to be congratulated for the effort and expertise which you have 
mounted on behalf of this exhaustive inquiry. The whole morass of Govern- 
ment recordkeeping, classification of information, release of information on a 
selective basis, and so forth, is almost too complex to define or solve. Information 
is power, and, like power, is not easily surrendered by those who possess it. 

The Freedom of Information Act of 1966, was a frontal assault on the bastion of 
Executive secrecy. For the first time, the burden was placed on the Government 
to produce the records of its activities or justify its refusal or failure to do so. 
Under this act, the citizen for the first time could appeal to the courts when 
denied information by a bureaucrat. 

The act has its limitations, however. Vital categories or types of information 
are exempted from its provisions. The exemption most relevant to this inquiry is 
information that is "specifically required by Executive order to be kept secret 
in the interest of the national defense and foreign policy." 

The Executive order which covers this class of information is Executive Order 
10501 of November 5, 1953. One week from today, Executive Order 10501 will 
be superseded by a new order, Executive Order 11652. This order, said to be the 
product of a year's study by a committee appointed by the President in response 
to the furor over the release of the Pentagon Papers, was issued by President 
Nixon on March 8, and is the subject of a National Security Council directive of 
May 17. 

The new Executive order purports to speed up the process of declassification 
of records by providing, among other things, for a •'mandatory review" at the 
end of 10 years of all classified information to determine whether it should remain 
classified any longer. The new order further establishes a 30-year rule for the 
automatic declassification of records, giving the Archivist of the United States 
the authority to declassify records or to request their declassification. 

These are improvements, but the time periods are far too long. 

weaving aside certain obvious problems with the Language of the order, such 
as that "mandatory" review turns out to be not mandatory at all, I should like 
to address the question of just what classified information is. 

Under the old order, classified information was "defense information," defined 
as "official information which requires protection in the interests of the national 
defense." Under the new order, classified information is expanded to include 
not only defense information but also information concerning the foreign rela- 
tions of the United States. To quote from Executive Order 11652, "Security 
information" is "official information or material which requires protection against 
unauthorized disclosure in the interest of the national defense or foreign relations 
of the United States * * *" (sec. 1). (Emphasis added.) 

it has been said that war is too important to be left to the generals. I submit 
that the foreign relations of the United States, upon which depend in large pan 
our internal well-being as well as the external relationships which bring war or 
peace around the globe, are too important to be left exclusively to the occupant 
of the White House. Our Constitution clearly gives Congress the duty and right 
to participate in the conduct of foreign relations. 

Who is it, under this order, who decides what "Security information" is? 
It is the President of the United States, advised solely by a review committee 
appointed by the National Security Council and chaired by a person designated 



3143 

by the President, presently Ambassador John Eisenhower. The members of the 
Committee are to come solely from the executive branch, without the participa- 
tion of Congress or other outside members. ( Set-. 7(A).) 

Who has the authority to declassify "Security Information." once it has been 
so declared? Again, the President and his subordinates. Under the terms of the 
new Executive order, they can refuse to declassify it in perpetuity if they so 
desire. 

Far from being an improvement, this new order is a dangerous and unwarranted 
expansion of the powers of the Executive. It may well be unconstitutional, since 
by controlling information concerning foreign relations it usurps powers ex- 
pressly granted to Congress in the field of foreign affairs. 

Further, section 8 of this order exempts atomic energy information from its 
provisions, as required by statute. It is time for us to end our worship of the 
-acred cow of atomic energy. The Congress should take another look at the 
provisions of the Atomic Energy Act as they pertain to the release of information 
said to be "born classified" but now 25 years of age or more. Like the atom itself, 
unseen and unheard, this category of information permeates nearly every aspect 
of our daily lives and our relations with other countries, since it concerns the 
nuclear balance and our vital energy supplies. It is evssential that the public be 
fully informed on these matters. 

To those who would argue that either atomic energy information or defense 
information is "technical" or "scientific" information for which our legislators 
and our people have no need in order to make wise political decisions, I should 
like to refer to a recently "declassified" report of a Department of Defense Task 
Force on Secrecy which I wish to submit in full for the record. This board 
concluded in July 1970, that it was reasonable to suppose that scientific infor- 
mation originated by us would be discovered by others within a period of one 
year. This prestigious task force, composed of some of our most eminent scientists, 
believed that •'more might be gained than lost if our Nation were to adopt, 
u nil at era Jl[/ if necessary, a policy of complete openness in all areas of informa- 
tion * * *" (Emphasis added.) 

The task force continued with an even more remarkable statement : 

* * * in spite of the great advantages that might accrue from such a 
policy [of complete openness], it is not a practical proposal at the present 
time. The task force believes that such would not be acceptable icitliin the 
current framework of attitudes, both national and international, toward 
classification. (Emphasis added.) 

The Pentagon's own technical advisory board on secrecy recommended a policy of 
complete openness and then declared that such a policy was not "acceptable." 
This, of course, was prior to the publication of the Pentagon Papers and other 
breaches of this ridiculous security classification system which have since 
occurred. 

Let us hope that these hearings and others to come will demonstrate beyond 
a shadow of a doubt that the current framework of attitudes has changed. 

But more is needed than a change of attitudes. We need to overhaul the entire 
apparatus of Cold War legislation which has made this miasma of secrecv 
possible. The Congress needs to take a fresh look at such basic legislation as the 
National Security Act, the Espionage Act, the Atomic Energy Act, and others. 

Some constructive legislation has already been proposed by the former chair- 
man of this subcommittee, Mr. Moss, in association with my colleague from 
New York, Mr. Reid. H.R. 15006, would amend the Freedom of Information Act 
to provide for automatic cutoff of funds to agencies which fail to provide in- 
formation on request after certification to a committee of Congress that they 
have done so. H.R. 9853, introduced by Congressman Hebert last July, would 
amend the National Security Act to establish a "Commission on the Classifi- 
cation and Protection of Information" composed of four Members of Congress 
four members appointed by the President, and four appointed by the Chief 
Justice. Such a broad group, if established on a permanent basis as a classifica- 
tion review committee, would certainly be an improvement over the National 
Security Council Review Committee established by the new Executive order 

Mr Chairman, I understand you plan to introduce in the near future a major 
amendment to the Freedom of Information Act which would revamp the classi- 
fication system to make it more responsive to the needs of a democratic societv. 
lhat is something that needs to be done. I believe Congress should substitute its 



3144 

judgment for that of the Executive classifiers who have a built-in interest in 
perpetuating secrecy in Government. One line of approach, which so far as I 
know has not yet. been explored by the subcommittee, may be to amend the 
Federal Records Act of 1950, which governs records management and defines 
the duties of the Archivist of the United States but gives him no real authority 
to set guidelines for the maintenance, use, and disposition of Government 
records. 

Let me sum up this brief statement by urging this committee and other 
committees of Congress with jurisdiction in the field of information control to 
have the courage of their convictions. The Freedom of Information Act was 
•'one small step for mankind." I believe it has done some good, but much more 
work lies before us. 

iiefort of the defense science board task force on secrecy 

Office of the Director of Defense Research and Engineering, 

Washington, D.O., Jvhj 6, 1970. 

Memorandum for the Secretary of Defense 

Through : The Director of Defense Research and Engineering. 
Subject : Final report of task force on secrecy. 

The following report of the Defense Science Board was prepared in response 
to a request of the Director of Defense Research and Engineering. The study 
was conducted by a special task force of the Board under the chairmanship of 
Dr. Frederick Seitz. In his memorandum of submittal Dr. Seitz emphasizes the 
need for "major surgery" in the DOD security system. 

With the approval of the Defense Science Board, I recommend this report to 
you for your consideration. 

Gerald F. Tape. 
Chairman. Defense Science Board. 



Office of the Director of Defense Research and Engineering, 

Washington, D.C., July {J, 1970. 

Memorandum for the Chairman, Defense Science Board 

Subject : DSB Task Force on Secrecy Final Report. 

The Task Force on Secrecy herewith submits its final report. This report, 
which has been coordinated with all members of the Defense Science Board, 
concludes the work of the task force. 

The report addresses specific questions posed by the D.D.R. & E. in general 
terms since time and resources did not permit establishment of detailed steps 
required to correct the deficiencies identified in the present DOD scientific and 
technical information security classification system. These actions axe more 
appropriately the responsibility of the cognizant DOD elements. 

In addition, the task force considered security classification from the national 
long range and short range viewpoints. These combined considerations, that is, 
the si>ecifie questions posed by the D.D.R. & E. and the national considerations, 
resulted in a general conclusion that the DOD security classification system 
requires major surgery if it is to meet the defense, national and international 
environment of today. Specifically, we found that : 

1. It is unlikely that classified information will remain secure for periods 
as long as 5 years, and it is more reasonable to assume that it will become 
known to others in periods as short as 1 year. 

2. The negative aspect of classified information in dollar costs, barriers 
between United States and other nations and information flow within the 
United States is not adequately considered in making security classification 
determinations. We may gain far more by a reasonable policy of openness because 
we are an open society. 

3. Security classification is most profitably applied in areas close to design 
and production, having to do with detailed drawings and special techniques of 
manufacture rather than research and most exploratory development. 



3145 

4. The amount of scientific and technical information which is classified 
could profitably be decreased perhaps as much as 90 percent by limiting the 
amount of information classified and the duration of its classification. 

General recommendations to correct these deficiencies are contained in the 

report. 

Frederick Seitz, 
Chairman, Task Force on Secrecy. 

Preface 

hate in 1969 the Defense Science Board established the Task Force on Secrecy 
to consider questions pertinent to the classification of information in all stages 
of research, development, test and evaluation (R.D.T. & E.), as well as procure- 
ment and deployment. 

The members of the task force were as follows : 

Dr. Frederick Seitz (chairman), Dr. Alexander H. Flax, Dr. William G. 
McMillan, Dr. William B. McLean, Dr. Marshall N. Rosenbluth, Dr. Jack P. 
Ruina, Dr. Robert L. Sproull, Dr. Gerald F. Tape, Dr. Edward Teller, Mr. 
Walter C. Christensen (staff assistant ) . 

In the course of its discussions, the task force consulted a number of individuals 
and groups, among whom were the following persons : 

Dr. John S. Foster, Jr., Director of Defense Research and Engineering. 

Dr. Gardiner L. Tucker, Principal Deputy Director of Defense Research and 
Engineering. 

Dr. Luis W. Alvarez, professor of physics, University of California, Berkeley. 

Mr. Joseph J. Liebling, Deputy Assistant Secretary of Defense (Security 
Policy). 

Dr. Donald M. MacArthur, Deputy Director (research and technology), 
O.D.D.R. & E. 

Lt. Col. John M. MacCallum, Advanced Research Projects Agency. 

Dr. Michael M. May. director, and associates, Lawrence Radiation Laboratory. 

Mr. Walter McGough, Acting Special Assistant (Threat Assessment), 
O.D.D.R. & E. 

Mr. Rodney W. Nichols, Special Assistant to the Deputy Director (Research 
and Technology), O.D.D.R. & E. 

Vice Adm. Hyman C. Rickover, U.S. Navy, Director of Nuclear Power, Naval 
Ship Systems Command. 

Rear Adm. Levering Smith, U.S. Navy, Director, Strategic Systems Project 
Office, Naval Material Command. 

Dr. Eugene Wigner, Professor of Physics, Princeton University. 

Summary 
general comments 

1. The task force considered the matter of classification from several view- 
points : however, it focused its main attention on the classification of scientific 
and technical information. 

12. The task force noted that it is unlikely that classified information will 
remain secure for periods as long as 5 years, and it is more reasonable to 
assume that it will become known by others in periods as short as 1 year 
through independent discovery, clandestine disclosure or other means. 

3. The task force noted that the classification of information has both negative 
as well as positive aspects. On the negative side, in addition to the dollar costs 
of operating under conditions of classification and of maintaining our informa- 
tion security system, classification establishes barriers between nations, creates 
areas of uncertainty in the public mind on policy issues, and impedes the flow 
of useful information within our own country as well as abroad. 

4. The task force noted that more might be gained than lost if our nation were 
to adopt — unilaterally, if necessary — a policy of complete openness in all areas 
of information, but agreed that in spite of the great advantages that might 
accrue from such a policy, it is not a practical proposal at the present time. The 
task force believes that such a policy would not be acceptable within the current 
f ,;iine\vnrk of national attitudes toward classified defense work. A number of 
areas of information in which classification may be expected to continue are 
listed in the text. 



3146 

5. The task force noted that the types of scientific and technical information 
that most deserve classification lie in those phases close to the design and pro- 
duction, having to do with detailed drawings and special techniques of manu- 
facture. Such information is similar to that which industry often treats as 
proprietary and is not infrequently closer to the technical arts than to science. 
The task force believes that most of the force of attention in classifying technical 
information should be directed to these phases rather than to research and 
exploratory development. 

6. In the opinion of the task force the volume of scientific and technical infor- 
mation that is classified could profitably be decreased by perhaps as much as 90 
percent through limiting the amount of information classified and the duration 
of its classification. Such action would better serve to protect that information 
necessarily classified since then the regulations concerning the enforcement of 
classification could be applied more rigorously than at present. 

RECOMMENDATIONS 

General 

1. Selectivity in classifying. — In overhauling our classification guides the 
advantages that might accrue from inhibiting the acquisition of the information 
by a competitor or potential enemy through classification should be balanced 
against the advantages of possibly speeding development in the United States 
through not classifying the information. 

2. Time limit on classification.- — Whenever a document is classified a time 
limit should be set for its automatic declassification. This time limit should be 
adapted to the specific topic involved. As a general guideline, one may set a 
period between 1 and 5 years for complete declassification. (Note, however, the 
exemptions stated below for certain types of information.) This time limit 
should be extended only if clear evidence is presented that changed circum- 
stances make such an extension necessary. 

3. Declassification of material now classified. — All material now classified 
should be reviewed as soon as possible after the adoption of the new policy ; we 
hope this might be accomplished in as short a time as 2 years. The review 
should either declassify the document or set an appropriate date for its 
declassification. 

Research, development, and deployment 

1. As a general rule, research and early development should be unclassified. 
Thus in the main, 6.1 and 6.2 should be open, while 6.3 may be classified. The 
partition between 6.2 and 6.3 is not rigid, and classification should be tailored to 
fit the individual circumstances. 

2. In general, we expect classification to be most justifiable when the develop- 
ment approaches the "blueprint" stage. This coincides with the phase when 
expenditures become substantial. Protection is most desirable when an item 
requiring a considerable leadtime for development is being prepared for 
deployment. 

3. After deployment, classification may be reduced or canceled. At that stage, 
the information will have been disseminated to many people so tight classifica- 
tion may no longer be realistic. Secrecy will usually be most valuable to main- 
taining: a technological lead during the period of development. 

4. The task force believes that the "confidential" category is not. appropriate 
for R. & D. programs and that "special access" limitations are more likely than 
not to seriously impede difficult technical programs. 

Plans and Operations 

1. The contrast, the information involved in high-level planning requires rigid 
protection on a need-to-know basis. To declassify such information would not 
speed technical development: the contingencies envisaged in such planning 
may never arise, and their publication may cause ill feelings. The only reason 
for declassification is the interest of the historian. Stringently limited distri- 
bution and extended classification time limits may be justified in this category. 

2. Information relating to specific operational plans should remain classified 
as long as the plan is in effect — and perhaps even beyond, insofar as declassifi- 
cation could reveal genuine details of possible use to a potential enemy in 
developing countermeasures. If secrecy is required, the best protection is afforded 
by frequent changes in the pattern of operations. Classification of a specific 
operational plan should be promptly canceled if it becomes irrelevant. 



3147 

Responses to Specific Questions 

The task force's responses to specific questions posed in its charter are as 
follows : 

Question. Is our security system generally effective in denying to potential 
enemies DOD information that affects the national security? As a corollary 
question, how long can tee reasonably expect that classified information will 
remain unknown to potential enemies? 

Response. Security lias a limited effectiveness. One may guess that tightly 
(•(in trolled information will remain secret, on the average for perhaps 5 years. 
But on vital information, one should not rely on effective secrecy for more than 
1 year. The task force believes that classification may sometimes be more effective 
in withholding information from our friends than from potential enemies. It 
further emphasizes that never in the past has it been possible to keep secret 
the truly important discoveries, such as the discovery that an atomic bomb can 
be made to work or that hypersonic flight is possible. 

Question. Granted that excessive use is being made of classification and limita- 
tions on distribution, what practical steps can be taken to better define the DOD 
information that should be protected in the interest of national security? Consid- 
eration of this question should include the cost and effect of controlling DOD in- 
formation to tlte United States and its allies, versus the benefits to potential 
enemies of its open release. 

Response. Starting from the premise that the interests of an open society and 
the speedy exploitation of technology are best served by minimal classification 
consistent with essential security, the task force identified a number of critical 
areas to be discussed below, in which continued classification appears justified. 
These critical areas span a much narrower region, however, than is now included 
under existing classification rules. 

The task force felt equipped to recommend only general philosophy, as opposed 
to detailed classification guidelines. Also, we did not consider monetary costs 
of security measures but only their likely inhibition on U.S. technological 
development. 

Specifically, it is recommended that the present emphasis, that promotes 
classification, be reversed to discourage classification by requiring in each in- 
stance of classification : 

A meaningful written justification by the initiator of the classification 
action ; and 

A limit on the classification, as short as possible, which could be extended 
with detailed justification. 

Question. Are there key points in the research, development, production, and 
deployment cycle at which information should be controlled? That is, should tee 
adopt the policy that all DOD research be unclassified and freely available and 
the /-(fore impose controls only on information pertaining to specific pieces of 
hardware? One point which should be carefully considered here is the additional 
leadtime that will be available to a potential enemy if he obtains knowledge of 
our significant research and technology activities and thus can predict its end 
use in a weapon system. 

Response. The task force has weighed the detrimental effect of security 
controls on the conduct of R. & D. programs against the need to meet other na- 
tional objectives and to avoid disclosures beneficial to potential enemies. It ap- 
pears that little is to be gained by classifying basic research ; it is noted that DOD 
policy and practices are already in virtually complete accord with this view. 
Similarly, it seems that, as a general rule, much of the early exploratory devel- 
opment could be kept unclassified. Exceptions should require formal documen- 
tal ion and formal approval by OSD ; each approval of classification in this 
category should be accompanied by a rigid deadline for declassification. 

For all other development work, including advanced exploratory development 
and advanced development, classification procedures similar to those employed 
today are suitable. The criteria should be sharpened, however, so that classi- 
fication may be imposed only to preclude major technological advantages to 
potential enemies, to prevent disclosure of information of major importance 
in the development of countermeasures, or to support national policy directives 
and regulations. Within this framework, the classification of each system, com- 
ponent, subsystem or technique in advanced development should be considered 
individually on its own merits. Here, too, a rigid schedule for declassification 
should be imposed from the beginning. 



3148 

Major programmatic changes in any category of classified R. & D. should 
be accompanied by reconsideration of the program's security classification. 
Particularly, when a system is operationally deployed, the large increase in 
known system technology and its diffusion among many people should be rec- 
ognized, and classification should be revised accordingly, with major emphasis 
on preventing disclosure of system vulnerabilities and on forestalling the early 
development of specific countermeasures by potential enemies. 

Discussion of Prime Factors and Effects in Classification 

1. general significance of classification 

Although the task force was composed of individuals whose backgrounds are 
in science and engineering, the group sought responses to its assignment from a 
broader viewpoint since it was felt quite strongly that the issue of classification 
and the way it is handled has a significant effect on the posture of our nation 
in the international community, particularly in relation to our ability to unite 
and strengthen the free nations of the world. To emphasize this point, one of the 
members quoted an opinion expressed by Niels Bohr soon after World War II 
that, while secrecy is an effective instrument in a closed society, it is much less 
effective in an open society in the long run; instead, the open society should 
recognize that openness is one of its strongest weapons, for it accelerates mutual 
understanding and reduces barriers to rapid development. 

We believe that overclassification has contributed to the credibility gap that 
evidently exists between the government and an influential segment of the popu- 
lation. A democratic society requires knowledge of the facts in order to assess 
its government's actions. An orderly process of disclosure would contribute to 
informed discussions of issues. 

When an otherwise open society attempts to use classification as a protective 
device, it may in the long run increase the difficulties of communications within 
its own structure so that commensurate gains are not obtained. Experience 
shows that, given time, a sophisticated, determined, and unscrupulous adversary 
can usually penetrate the secrecy barriers of an open society. The Soviet Union 
verv rapidly gained knowledge of our wartime work in nuclear weapons in 
spite of the very high level of classification assigned to it. The barriers are apt 
to be far more effective against restrained friends or against incompetents, and 
neither pose serious threats. 

Beyond such general matters, the task force noted that there are frequent 
disclosures of classified information by public officials, the news media, and 
quasi-technical journals. While the reliability and credibility of such infor- 
mation frequently may be in doubt, the magnitude of leaks indicates that, at 
present, our society has limited respect for current practices and laws relating to 
S eerecy. It would lie prudent to modify the present system to one that can be both 
respected and enforced. 

2. SOME MAJOR AREAS IN WHICH CLASSIFICATION SHOULD CONTINUE 

The task force recognized that there are major areas in which classification 
is either traditional or expected. The task force did not attempt to reach una- 
nimity on the extent to which such classification is necessary- The following are 
examples of such areas : 

2.1 International Negotiations. — There are many international negotiations 
in which discussions are facilitated by secrecy, even though the results may even- 
tually be disclosed. Secrecy permits greater freedom of discussion at the con- 
ference table and the consideration of a much wider framework of new ideas 
and proposals than might otherwise be the case. 

2.2 Plana for Hypothetical Emergencies. — It is frequently advantageous to 
classify plans for assumed emergencies in order to limit their circulation. Such 
plans may include alarming contingencies that may never occur at all — or, at 
least, not be realized in the way assumed when the plans were developed. 

2.3 Tactical awl Operational Plans. — Tbere are many tactical and operational 
plans that would lose their effectiveness, or even be jeopardized, if they were 
not maintained secure for at least a limited period of time. For example, detailed 
plans for the disposition and operation of the Polaris fleet, or the state of readi- 
ness of combat groups prior to engagement may, for purposes of effectiveness, 
deserve to be classified for a specified period of time. 



3149 

2 4 Intelligence Information.— Information gained through intelligence chan- 
nels often must he classified for a period of time in order to protect the sources 
of information that would dry up if revealed. Nevertheless, intelligence that is 
critical to an understanding of our national posture should be disseminated as 
soon as possible, and in as much detail as feasible (consistent with not com- 
promising our collection capability). Careful consideration should be given to 
the question : To what extent could openness and international sharing of infor- 
mation gathered bv physical observation improve our position? 

2.5 Specific R. & D. Efforts.— There may be a good reason for limiting dis- 
closure of the magnitude and direction of our efforts in specific fields of research 
and development for a time, when plans for production are congealing, m order 
to maximize the advantages gained through leadtime. In all such cases we must 
continue to recognize that the lead gained will be transitory unless each advance 
is followed by another. 

2.6 Vulnerabilities.— It appears essential to restrict information concerning 
major weaknesses of operational systems, particularly before remedies for those 
weaknesses are completed. At the same time, one must insure that such 
restrictions do not result in the lack of recognition of the problem or in failure 
to remedy the situation. 

*. GENKRAL CLASSIFICATION PHILOSOPHY 

Some members of the task force are inclined to the view that, as a nation, 
we would have more to gain in the long run by pursuing a policy of complete 
openness in all matters. For example, the strategic arms limitations talks 
(SALT) might be more realistic if they were accompanied by a full and open 
public disclosure of knowledge of weapons capabilities and state-of-the-art 
developments, preferably by both sides, but at least on our part— especially what 
we know about Soviet systems. In this way, the Congress and the general public 
would be better informed regarding the significance of the SALT discussions. 
Similarly, some of the members of the task force feel that public discussion of 
matters such as the Safeguard system would be given a more realistic basis if 
intelligence information and analysis were made openly available, even if this 
meant disclosing information on certain collection techniques, providing these 
would not be jeopardized by open discussion. 

Nevertheless, the task force eventually agreed that it would be very difficult to 
obtain broad acceptance of highly radical change in classification at this time 
because of understandable conservatism and deeply ingrained attitudes. Such 
attitudes would make it difficult to alter significantly present laws and regulations. 
The most that can be hoped for in the short run is that the present system might 
be overhauled extensively in order to make it more realistic, in which case it 
could be respected and enforced far more completely. 

In spite of this area of agreement concerning the necessity for secrecy in 
limited cases, the task force emphasizes that there are very great disadvantages to 
extensive reliance on secrecy in our society. 

4. CLASSIFICATION OF TECHNICAL INFORMATION 

With respect to technical information, it is understandable that our society 
would turn to secrecy in an attempt to optimize the advantage to national 
security that may be gained from new discoveries or innovations associated 
with science and engineering. However, it must be recognized, first, that certain 
kinds of technical information are easily discovered independently, or regenerated, 
once a reasonably sophisticated group decides it is worthwhile to do so. In spite 
of very elaborate and costly measures taken independently by the United States 
and the U.S.S.R. to preserve technical secrecy, neither the United Kingdom nor 
China was long delayed in developing hydrogen weapons. Also, classification of 
technical information impedes its flowing within our own system, and, may 
easily do far more harm than good by stifling critical discussion and review or 
by engendering frustration. There are many cases in which the declassification 
of technical information within our system probably had a beneficial effect and its 
classification has had a deleterious one : 

(1) The United States lead in microwave electronics and in computer tech- 
nology was uniformly and greatly raised after the decisions in 194(5 to release 
the results of wartime research in these fields. 



3150 

(2) Research and development on the peaceful uses of nuclear reactors 
accelerated remarkably within our country, as well as internationally, once a de- 
cision was made in the mid-1950's to declassify the field. 

(3) It is highly questionable whether transistor technology would have 
developed as successfully as it has in the past 20 years had it not been the object 
of essentially open research. 

As a result of considerations of this kind, the task force believes that much of 
research and exploratory development (essentially all of 6.1, most of 6.2, and 
some of 6.3) should generally be unclassified; at the same time, we realize that 
the greatest value of classification rests in the preservation of designs and spe- 
cialized techniques close to assembly and production and more akin to the tech- 
nical arts. 

In this connection one of the members emphasized that, to the extent that 
technical information should be safeguarded in behalf of national security, the 
greatest importance should be attached to what might be called proprietary 
technical information — information not unlike that relating to fabrication and 
production which industrial organizations attempt to preserve from competitors. 
Thus significant advantages can be obtained in some areas of categories 6.4 and 
6.6 by classification. Even here, however, it should be recognized that restrictions 
on the dissemination of such information may impede its exploitations within 
our national community at least as much as it impedes those foreign nations 
which would not scruple to attempt to obtain it through espionage. 

5. CLASSIFICATION CRITERIA AND LIMITATIONS 

It is the considered opinion of the task force that past procedures — according 
to which classification rested largely on the desire to withhold information from 
other nations — should be modified to give greater consideration to the effects 
of classification on our own progress. It should be emphasized that a strong 
voice, that of the U.S. Congress, is primarily influenced by the requirement to 
withhold information from others. The effects of classification on our own prog- 
ress will have to be carefully discussed. We believe that scientific and engineer- 
ing information, short of detailed blueprints and critical techniques relevant to 
production, should be classified only after having been justified by very special 
reasons. At the time of classification, a date should be specified after which the 
classification would be removed. This period should be as short as possible, and an 
extension should be granted only when fully justified. 

At present, a major proportion of technical information classified top secret 
is subject to a declassification pattern designated as 3-3-6, whereby they are 
downgraded to secret in 3 years and to confidential in another 3, and made 
open after an additional 6 years. We believe that, for most technical items, this 
is much too long. 

The task force was inclined to the view that the classification category of 
confidential, as applied at present to research and development not bearing im- 
mediately on field problems of military interests, is probably useless, or even 
detrimental, for it prevents normal diffusion of information without providing 
a really effective barrier to leaks. It probably would be much more realistic 
to confine this category of classification to matters bearing on military plans 
and readiness. 

For somewhat different reasons, it appeared to the task force that the category 
of special access, as applied to areas of research and technology, should be 
carefully monitored to avoid unduly limiting the number of competent technical 
minds that provide innovative contributions in the area. In the one case examined 
(eighth card), the task force believes that special access should never have 
been applied. In circumstances such as those that prevailed during World 
War II, when most of the best scientists and engineers were engaged in classi- 
fied defense research, on a full-time basis, it may be feasible to bring to bear a 
suitably diverse spectrum of minds and talents even on those areas designated 
special access. But this would be exceedingly difficult under present-day con- 
ditions when so many competent technologists are associated, if at all, only 
peripherally to military research and development. The more open the areas of 
investigation, the more dynamic will be our national approach to the exploratory 
phases of research and development. 



3151 

G. OTHER OBSERVATIONS 

As a result of limitations on time and staff, the task force could not explore 
all facets of the field of classification. It did, however, attempt to gain an under- 
standing of the way in which classification procedures work at the detailed 
level in a few cases. The following observations may be made : 

(1) Although there are many alert and imaginative professional experts 
engaged in assigning and administering classification, as long as the classified 
material remains so voluminous it is obvious that routine procedure can become 
too burdensome. There is also a quite understandable bureaucratic tendency 
to overclassify and to continue classification too long. If the amount of classified 
material could be reduced to, say, 10 percent of its present volume, a much more 
thoughtful and effective control could be established across the board. 

(2) It was noted that the laboratories in which highly classified work is 
carried out have been encountering more and more difficulty in recruiting the 
most brilliant and capable minds. One member of the task force made the pessi- 
mistic prediction that, if present trends continue for another decade, our national 
effort in weapons research will become little better than mediocre. In classified 
work, the increasing isolation and limited accountability to one's scientific peers 
contribute to this degradation. In addition, it is worth noting that the many 
scientists and engineers in academic circles who are willing to work on problems 
related to national defense would find it somewhat easier to do so in the environ- 
ment which prevails at present if the classified areas were reduced greatly, as 
the task force believes should be the case. 

(3) The task force emphasizes that modification in the pattern of classification 
alone will not be a panacea for the difficulties the Defense Establishment faces. 

Mr. Moorhead. I don't know whether you are aware of this or not, 
but the 1928 act statute was reenacted in 1965, as part of a codification 
of title 5 of the United States Code. Of course, those absolutely useless 
reports did not exist in 1966, and I wonder if you feel that the statute 
has any more standing, inasmuch as it was reaffirmed in 1 965. 

Professor Berger. I would say so. On the basis of the Dartmouth 
case and the Barr case it doesn't matter whether they thought about 
anything but the obsolete reports. If the language is so broad as to 
include oilier information, you are entitled to get it. The language of 
the statute, in a word, cannot be construed as confined to obsolete 
reports. 

Mr. Moorhead. Let us ask you another quick question 

Professor Berger. Sir, I am at your service. I would rather stay here 
as long as you have questions to ask. 

Mr. Moorhead. Well, I have to answer the quorum call and I have 
another matter to attend to. Mr. Cornish. 

Mr. Cornish. Professor Berger, I am looking at section ?> of the 
Constitution which requires the President of the United States to 
communicate to the Congress and I quote from that : "He shall from 
time to time give to the Congress information of the state of the Union" 
and I think that traditionally and historically — and Justice Goldberg 
made this point before the subcommittee — that the precedents of 
that go far beyond the state of the Union message. 

Professor Berger. Moreover, you will find in my article I discuss 
that point. You are very acute to notice it, but I feel that the report 
to the Union calls for more than the one report. 

Mr. Cornish. And, also, in article 1, under section (a) in the powers 
of Congress, I notice that one of those powers, No. 14, says : "Make 
rules for the Government" and I think that also applies in this case 
here, too. 



3152 

Professor Berger. Well, I don't know about that; first I have to 
make up my mind what the unique prerogatives of each branch are, 
and the attributes and once I have, done that I don't need the "rules for 
the government — " 

Mr. Cornish. You will have to admit the language of that is very 
broad and could be applied to many types of situations, and I think 
it could be applied to the information-seeking situation, where Con- 
gress seeks information from the Government and makes rules for that. 

Professor Berger. I confess I never thought of it, and I wouldn't 
rule it out, but I want to reflect about it before I answer. 

Mr. Cornish. I have enjoyed your testimony tremendously and I 
thank the chairman for his indulgence. 

Mr. Moorhead. Thank you very much. 

The subcommittee is now adjourned until 10 a.m., tomorrow. 

(Whereupon, at 12:10 p.m., the subcommittee adjourned, to recon- 
vene at 10 a.m., Wednesday, May 24, 1972.) 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



WEDNESDAY, MAY 24, 1972 

House of Representatives, 

Foreign' Operations and 
Government Information Subcommittee 
of the Committee on Government Operations, 

Washington, D.C. 

The subcommittee met, pursuant to recess, at 10 :10 a.m., in room 
2203, Rayburn House Office Building, Hon. William S. Moorhead 
(chairman of the subcommittee) presiding. 

Present: Representatives William S. Moorhead, John N. Erlenborn, 
Frank Horton, and Gilbert Gude. 

Staff members present: William G. Phillips, staff director; Norman 
G. Cornish, deputy staff director; Harold F. Whittington, staff con- 
sultant: and William H. Copenhaver, minority professional staff, 
Committee on Government Operations. 

Mr. Moorhead. The Subcommittee on Foreign Operations and Gov- 
ernment Information, will please come to order. 

As part of our hearings into the problems of Congress in obtaining 
information from the executive branch, we have invited testimony 
from three agencies with whom this subcommittee has, over the years, 
conducted considerable business both in the foreign operations and 
in the information field— the Defense and State Departments and the 
U.S. Information Agency. 

This morning we will hear from the first of these witnesses, Mr. 
Rady A. Johnson, Assistant to the Secretary of Defense for Legis- 
lative Affairs. Next Wednesday, May 31, we will have as our witnesses 
Mr. David M. Abshire, Assistant Secretary of State for Congressional 
Relations, and Mr. Charles D. Ablard, General Counsel and Congres- 
sional Liaison Director of the U.S. Information Agency. 

It is appropriate, we felt, to solicit testimony from these witnesses as 
to the overall policies, programs, and guidelines used by the agency in 
the handling of requests for information from committees of Congress 
as well as from individual Members of Congress. In addition, I am 
sure that these gentlemen are well aware of many individual cases 
involving specific problems this subcommittee and members who have 
testified or submitted statements to us for the record. Of course, we 
will be directing questions in connection with these problems of access 
to specific information. 

,3153) 



3154 

We will also inquire concerning access to various types of informa- 
tion, documents, records, vouchers, and similar data by the General 
Accounting Office. Testimony last week from Deputy Comptroller 
General Keller outlined a number of GAO problem areas. 

Our first witness this morning will be Mr. Rady A. Johnson, As- 
sistant to the Secretary for Legislative Affairs, Department of 
Defense. He is accompanied by a regular witness these days before 
our subcommittee, Mr. J. Fred Buzhardt, General Counsel of the 
Department of Defense. 

Will you gentlemen please come forward ? 

Do you solemnly swear that the testimony you are about to give this 
subcommittee will be the truth, the whole truth and nothing but the 
truth, so help you God ? 

Mr. Johnson. I do. 

Mr. Buzhardt. I do. 

Mr. Moorhead. We welcome you both. Mr. Johnson, you have a pre- 
pared statement which you may read to the subcommittee or proceed 
as } t ou wish. 

STATEMENT OF RADY A. JOHNSON, ASSISTANT TO THE SECEETAEY 
OF DEFENSE FOE LEGISLATIVE AFFAIRS; ACCOMPANIED BY J. 
FEED EUZKAEDT, GENEEAL COUNSEL OF THE DEPAETMENT OF 
DEFENSE 

Mr. Johnson. Since the statement is brief, I would like to read it 
and then respond to any questions you may have. 

Mr. Chairman and members oi' the committee : it is a privilege, to 
appear before you to discuss the policies of DOD for complying with 
congressional requests for information and how, in fact, they are han- 
dled and perhaps shed some light on the considerations which influence 
the application of that policy. 

I will not attempt to delve into the problems of classification, a 
subject on which this committee has spent so much time and effort, 
because I believe they involve entirely separable and largely irrelevant 
issues from those posed by this hearing. In other words, classification 
of information is not an interrelated matter to the question of executive 
privilege. 

The policies of the Department of Defense, as well as those estab- 
lished by this administration, regarding the furnishing of information 
to Congress were established on the belief that Congress must be fully 
informed of all Government programs and operations in order for the 
Government to function properly. Consequently, we make every pos- 
sible effort to satisfy the requirements of Congress for information 
in connection with the performance of its function in the oversight 
process, as well as on questions related to proposed legislation. 

I don't think this Congress has suffered from a lack of information 
on any of the administration's programs. The very fact that the current 
Secretary of Defense came from this body should serve as reassurance 
that the Department of Defense is sympathetic to the needs of Congress 
and makes a very sincere effort to work with the Congress. Secretary 
Laird lias repeatedly admonished all DOD components that the Con- 
gress is a coequal branch of Government. 

In order to give this committee a little background of some of our 
problems, let me review for you the workload that is generated in 



3155 

order to respond to the thousands of congressional inquiries received 
annually. I personally believe we do an excellent job of responding to 
the vast majority of requests. Although there are times when there 
are delays in getting some specific or voluminous information, these 
are exceptions that prove the rule. 

The routine requests, such as those on legislation, troop strengths, 
draft calls, and procurement items, for example, present no problems 
and generally are responded to by letter within 5 working days. We are, 
of course, alert to those areas which are sensitive from a standpoint of 
ongoing operations, foreign policies, and proprietary procurement 
matters, as examples, and they have to be handled on a case-by-case 
basis. More often than not, such data is not in Washington, nor com- 
piled in any one central place. On some occasions, the subject material 
or documents requested have not been sufficiently identified to permit 
prompt response. Obviously, delays will be encountered in such in- 
stances and every attempt is made to so advise the requester. 

Again, a particular document may be the result of interagency 
action, and each of the participating agencies or departments must 
have time to evaluate the request and offer whatever input it may 
have to a suitable response. If information can be given in summary 
form or provided, in part, we attempt to obtain the agreement of the 
individual member or committee that the material offered will satisfy 
his requirements. In a vast majority of such instances, we are able to 
work out an arrangement suitable to the member or committee. 

On occasions, a congressional request is generated by a constituent 
inquiry about an area of unusual security sensitivity. Upon explaining 
this to the member, it is our experience that he generally fully realizes 
the circumstances and agrees that such information should not prop- 
erly be obtained for the constituent. This type of case is rather easy 
to handle because most members, even on their own, determine that the 
material is of such a nature that its true value is only suited for com- 
mittee use. 

As I mentioned earlier, some requests are not specific enough to 
identify the desired material. I believe the committee would agree that 
it is not a proper expenditure of DOD time or funds to compile re- 
search papers for student constituents. If we find a member attempt- 
ing to carry out major personal investigations by correspondence, we 
try to talk to the member, or his staff, early in order to find out what 
is wanted and we assist them if at all possible. 

Mr. Chairman and members of the committee, you probably can 
recall some instances where requests for information have been made 
of DOD and allegedly the information has not been furnished or there 
was an undue delay. I, nevertheless, reiterate that I think the Depart- 
ment of Defense does an excellent job of being responsive, but many 
times the right questions have not been asked, and it is largely a matter 
of clarifying the congressional request that is sometimes misinter- 
preted as a refusal to provide the information. Let me say now that I 
have never refused information as a matter of finality. I think if you 
review any complaint you may have, you will almost certainly find 
that the requester has received the substantive information he sought 
in one form or another. 

Again, to my knowledge we have never flatly refused or denied any 
request. The only possible exceptions to this are those few occasions 
where executive privilege was ultimately exercised. The most recent 



3156 

case in the Department of Defense occurred last year in response to the 
request from the Senate Foreign Relations Committee for out-year 
plaiining figures on foreign assistance legislation. 

A decision to exercise the executive privilege is not taken lightly 
and is not exercised by the Department of Defense. It is a privilege 
reserved for the personal decision of the President of the United States, 
and I don't think it has been abused by this administration. Though 
most of you are familiar with our directive, I would like to set forth 
that portion of DOD Directive 5400.4 that pertains to my office. This 
is paragraph IV.B.2. (a) and (b) : 

2. In the rare case where there is a question as to whether particular informa- 
tion may be furnished to a member or committee of Congress, even in confidence, 
it will normally be possible to satisfy the request through some alternate means 
acceptable to both the requester and the DOD. 

(a) In the event that an alternate reply is not acceptable no final refusal to 
furnish such information to a Member of Congress shall be made, except with 
the express approval of the head of the DOD component concerned, or of the 
Secretary of Defense. The Assistant to the Secretary of Defense (legislative 
affairs) shall be informed of any such submissions to the head of a DOD com- 
ponent or to the Secretary of the Defense. 

( & ) In the event an alternate means of supplying information requested by a 
committee of Congress proves unsatisfactory, final refusal to provide the in- 
formation to the committee may be made only by the President of the United 
States. The Assistant to the Secretary of Defense (legislative affairs) shall be 
responsible for insuring compliance with all procedural requirements imposed 
by the President or pursuant to his direction. 

When these problems present themselves, I turn immediately to 
our General Counsel. Mr. Fred Buzhardt. and we work with the partic- 
ular DOD agency whose information is involved in order to determine 
the best possible manner in which to satisfy the request. As our 
directive, attempts to make clear, it is only as a last resort, after all 
alternative means of providing the desired information are exhausted, 
that any consideration is given to recommending that the President 
invoke executive privilege. Needless to say, such recommendations 
must be supported by overwhelmingly persuasive reasons going to the 
constitutional responsibilities of the President. It is, therefore, not 
surprising that these recommendations are so rare and that we try so 
diligently to avoid the necessity for making them by satisfying the 
congressional requester. 

I believe this committee, and all those of the Congress to which we 
respond annually, recognize the magnitude of our work and would 
generally concur that we have made a very concerted effort to furnish 
necessary information on a timely and responsive basis. I have not 
touched upon the thousands of telephone calls requesting information 
that come into my office every year. Here again, I am confident that 
these requests are handled in a very expeditious and proper manner. 

I thank the committee and will be happy to answer any questions the 
committee may have, providing I have the necessary information. 

I would like to add, just to give you an idea of the magnitude, the 
number of requests we receive; we attempt to log most of our phone 
calls, and, obviously, the letters. Over the years, we have compiled the 
requests from different people which range from a static display at an 
air show all the way to letters of congressional inquiry. For calendar 
year 1971, for all the components of congressional affairs, that is, 
the Office of the Secretary of Defense, the Army, the Navy and the Air 



3157 

Force, including the Marines, we received 179,000 written inquiries 
and over 580,000 telephone inquiries. 

Mr. Horton. What were those figures again ? 

Mr. Johnson. For calendar year 1971, there were 179,218 written 
inquiries and 583,310 telephone inquiries. 

That probably does not include the notes I have picked up walking 
around the Hill. 

Mr. Mooriiead. I want to assure you that this subcommittee has no 
complaints about the efficiency of your operation, that is, the routine, 
and so forth. No question is raised about your operation. 

Questions have always been handled very efficiently by your office 
and from my personal experience I can say this. Obviously, the pur- 
pose of this hearing is to explore into the difficult questions. We wish 
to discuss the ones where for one reason or another, information prop- 
erly or improperly is withheld from (a) the Congress and (5) the 
public. 

This is the difficult area and not the matter of the efficiency of your 
operation in handling routine questions. 

Mr. Johnson. Thank you. 

Mr. Moorhead. It really comes down to the statement you made here, 
and I think it is extremely important that "Congress"' must be "fully 
informed of all Government programs and operations in order for 
government to function properly." 

I think this is the essence of the democratic representative system 
of government. It is this, the foremost issue, that I and other mem- 
bers of this subcommittee want to examine. The question is, Is the 
Congress being a full participant — as the Founding Fathers intended 
in the governmental process — or is it failing because we don't have 
all of the information needed for us to carry out our constitutional 
obligations and so represent the American people, and to carry out 
our responsibility to legislate. 

We have today a prepared statement by our able colleague, Congress- 
man Aspin, which without objection, I will make a part of the record. 

(The prepared statement of Eepresentative Aspin follows :) 

Prepared Statement of Hon. Les Aspin, a Representative ix Congress From 

the State of Wisconsin 

Mr. Chairman, first of all I wish to thank this subcommittee and its distin- 
guished chairman, the gentleman from Pennsylvania (Mr. Moorhead) for the op- 
portunity to submit this testimony. 

This subcommittee, in its current investigation, is tackling one of the most 
difficult problems faced by Members of Congress and the American people — learn- 
ing the truth from the executive branch of Government. 

As a' Member of Congress and a former official in the Pentagon, I am keenly 
aware of the problems encountered both by the general public and the Congress 
in obtaining information from the Department of Defense and other agencies. 

I would like to discuss with you today several experiences which I have had 
which reveal the administration's callous disregard for the needs of Members 
of Congress to obtain information from the executive branch. 

The members of this committee may be interested to know that using its secu- 
rity stamp as an excuse, the Pentagon is covering up tens of millions of dollars 
of cost overruns and lengthy delays in two Navy programs to build new sonar 
equipment. 

The news of more than $50 million in cost overruns on a new sonar system 
designed for submarines has been consciously withheld from the public by the 
Pentagon. 

76-253— 72— pt. 8 15 



3158 

These huge costs overruns and mammoth delays are being covered up not to 
protect the national security, but to protect the Navy brass from criticism. 

It's also interesting to note that even the General Accounting Office has not 
been permitted to publicly disclose the cost overruns or delays. 

Let me be a little more specific. The Navy is conducting a program of research 
and development to eventually produce the AN/SQQ-23 sonar. What the Navy 
has not told the public is that this sonar is behind schedule by a large number 
of years. However, the exact number of years and effects in this delay 
cannot be revealed to members of the committee in a public session because it 
might be considered a violation of security. 

The Navy is also developing the AN/BQS-13 sonar system for use in our 
submarines*. In this case, it is the cost overruns that are being hidden from the 
public's view. As I said earlier, the cost overruns amount to more than .$50 
million, however, I am not able to give you a precise figure in a public session. 

The Pentagon has also suppressed detailed reasons offered by the GAO sup- 
porting a recommendation that Secretary of Defense Melvin Laird review his 
decision to buy the new AN/BQS-13 sonar which will be placed on some of our 
destroyers and cruisers. The public will not be permitted to know why the GAO 
feels this particular program should be reviewed. 

Overall, Mr. Chairman, it seems ridiculous but I am unable to tell you the 
exact amount of the cost overruns or the length of delays because someone 
in the Pentagon may consider it a violation of security. 

It is a system whose principal purpose in my opinion has become to suppress 
vital information from reaching the public and the press. 

The members of the committee may be interested to know that I have written 
the Pentagon asking them to declassify both secret GAO reports on the two 
sonar systems so that the public can know the full truth about these overruns 
and delays. 

I am not asking anyone to reveal information vital to the national security. 
I am only asking the Pentagon to be honest and face up to the fact that these 
programs are in deep trouble. 

I hope that this subcommittee will study legislation that will permit classi- 
fication in the interest of national security and eliminate the present system which 
is designed to protect a bunch of self-servins: public relations conscious bureau- 
crats. The day has long since passed when the security stamp really means that 
a particular piece of information is vital to the defense of the United States. 
For more years than I wish to count, the security stamp has been an excuse to 
hide mistakes and cover up the bunglings of bureaucrats. 

The subcommittee might also be interested to know that I have encountered 
a irreat deal of difficulty in obtaining an unclassified version of the Peers Com- 
mission Report on the Mylai massacre. All the trials concerning the Mylai mas- 
sacre have been completed. One man's cas^ is still on appeal. However, the 
Pentagon stubbornly refuses to release the Peers Commission Report in an un- 
classified form. . 

As a result, on April 4 of this year, I filed suit in Federal District Court m 
Washington, D.C. pursuant to the Freedom of Information Act in order to obtain 
a copy of the report, The Defense Department has 60 days to answer my suit. 
Thus far, they have not filed a brief in Federal District Court. 

The public has a right to know the true story behind the Mylai massacre. In 
this case, the Pentagon is guilty of a double cover up, first, covering up the 
Mylai massacre, now covering up its own investigation of the tragedy. I plan 
to' pursue this matter in the courts and hope that either the district court or the 
appeals court will permit release of the report. 

Let me say that I believe this subcommittee has a vital role in revitalizing 
the Freedom of Information Act, The intent of the act is important and it has 
been underutilized by both members of the press and Members of Congress. 
It is my hope in the future when I encounter the brick wall in the Pentagon to 
file suit pursuant to the Freedom of Information Act. 

Rut the Freedom of Information Act is only a short-run solution. In the long 
run, we need a complete revision of our classification laws that will permit the 
classification of those matters truly vital to the national defense and national 
seeurifv and the public disclosure of those facts that are not. 

Once a sain, Mr. Chairman, thank you very much for the opportunity to submit 
my testimony to the committee. 

Mr. Mooriikad. As an example. Congressman Aspin cites the re- 
fusal of the Pentagon to make public the cost overruns on certain 



3159 

weapon systems. Such information was furnished to the Congress 
but it was provided on a security classification basis. Is there any 
justification for covering- up such cost overruns in the DOD procure- 
ment system ? 

Mr. Johnson. Let me address part of that and I will ask Mr. Buz- 
hardt to address the legal aspects of it. 

I think from the way information is forwarded, the reference is 
probably to system acquisition reports, which we are required to file 
qua rterly . That may be where the cost difficulties arise. 

As far as the public announcement, I think they were released to the 
committees 

Mr. Buzhardt. I believe they were released to the committees be- 
cause the cost figures are rarely, themselves, classified. Oftentimes, 
you have difficulty putting these cost figures into context because the 
particular type of defects on some weapons systems, depending on the 
type of weapon, cannot be classified. It would obviously be of interest 
to the enemy to know the limitations where requirements are falling 
down or where there are specific technological problems. 

So it is not the cost figures themselves, which are classified. I think 
if you notice in the newspapers on major weapons systems, they get 
plenty of advance notice. I met with the Securities and Exchange 
Commission staff last week and I found them intimately informed on 
the cost consequences of all major programs that are having diffi- 
culties. They, themselves, found no disclosure problems as they have in 
some cases in the past, because they were getting quite adequate public- 
ity in the newspapers. 

Mr. Moorhead. Congressman Aspin states something about a par- 
ticular sonar system, the AN/BQS-13. He has received the total 
amount of the cost overruns but not the total costs of the programs. 
He has received the cost overruns, but this data was classified so he 
could not make that figure public if he had testified before this 
subcommittee. 

Mr. Buzhardt. Well, I am not familiar with this specific case. Let 
me say one more thing. We have great difficulty in making information 
publicly known, although we do make information to the subcommittee 
known in great detail. 

I can remember a number of cases that I have dealt with where there 
is an overrun and there is a dispute between the Government and the 
contractor as to who is responsible for the additional costs. 

Now as you are well aware, these end up frequently in litigation. 
When you are faced with that condition, it is a question of whether the 
overrun is the fault of the Government. Most frequently, it is the 
Government's position it is not the liability of the Government, and 
the contractors' position is that it is. 

When you are going into litigation, it is frequently the case that the 
Government's position could be easily endangered by getting into 
any of the details in public before the early stages of the trial at least, 
as to the specifics of the Government's position. And so often we don't 
answer the industry's charges, so this is a limitation. 

Mr. Moorhead. I will see that you gentlemen have a copy of Con- 
gressman Aspin's testimony and, in particular, the testimony with 
respect to the particular sonar system. 

Mr. Buzhardt. We will be glad to go into that one for the record. 

(The following statement was subsequently submitted :) 



3160 

The testimony of Congressman Aspin to this committee on May 19 addressed 
three specific matters, the R. & D. program for the AN/SQQ-23 Sonar, the 
AN/BQS-13 Sonar and the Peers Commission report. 

With reference to the AN/SQQ-23. Congressman Aspin testified: 

"Let me be a little more specific. The Navy is conducting a program of re- 
search and development to eventually produce the AN/SQQ-23 sonar. What the 
Navy has not told the public is that this sonar is behind schedule by a large 
number of years. However, the exact number of years and effects in this delay 
cannot be revealed to members of the committee in a public session because it 
might be considered a violation of security." 

Response. The schedule slippage on the SQQ-23 program is not and has not 
been classified. There has been an overall slippage of approximately 4 years 
resulting from : 

An underestimation of the development effort ; 
Unanticipated technical problems ; and 

The application of a policy to require an adequately tested system per- 
formance before initiating production. 

With reference to the AN/BQS-13 Congressman Aspin testified : 
"The Navy is also developing the AN/BQS-13 sonar system for use in our 
submarines. In this case, it is the cost overruns that are being hidden from the 
public's view. As I said earlier, the cost overruns amount to more than $50 
million, however, I am not able to give you a precise figure in a public session. 
"The Pentagon has also suppressed detailed reasons offered by the GAO 
supporting a recommendation that Secretary of Defense Melvin Laird review 
his decision to buy the new AN/BQS-13 sonar which will be placed on some of 
our destroyers and cruisers. The public will not be permitted to know why the 
GAO feels this particular program should be reviewed." 

Respo?ise. The AN/BQQ-5. which was formerly designated the AN/BQS-13, 
DNA, is being developed for installation in our newest class of nuclear attack 
submarines and for backfit into our older nuclear attack submarines. 

The new AN/BQQ-5 selected acquisition report and GAO report are classified 
because of the compendium of information contained therein. Both the selected 
acquisition report and the GAO report bear the classifications of the most highly 
classified material contained therein. This information is made available to 
Congress and specific elements may be declassified and released after review by 
proper authorities upon specific request, Also contained in these documents is 
information regarding contract negotiations and award of the contract. Public 
disclosure of this information prior to award of the contract is not in the best 
interest of the Government. 

The current status of the AN/BQQ-5 development is that the program is on 
schedule, tests conducted to date indicate that all performance requirements 
will be met, and development costs are within the cost thresholds established by 
the Defense Systems Acquisition Review Council (DSARC) in May 1970. 

The status of the AN/BQQ-5 Sonar acquisition program is reported quarterly 
as part of the selected acquisition report (SAR) program. In its report, of the 
June 30, 1971, AN/BQQ-5 SAR, GAO Case No. 3400-51, the GAO reported an 
increase over the original planning estimate (and in another portion of their 
report referred to this as "cost growth") which are due mainly to two factors: 
(1) An authorized increase in the number of submarines the system is to be 
installed in; hence, an increase in the total, not unit, acquisition cost of the 
program, and (2) the possible incorporation of a specific new capability that is 
not a part of the original program. GAO recommended that the decision to 
incorporate the new capability be reviewed because "it is questionable whether 
the performance gain justifies the significant cost." This statement was unclassi- 
fied in the GAO report. 

Navy components which were submitted in response to the June 30, 1971, 
GAO report stated that the decision to incorporate the new capability into pro- 
duction systems has in fact not been made. Tests to determine the improved 
performance utilizing the new capability will be conducted this summer and fall. 
The results of these tests will be reviewed by the DSARC in December 1972. 
At that time the decision will be made to include or not to include the new capa- 
' bility in production systems. 

With reference to the Peers report, Congressman Aspin testified: 
"As a result, on April 4 of this year, I filed suit in Federal district court in 
Washington, D.C. pursuant to the Freedom of Information Act in order to obtain 



3IG1 

a copy of the report. The Defense Department has 60 days to answer my suit. 
Thus far, they have not filed a brief in Federal district court. 

"The public has a right to know the true story behind the My Lai massacre. 
In this case, the Pentagon is guilty of a double coverup, first, covering up the 
My Lai massacre, now covering up its own investigation of the tragedy. I plan 
to pursue this matter in the courts and hope that either the district court or the 
appeals court will permit release of the report." 

Response. The U.S. District Court for the District of Columbia on August 22, 
1972, rendered a decision in the case Les Aspin et al. v. Department of Defense 
et al. (Civil action No. 632-72) adverse to the plaintiff, Congressman Aspin, 
which upheld the decision of the Department of Defense not to release the Peers 
Commission report. A copy of the memorandum opinion and order of the district 
court is attached for incorporation in the record. 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

Civil Action No. 632-72 

Les Aspin et al., 
v. 
Department of Defense et al., 

MEMORANDUM OPINION AND ORDER 

Plaintiffs brought this suit under the public information section of the Ad- 
ministrative Procedure Act, 5 U.S.C. 552, popularly known as the Freedom of 
Information Act, to compel the Secretary of the Army to release a report entitled : 
"Department of the Army Review of the Preliminary Investigation Into the 
My Lai Incident," more commonly referred to as the "Peers Commission Report," 
the matter is before the court on cross motions for summary judgment which 
have been fully briefed. Having reviewed the pleadings and affidavits which com- 
prise the record in this case, the court finds that defendants' motion for summary 
judgment should be granted. 

The documents sought are investigatory files compiled for law enforcement pur- 
poses from disclosure because of specific exemptions provided in the Freedom 
of Information Act; 5 U.S.C. 552(b)(7). The documents consist of 42 bound 
books organized into four volumes. Volume I has 12 chapters and contains the 
actual report of investigation. It summarizes the nature and purpose of the Peers 
inquiry, the evidence uncovered, an analysis of those factors which contributed 
to the Son My incident, a statement of conclusions regarding the suppression 
of evidence, and various findings and recommendations made by the Peers Com- 
mission which are interspersed throughout the volume. Several chapters 
from volume I were released to the public in March 1970, with minor deletions. 
Volume II consists of verbatim transcripts of witness testimony. Volume III 
consists of documentary evidence, and volume IV contains statements taken by 
Army criminal investigators, either as part of related criminal proceedings 
or as part of the Peers investigation. See, affidavit of Mr. Bland West. 

The applicable test for determining whether the investigatory files exemption 
applies to particular documents is stated in Bristol-Myers Co. v. F.T.C., 138 
U.S. App. D.C. 22, 26, 424 F. 2d 935, 939 (1970), cert, denied, 400 U.S. 824. The 
test is whether the files sought relate to anything that can fairly be characterized 
as an enforcement proceeding. The affidavits of Mr. Robert Berry, General 
Westmoreland, and Col. George Ryker clearly indicate that the report was in fact 
the basis for the bringing of charges under the Code against both officers and 
enlisted men. Because the documents which plaintiffs seek figured prominently 
in the initiation of subsequent court-martial proceedings, they meet the test of 
Bristol-Myers. Furthermore, at least one of these proceedings, that involving 
Lieutenant Calley, is still on appeal. 

An additional reason for exempting the report from public disclosure is the 
specific exemption in the Freedom of Information Act which exempts from 
mandatorv release interagency or infra-agency documents which would not 
be available by law to a party other than an agency in litigation with the agency. 
5 U.S.C. 552(b)(5). It is well established that this exemption is designed to 
protect findings and recommendations prepared by a subordinate in order to 
inform and advise a superior. Ackerley v. Ley. 137 U.S. App. D.C. 133, 138. 420 
F. 2d 1338, 1341 (1969). The affadivit of Mr. Bland West, describing the docu- 



3162 

merits desired by the plaintiffs, shows that volume I of the Peers report falls 
within the terms of this exemption because that volume consists principally 
of internal working papers in which opinions are expressed and policies formu- 
lated and recommended. In the court's opinion the other volumes are appendices 
to volume I and should share the same protection accorded that volume. 

For the above reasons, the court hereby grants defendents' motion for sum- 
mary judgment. 

John H. Pratt, 
U.S. District Judge. 

Mr. Moorhead. If this involves a case where there may ibe litigation 

in the courts, then it is not a case of security classification; is it? 

Mr. Buzhardt. That is correct. It is not done in that case on the 
question of a security classification. 

Mr. Moorhead. Congressman Aspin says that the data on over- 
runs in the ANBQS-13 was stamped with a security classification 
label and that was the reason given. I feel that this is an abuse of the 
classification system. However justified it may be on the other grounds, 
this refusal to make this 

Mr. Buzhardt. If I could just interrupt, I would have to look at the 
particular correspondance to see what was contained in the letter. 
Again, we might have had a misunderstanding in the explanation of 
how the cost rose. They may well have said, discuss the classified 
performance characteristics. A further discussion may reveal that the 
figures, themselves, are not classified. 

Mr. Moorhead. We want to be very sure that the classification 
system is properly used to conceal things from a potential enemy that 
are essential to the national defense, but not to conceal an embarrass- 
ment to a particular branch of the armed services — cases where a 
particular weapons systems costs a lot more than anybody anticipated. 

Is Mr. J. A. Pitkiel of the Department of Defense in the room ? 

Mr. Pitkiel. Yes. 

Mr. Moorhead. Would you please come forward ? 

STATEMENT OF J. A. PITKIEL, DEPARTMENT OF DEFENSE 

Mr. Moorhead. Do you solemnly swear that the testimony you are 
about to give this subcommittee will be the truth, the whole truth, and 
nothing but the truth, so help you God ? 

Mr. Pitkiel. I do. 

Mr. Moorhead. Mr. Pitkiel, are you an employee of the Department 
of Defense and, if so, in what capacity ? 

Mr. Pitkiel. I am an assistant in Mr. Johnson's office. 

Mr. Moorhead. Have you been attending the hearings of this sub- 
committee on a regular basis ? 

Mr. Pitkiel. More or less. 

Mr. Moorhead. Do you make reports to your superiors on these 
hearings'? 

Mr. Pitkiel. Just an informational report of questions and answers, 
and on statements of the witnesses that appear. 

Mr. Moorhead. Are these reports in writing? 

Mr. Pitkiel. Yes. 

Mr. Moorhead. Can you supply those for the use of the 
subcommittee? 

Mr. Pitkiel. Yes, sir. 



3163 

Mr. Moorhead. Thank you. We would be pleased to receive them. I 
presume they are not classified so they can be received publicly? 

Mr. Pitkiel. Yes, sir. 

Mr. Johnson. If I might add, along that line, when we have De- 
partment of Defense witnesses testifying in open session, we usually 
have people there to assist and also to write up the minutes and to 
pick up the statements that were made. In the case of Mr. Pitkiel, he 
works primarily for me directly in most of these areas, and I would 
have to say I don't have these reports, unless he kept copies of some of 
them. 

I don't have copies, but if he has them, I would be willing for them 
to be made available to you. 

Mr. Moorhead. That is all we want. 

Mr. Pitkiel. The punctuation might not be too good. 

Mr. Moorhead. If we put them in the record, we will permit you to 
correct grammatical errors, as we do other witnesses. 

(The information referred to above is in the subcommittee files.) 

Mr. Horton. Why do we want this information ? 

Mr. Moorhead. I would like to see what the Defense Department 
thinks about our hearings, and Mr. Johnson apparently has no objec- 
tion. I don't intend to make them part of the record unless there is 
something very dramatic in them, in which case it would, of course, be 
by unanimous consent. 

I yield to Mr. Erlenborn. 

Air. Erlenborn. Mr. Johnson, do you have any relationship with the 
GAO? 

Mr. Johnson. Do I ? 

Mr. Erlenborn. Yes. 

Mr. Johnson. Only on requests, and these are usually worked 
through our General Counsel. Where GAO is doing work with us, on, 
say, appropriations, this would be through the General Counsel. 

Mr. Erlenborn. GAO is an arm of Congress, and I don't know if 
congressional relations would include them 

Mr. Johnson. No, we have met occasionally when we had a matter 
of information to be turned over but mainly just the formalities on it. 
On the substantive things, it is usually our General Counsel. 

Mr. Erlenborn. I don't know if any of you here would be in a posi- 
tion to respond to some questions I have relative to a statement from 
GAO in the Senate hearings concerning the lack of access to infor- 
mation. 

Mr. Buzhardt. I can address that. 

Mr. Erlenborn. You can? 

You probably are aware of the statement by the General Accounting 
Office Comptroller General concerning several instances where, in the 
performance of their audits, they complained that they were unable 
to get access to certain documents, or even to inspect physical facilities, 
under the control of the Department of Defense. 

Are you familiar with the statement of Mr. Keller that was sub- 
mitted to the Senate ? 

Mr. Bfzhardt. Yes, they were both submitted to the Senate and 
submitted to you. Let me say, initially, there has been a series of dis- 
cussions and working meetings going on between Mr. Laird, the 
Secretary of Defense, and Mr. Staats, the Comptroller General, be- 



3164 

ginning some months ago to resolve such difficulties as have existed. 
These have progressed, you might say. to the working level with the 
Division Heads at GAO, with Mr. Moot, the Comptroller of the 
Department of Defense, and myself. 

As Mr. Keller testified before this committee, there was an exchange 
of correspondence between the Secretary and the Comptroller General. 
I believe there were three personal meetings. There have been many 
meetings between myself and Mr. Moot and the Comptroller General's 
people. 

I think we have both issued preliminary instructions to the field, 
which should eliminate many of the problems. We have managed to 
isolate very narrowly the difficult areas and at the current time, one 
member of my staff, one representative of the Joint Chiefs of Staff, 
and two of the people from the General Accounting Office are on a 
field trip to the various command headquarters with a view toward 
working out a modus operandi, or a mechanism for resolving to the 
maximum extent possible the difficulties with access which GAO has 
experienced. 

In most of the cases the General Accounting Office has cited, they 
have been dealing with subordinate headquarters and field units. 
As you know, when they go into a particular country, they are dealing 
with a military assistance advisory group, commanders who work 
predominantly for the State Department, and certainly the Ambassa- 
dor in the country. He has a dual chain of command or supervision, 
if you will, and we are not dealing with an easy problem to resolve 
in many cases. 

We are hopeful that most of the GAO's requests can be answered. 
We are attempting now to determine what information in the field is 
essential to their work and how much of it is in Washington. I think 
we have pretty well resolved it as much as possible. 

As much as possible, this information should be requested and ad- 
dressed at the Washington level before they go on their field trip, 
because one of the major problems has been the necessity for the field 
to refer the documents back to Washington. This encourages delay. 
Now, it is the position of the Secretary of Defense that GAO should 
not and cannot have unlimited access to any file cabinets they want 
to walk into at the Department of Defense. 

Mr. Erlenborn. Let me explore that with you. I would like to know 
the basis of the problem and its scope. First of alb if an auditor of the 
GAO would seek access, for instance, to the Thni and Korea military 
installations over in Vietnam, I believe it was, would a security clear- 
ance be necessary ? 

Mr. Buzhardt. That is right. 

But in that particular case, they are seeking access to the bases of a 
foreign nation and not to our bases. Obviously, we don't have the same 
degree of access in any sense to a foreign military base that we have 
to our own, and we are dealing with foreign nations and not our own 
people. 

Mr. Erlenborn. Did I understand that the difficulty was not that the 
. Department of Defense did not want to give them access but rather 
that they were refused access by the Thai or Korean military com- 
manders? 

Mr. Bfzttardt. No; in many cases, if GAO wanted to go to an 



3165 

allied installation — and I am not familiar with those specific cases 
but I am sure it applies — the contacts with these organizations are 
usually either by the Department of Defense, the Department of 
State, or AID. They would be just one more stranger, as far as the 
foreign national is concerned, if they turned up at their gates. 

The degrees of rapport we have with the foreign officers or foreign 
personnel vary quite considerably. There are many factors to be con- 
sidered. Some of the factors are what is the state of relations at the 
moment, and so on. There are a great variety of considerations that 
enter into these things and in some cases, I am quite sure either the 
Department of Defense or the State Department would feel that it 
would be inadvisable to approach them for their records at that time. 

Mr. Erlenborx. Well, are you aware in these cases whether the GAO 
was seeking to look at the records of foreign military personnel, or 
were they seeking access to the American advisers at those bases? 

Mr. Buziiardt. I am not aware specifically. 

Mr. Erlenborn. There is no problem of security clearance, is there ? 

Mr. Buzhardt. It is not a problem of security clearance. Now, in 
some cases — and I can't think of any offhand — but it is conceivable 
it would be a security problem. Obviously, if they wanted information 
about an immediately pending operation, I think they would be asked 
to wait. 

Mr. Erlenborn. In the same case, there was reference to a SCOPE 
document. I believe GAO was not able to obtain it. It was the basis 
apparently for reimbursement to the Thai and Korean forces and, 
in performing their audit, GAO said there was no way for them to 
completely audit without seeing the agreement on which these reim- 
bursements were made. Now, on what basis would that document 
be denied to GAO? 

Mr. Buziiardt. I am not familiar with that specific document. 

Mr. Erlenborn. Has the Department of Defense responded to this 
review or in listing the problem areas that GAO has ? 

Mr. BrziiARDT. I am not sure. The ones which they have submitted 
to the Department of Defense for comment, I feel sure have already 
been commented on, but we have in the various committee hearings 
or in the press, likely found out about GAO reports, which we have 
never previously been aware of. 

Obviously, we cannot comment on them if we don't know what they 
say. It is their usual custom over the years to submit their reports to 
the Department of Defense for comment bef ore they are made public ; 
at least, for verification by Defense. There have been numerous devia- 
tions from that procedure in recent times. 

Mr. Erlexborx. I doubt that we could take time this morning to go 
into these in detail, even if you would be prepared to answer them in 
detail : but would the Department be prepared to answer each of the 
allegations contained? I can call your attention to the statement on 
page 310 

Mr. Buziiardt. We would be glad to. 

Mr. Erlenborn (continuing). Of the hearings before the Subcom- 
mittee on the Separation of Powers of the Committee on the Judiciary 
of the U.S. Senate, 92d Congress, first session. The dates of these hear- 
ings are: July 22. 28. 20; August 4 and 5 of 1971. 

This is a printed report of the hearings and it is entitled : "Executive 
Privilege — the Withholding of Information by the Executive." 



3166 

Mr. Buzhardt. Yes, I was a witness at those hearings. 
Mr. Erlenborn. I would appreciate it if yon would furnish us then 
a written answer to each of the allegations contained in that. 
Mr. Buzhardt. I would be glad to. 
Mr. Erlenborn. Thank you. 
(The following statement was subsequently submitted:) 

The SCOPE Document 

The GAO alleges that the SCOPE document, to which it was denied access, was 
prepared and implemented by the Department of Defense, that it described the 
terms of the U.S. commitments to Thailand as they related to reimbursement 
rates and procedures regarding- Thailand's participation in Vietnam and that 
the document served as the basis for approval of reimbursement claims. 

The so-called SCOPE document was a draft internal proposal serving as a 
tentative basis of negotiation between the United States and the Royal Thai 
Government relating to reimbursement rates and procedures. Discussions with 
the Thais concerning SCOPE were suspended by the Royal Thai Army represent- 
atives at a meeting with U.S. representatives in June 1970. Discussions over 
SCOPE were never reopened since it was considered doubtful if complete agree- 
ment could be reached. Moreover, the then impending redeployment of Thai 
forces from Vietnam more or less eliminated the necessity of achieving agree- 
ment on the SCOPE document. 

Actually, reimbursement of Thai expenditures was made pursuant to the 
terms of a letter dated November !>, 1967, and signed by our Ambassador to Thai- 
land. Moreover, the GAO was given an accurate, comprehensive list of the U.S. 
reimbursement rates for Thai forces and Thai pay scales so that it is difficult 
to understand how the denial of the SCOPE document impeded the GAO in 
discharging its responsibilities. The SCOPE document was withheld because it 
was an internal, tentative, draft proposal that never received any official status, 
sanction or approval. 

Visits to Thai and Korean military installations in Vietnam 

The purpose, according to the GAO, in visiting the Thai and Korean military 
base camps at Bearcat and Qui Nhon, respectively, was to make visual observa- 
tions of the condition and utilization of facilities and equipment furnished by 
the United States under military assistance programs to free world forces in 
Vietnam. Assurances were given that GAO personnel would not contact Thai 
or Korean personnel nor review records maintained by units of either. They 
would, however, during the visit, wish to talk to U.S. military liaison personnel 
assigned to each installation. 

Contrary to the allegations of the GAO, the nature of the occupation and con- 
trol over these military base camps by the Thais and Koreans was tantamount to 
the exercise of almost absolute sovereignty. Accordingly, any visit to either of 
these bases required that all visitors be introduced to the base commanders. In 
such a courtesy interview, the reason for the visit would unquestionably arise and 
a truthful answer would require an admission that representatives of an arm 
of the U.S. Congress were there to investigate the foreign government ami the 
manner in which it cared for and utilized its own equipment. Under the military 
assistance program, legal title to such equipment is conveyed upon transfer to 
the foreign government subject to certain restrictions regarding disposal or 
retransfer to others without U.S. consent. The impropriety of such an investiga- 
tion by the GAO and its prejudicial impact upon our foreign relations with those 
countries are self-evident. 

The U.S. military liaison personnel assigned to those installations were, how- 
ever, made available to the GAO for interview at other locations under U.S. 
control. 

Review of U.S. occupation costs in Berlin, Germany 

The costs incurred by the allied occupying powers of West Berlin — the United 
States, France, and Britain — to occupy West Berlin are borne by the Federal 
Republic of Germany, such costs being paid for by West German authorities from 
German funds appropriated by the West German Government. For the United 
States, this amounts to the equivalent of about $50 million annually and in- 
cludes all costs associated with our presence there except for the pay of U.S. mili- 
tary personnel stationed there ($20.G million) and approximately $400,000 in U.S. 



3167 

appropriated funds for incidental, associated costs that simply cannot he paid 
for in German deutsche marks. 

Expenditures from the special deutsche mark account are made by German 
authorities upon receipt of proper authorization from designated U.S. offi- 
cials and are charged accordingly to the West German budget. Therefore, 
except for the equivalent of approximately $4.6 million out of the $50 million 
annually which is drawn down in cash to pay the salaries of Department of 
the Army civilians, military quarters allowances, certain per diem expenses, and 
government bills of lading, these German marks do not change hands nor come 
into the actual physical possession of U.S. personnel. 

The German Federal Audit Court, which is roughly equivalent to our own 
GAO, is the final audit authority for the occupation costs and mandatory ex- 
penses accounts for the western sectors of Berlin and, pursuant to such authority, 
prepares and submits annually to each sector commandant, a final report on the 
audit of occupation costs in his sector. 

The position of the GAO is that the primary objective of its proposed audit is 
to satisfy itself that the costs of the United States properly chargeable to the 
West German Government for Berlin occupation expenses are. in fact, borne 
by the Federal Republic of Germany. However, inasmuch as all expenses asso- 
ciated with our presence in Berlin, except the pay of military personnel and the 
$400,000 of U.S. appropriated funds, are now borne by the Federal Republic 
of Germany, the GAO can readily achieve its stated objective by auditing the 
$400,000 of U.S. appropriated funds to determine whether any or all of it should 
be shifted over to the German budget. The GAO, however, rejected this alterna- 
tive. However, the GAO did review Army Audit Agency reports and internal 
review reports of the Berlin Brigade. 

There is little doubt that our relations with the Federal Republic of Germany 
and the other occupying powers would be seriously impaired if American auditors 
of the GAO were to check on the work of German auditors in auditing German 
funds appropriated by the German Government, disbursed by German authorities 
and already properly audited by an agency of the German Government. 

Review of U.S. military operations and commitments in the Philippines 

In the conduct of this review, the GAO sought to make its own determination 
of what our foreign policy and national security interests should be with refer- 
ence to the Philippines rather than properly confining its inquiry to an assess- 
ment of the efficiency of the management of those activities being conducted 
there. Examples of some of the questions and data requested by the GAO are as 
follows : 

(a) The roles of U.S. military bases in the Philippines, individually and 
collectively, with regard to U.S. defense objectives in the Philippines and 
worldwide. 

(5) The U.S. negotiating position and the concessions the U.S. Govern- 
ment is willing to make in connection with the renegotiation of the military 
bases agreements. 

(c) Why is it necessary to maintain military facilities in the Philippines? 

(d) What contingencies or alternatives are available in the event that 
access to Philippine bases should be denied? 

(e) Provide justification for the continued operation and use of each 
military installation and discuss how the operations of each base relate to 
general war plans and major contingencies, etc. 

We do not challenge the authority of the GAO, either on its own initiative or 
upon the request of a congressional committee, to review the results of approved, 
ongoing programs with a view toward making recommendations looking to 
greater economy or efficiency in public expenditures. We do not, however, con- 
strue the Budget and Accounting Act as authorizing the GAO to conduct an in- 
vestigation for the purpose of advising the President, the Department of De- 
fense, or the Congress as to whether our foreign policy, national security in- 
terests, and military operations are advisable, adequate, unwise, or prudent. 
Consequently, requests for information of the kind cited above necessarily were 
not honored. 

Review of U.8. assistance to Philippine Government in support of the Philippine 
Civic Action Group (PHILCAGV) 
Personnel in the field requested guidance as to the relensibility to the GAO of 
certain sensitive documents relating to the deployment to Vietnam of the Philip- 
pine Civic Action Group. One such reouest. for example, related to a confidential 
exchange of correspondence personally between President Marcos of the Philip- 



3168 

pines and President Johnson of the United States. Instructions were, therefore, 
issued to the effect that documents of such sensitivity should be reviewed in 
Washington before being released. Moreover, this relieved the personnel in the 
field from the rather burdensome anxiety of inadvertently releasing a document 
the disclosure of which might prejudice our relations with the Philippine Govern- 
ment. Although this did inject an additional time-consuming element in the work 
of the GAO, nevertheless, the reviewing was done, it is believed, with relatively 
expeditious dispatch under the circumstances. 

Twelve documents were in the process of being reviewed and were about to be 
released when the GAO concluded its investigation by filing its final report 
to the Congress. In having completed its report and terminated its investigation, 
it was assumed by force of circumstances that the documents were not, after 
all, essential to the inquiry and that the requests were, therefore, no longer 
outstanding. 

We know of no instance where access was denied, as alleged, to records on 
the regular military assistance program unless it related to the tentative plan- 
ning data of the military assistance program in the out years for which executive 
privilege was invoked on August 30, 1971. 

Review of military assistance— Republic of China 

In this allegation, the GAO refers to the denial of a request for "a document, 
which concerned the military planning and rationale used in meetiug overall 
U.S. military objectives. The planning outlines existing and potential threats, 
both internal and external, the related equipment and manpower needed to meet 
a variety of situations and contingencies, and the priorities established for the 
U.S. support of recipient country forces." 

In its allegation, the GAO neglects to mention the fact that the document in 
question is, in reality, the joint strategic objectives plan (JSOP), the joint war 
plans, military objectives, and requirements for the development of forces for 
the Republic of China. 

Again, we do not construe the Budget and Accounting Act as authorizing the 
GAO to conduct an investigation for the purpose of advising this Department or 
the Congress whether war plans. Armed Forces requirements of a friendly 
nation, or the level of funding for military assistance of a particular country are 
adequate or inadequate. It is not in the national security interests of the United 
States to release or disclose war plans, emergency war orders or military con- 
tingency planning. 

The second allegation related to the denial of a request for a document en- 
titled "Taiwan Air Defense Study." This was a preliminary study of various 
aspects of the air defense of Taiwan prepared by personnel of the Pacific Air 
Force. At the time of the GAO request for it, the study had not yet then even 
been forwarded to CINCPAC for approval or disapproval. Since the study had 
not received any official sanction by the higher authority required to review it 
before it could be implemented, it necessarily had to be treated as a draft, internal 
working document which, because of the yet-to-be-approved status, are not 
normally releasable outside the executive branch. Of course, had the study 
been approved as an ongoing program in the process of implementation, access 
would have been granted without question. 

Review of administration of tiic military assistance program 

The first allegation under this topic relates to the denial of GAO requests made 
in China, Korea, and Thailand for "data on recipient country force capability 
and operational readiness status." Stated somewdiat differently, the GAO wanted 
to know the combat effectiveness of the armed forces of China, Korea, and 
Thailand in order to conclude whether the level of military assistance and mili- 
tary training was adequate or inadequate. This same pidnciple was discussed 
earlier as being outside the authority conferred upon the GAO by the Budget 
and Accounting Act. Moreover, it would not be in the public interest to disclose 
all we may know of the composition, strength, order of battle, operational readi- 
ness, and combat effectiveness of the armed forces of friendly nations. If the 
roles were reversed, would we look kindly upon the release by a foreign friendly 
government of such information about our own Armed Forces? 

A somewhat similar difficulty is presented by GAO requests for reports pre- 
pared by performance evaluation groups. These so-called PEG reports are de- 
signed as internal management tools by which to evaluate the effectiveness of 
a recipient country of military assistance in utilizing equipment already 
provided. The criticisms, opinions, and recommendations in these PEG reports 
are frank and forthright so that the disclosure of their contents verbatim out- 



3169 

side the executive branch could risk adverse reactions from some of the govern- 
ments concerned. Moreover, the value of the reports as an instrument of man- 
agement would be impaired because the authors would begin to temper their 
remarks once it was made known that the reports were to be more widely 
disseminated. 

Again, in an effort to be cooperative and to facilitate the work of the GAO 
while preserving the value of the reports, briefings on the contents of the reports 
have been given to the GAO. 

Review of the use of Department of Defense excess Defeti.se articles in the 
military assistance activities 
The allegations under this topic relate to another request for the joint stra- 
tegic objectives plan for Greece and for trip reports which, in essence, are the 
same as PEG reports, both having been discussed previously. 

Mr. Moorhead. As a subcommittee of the Government Operations 
Committee, we are interested in the economy and efficiency of the 
Government. 

We also have with us today invited witnesses from the Internal 
Revenue Service, and I wonder if we could proceed this way. Mr. Ilor- 
ton is going to make a brief statement and I think it will only take a 
few minutes. So if you gentlemen would stand aside for a few minutes, 
I would like to call the witnesses from the Internal Revenue Service. 
We want to get the Internal Revenue Service back to their noble tasks 
of extracting dollars from the taxpayers of America. 

STATEMENT OF JOHNNIE M. WALTERS, COMMISSIONER, INTERNAL 
REVENUE SERVICE; ACCOMPANIED BY LEE K. HENKEL, JR., ACT- 
ING CHIEF COUNSEL: AND DONALD 0. VIRDIN, CHIEF, DIS- 
CLOSURE STAFF, OFFICE OF ASSISTANT COMMISSIONER FOR 
COMPLIANCE 

Mr. Moorhead. Commissioner Walters, would you and your asso- 
ciates please stand ? 

Do you solemnly swear that the testimony you are about to give this 
subcommittee will be the truth, the whole truth, and nothing 7 but the 
truth, so help you God ? 

Mr. Walters. We do. 

Mr. Moorhead. We welcome you, but only briefly, frankly, Mr. 
Commissioner. 

I think there has been a total lack of communication between this 
subcommittee, the Internal Revenue Service, and the staff of our sub- 
committee. Last week our staff discussed the problem that we wanted 
to pose to you but you must have misunderstood, because in my judg- 
ment the prepared statement you have submitted is not responsive to 
the inquiry of this subcommittee. 

We are not interested in having this subcommittee or its staff, or the 
GAO or its staff, look at individual income taxes, or other tax returns. 
per se. We are interested in seeing to it that the Internal Revenue 
Service be covered by the kind of management audits that the General 
Accounting Office conducts in every other department and agency 
of the U.S. Government. 

Congress appropriates almost $1 billion a year for the operation of 
the Internal Revenue Service and the Congress, through its arm. 
the General Accounting Office. According to GAO testimony here last 
week, they have no way of really determining the efficiency and the 
economy of the operations of the IRS. 



3170 

The statement you have submitted merely states that under your 
interpretation of the law and regulations, they have no such right. This 
subcommittee is interested in the underlying legal basis for your view, 
not just the fact that some IRS general counsel in 1968 stated an opinion 
that the GAO had no such right, which the GAO disputed in great 
detail. We want your interpretation of the legislative history of the 
sections of the law which you cite as the basis. The question is, should 
GAO have the right to conduct management audits 1 Maybe legisla- 
tion in the Congress is needed to clarify this dispute ; maybe it isn't ; 
maybe you are a special animal whose management functions should 
not be audited. . 

These are the issues. The statement which has been submitted is un- 
responsive to our request, in my opinion. It was at Mr. Horton's sug- 
gestion that we asked you to come up and discuss this problem of GAO 
access. After reading your statement, it seems that we are two ships 
passing in parallel courses, but never meeting the issues that are really 
of concern to this committee — one, information that is available to the 
Congress through its arm, the General Accounting Office ; and, two that 
Congress is concerned with the economy and the efficiency of the Gov- 
ernment, including how IRS spends its appropriated funds. 

My suggestion is that we release you as witnesses today. Let's get our 
staffs together to clarify the basic questions I have just outlined, so 
that your testimony can be more responsive, I am going to suggest 
Thursday morning, June 1, at 10 a.m., in room 2154. I know that is 
agreeable, with Mr. Horton. I don't know if it is agreeable with Mr. 
Erlenborn or Mr. Glide. Let's see if we can't face up to this issue 
squarelv at that time. . 

For the purpose of the record, I should include at this point my letter 
to you requesting your appearance; without objection, it will be made 
a part of the record at this point. 

(The document referred to follows :) 

Foreign Operations and Government Information Subcommittee, 

Washington, B.C., May 16, 1972. 

Hon. Johnnie M. Walters, 
Commissioner, Internal Revenue Service, 
Washington, B.C. 

Dear Mr Walters- This is to confirm the subcommittee staff conversation 
this afternoon with Mr. John Hanlon of your office, in which he was apprised 
of the subcommittee's desire to receive testimony from IRS on serious matters 
raised by Deputy Comptroller General Robert E. Keller concerning the IRb 
failure to provide certain records and other information available to GAO to 
permit an effective review of IRS operations and activities. 

The subcommittee would appreciate your testimony at the hearing on May 24 
at 10 a m in room 2203, Ravburn House Office Building. I would expect that 
you would also make available a witness from your legal office to discuss the 
reasons why IRS has not complied with the provisions of the law. 

A copv of the statement by Mr. Keller is attached. As was explained to Mr. 
Hanlon ■ a copy of the transcript containing several colloquys on this same 
subject 'during our hearing today will also be available for your use in prepara- 
tion of testimony. , . . . 

Enclosed for your use is a copy of the committee rules which govern our 
hearings As you will note, 50 copies of your prepared testimony should, without 
fail be delivered to the subcommittee office 24 hours in advance of your testimony. 

Your full and complete cooperation in this important matter will be appre- 
ciated. 

Sincerely, _ _ ,_ 

William S. Moorhead, 

Chairman. 



3171 

Mr. Moorhead. I now yield to Mr. Horton. 

Mr. Horton. Thank you. 

At the hearing on May 16 when Deputy Comptroller General Keller 
testified, he documented on page 10 of his testimony the difficulties 
the GAO has in getting information from the Treasury and from the 
Internal Revenue Service. 

Xow, I asked if they would prepare a memorandum to give us an 
idea of their problems, and they have. I want to concur in what the 
chairman has said with regard to the testimony that you have pre- 
pared to make here today. I don't think it is responsive to the problem 
that, was presented by the GAO. It would be possible, I guess, for us 
to ask you questions about this but I think it would be more helpful 
to give you an opportunity to study this additional information which 
I have been furnished and which the subcommittee has been furnished 
at my request by the Comptroller General's Office. 

For example, I have here a copy of the memorandum I just received 
from Mr. Keller, and the first three paragraphs I will read. They 
are very short. This is entitled: ''GAO Access to Records Problems 
at the Internal Revenue Service." 

It says: 

GAO review efforts at the Internal Revenue Service have been materially 
hampered and in some cases terminated because of the continued refusal of 
the Internal Revenue Service to grant GAO access to records necessary to 
permit it to make an effective review of Internal Revenue Service operations 
and activities. 

Without access to necessary records, GAO cannot effectively evaluate Internal 
Revenue Service administration of operations involving billions of dollars of 
annual gross revenue collections (about $192 billion in fiscal year 1972) and 
millions of dollars in appropriated funds (about $978 million in fiscal year 1971). 
Such an evaluation we feel would greatly assist the Congress in its review of 
Internal Revenue Service budget requests and its appraisal of Internal Revenue 
Service operations and activities. Without such access, the management of the 
largest collection agency in the world, employing about 65,000 people, will not be 
subject to independent audit. 

GAO has taken every opportunity to impress upon Internal Revenue Service 
officials that it is not interested in the identity of individual taxpayers and does 
not seek to superimpose its judgments for that of the Internal Revenue Service 
in individual tax cases ; rather, GAO is interested in examining individual tax 
transactions only for the purpose of and in the number necessary to serve as a 
reasonable basis for evaluating the effectiveness, efficiency, and economy of 
selected Internal Revenue Sendee operations and activities. GAO has in general 
directed its efforts toward those areas where GAO believed improvements in 
current operations would bring about better IRS administration of programs, 
activities, and resources. 

Then it goes on and talks about access to records denied on congres- 
sional request assignment. This has to do with the chairman of the 
Legal and Monetary Affairs Subcommittee of the Government Opera- 
tions Committee requesting GAO to review Internal Revenue Service's 
effectiveness in collecting Federal highway use taxes and access to 
records denied on GAO initiated assignment. 

This had to do with the Alcohol, Tobacco, and Firearms Division. 
Another is a pending request for access to economic stabilization pro- 
gram records. 

So I think they pretty well spelled it out here, and it is not as the 
chairman said, just a request by the GAO to look at individual returns, 
but it is a much broader mandate with regard to the GAO's function 
and the possibility of it reporting to the Congress. 



3172 

So I would agree with, the chairman that I think it would be much 
more helpful and fruitful if we could furnish you a copy of this 
memorandum from the GAO and give you an opportunity to come back 
and testify based on this information. 

As the chairman said, it mn.y be that we have a problem that is go- 
ing to require legislation but, as I understand it, this is a ruling from 
your General Counsel and perhaps it can be ironed out by communi- 
cations between your staff and our staff and perhaps by working the 
thing out with the GAO. Maybe it is a problem that is not solvable 
that way, and maybe we would have to do something else. 

Mr. Moorhead. Just one other thing — could you submit to this sub- 
committee the IRS General Counsel's opinion dated September r>. 
1967, on this issue ? 

Mr. Walters. Yes, sir. 

Mr. Horton. It may be you would want to review that opinion of 
the General Counsel. I realize it was 5 years ago and it may be that 
the General Counsel now would have a different opinion in regard 
to that. So suppose we give you this memorandum, and give you an 
opportunity to look at that and perhaps you can be more responsive 
to the problems raised by GAO. 

Mr.Gude? 

Mr. Gude. No questions. 

Mr. Horton. The Commissioner might want to say something. 

Mr. Walters. I think if you want us to respond to these specifics, 
you are certainly right that we should postpone this hearing until 
we see them and study them. We will furnish that opinion you referred 
to plus — I wish to say this has been reviewed since that opinion — and 
we will furnish you all of this. I think the chairman is right in think- 
ing that possibly you should be thinking of legislation because the 
auditor reviewers we have over the years, have indicated that Con- 
gress chose the joint committee as the one that would investigate and 
supervise us. And let me say this, the service welcomes congressional 
supervision. We need it. So we aren't trying to avoid it. 

Mr. Moorhead. Then you are one of the few agencies that welcomes 
such congressional supervision. 

Mr. Walters. We have one of the toughest jobs, too. So, we know 
we need help and we will be pleased to come back. 

Mr. Moorhead. Yes, I think we understand the situation better 
now. This is the reason I asked the DOD to step aside temporarily. 
I think this has been cleared up. Thank you very much. Will you have 
someone call us back ? 

Mr. Walters. Yes, sir. 

Mr. Horton. I think it would be helpful to us if .you did detail and 
specifically set forth what the General Counsel's opinion was and 
trace the history and give us as much background information as you 
can with regard to the conflict that exists between the GAO and your 
agency. 

Mr. Walters. We will, sir. 

STATEMENT OF RADY A. JOHNSON AND J. FEEL BUZHARDT OF 
THE DEFENSE DEPARTMENT— Resumed 

Mr. Moorhead. We will now continue, Mr. Johnson. 
Mr. Horton. I don't think I have any questions to ask. I think they 
have been covered. 



3173 

Mr. Mooriiead. Mr. Gude? 

Mr. Gude. Yes, Mr. Chairman. I would like to ask Mr. Johnson about 
a series of letters which Senator Cranston and I wrote, in which we 
corresponded with the Defense Department in regard to reports that 
the Air Force was using weather modification techniques in South 
Vietnam. 

If I could quote from several of these letters to give the chain of 
thought that set the stage. Senator Cranston and I wrote last June : 

We have noted recent reports that the Air Force is using weather modification 
techniques to wash out sections of the Ho Chi Minh Trail. At first glance, this 
appears to be a relatively harmless defense project, hut it carries some disturb- 
ing implications. Using weather modification as a military tool opens the door to 
a vast unknown category of warfare. Although the techniques are primarily 
primitive today, experience with other military systems suggest that refinements 
inevitably will come. At present, we do not know the ecological consequences of 
such activities. The possible redirection of storm centers, producing prolonged 
draught conditions or fostering other types of climatic movements, however, 
suggest an awesome potential. Any move into this area without the most pains- 
taking analysis of environmental implications, would be most unwise. Indeed, 
it would be scientifically and morally wrong for the United States to become 
the first nation to use such capabilities for military purposes. 

Unless there is a clear governmental policy to the contrary, the United States 
may find itself charged rightly or wrongly with initialing a new form of war- 
fare. Other Nations might well justify wartime weather modifications or climac- 
tic alteration activity on the basis of our involvement in this area. U.S. military 
weather modification projects could also embarrass our systems engaged in 
legitimate research. 

We went on in the letter to ask for information from Secretary 
Laird. We received a reply which we found unresponsive to the specific 
question we raised about weather modification in Southeast Asia, al- 
though the department discussed at great length weather modifications 
and experiments they were conducting which were not related to 
military operations. So Senator Cranston and I wrote again on Octo- 
ber 15, 1971, referring to our letter of June 15, and requested specific 
information regarding the use of weather modification techniques by 
the Air Force or other U.S. agencies in Southeast Asia. 

I might add that Dr. John S. Foster, in his reply to our June letter 
dated July 12, gave us useful information concerning the development 
of such techniques but failed to direct his comments specifically to 
our request. 

We found his decision to withhold information with '"No comment." 
to be unsatisfactory, and inappropriate. We stated that in a letter and 
we went on to say that we would like answers to the specific questions 
as to the tj^pes of weather alteration programs that were being con- 
ducted in Southeast Asia, under whose authority, in which countries; 
and do these countries have knowledge of, and have they given ap- 
proval for these activities; how long have these programs been in 
force, and so on. And, also, the number of people involved and finally 
just what is the national policy in this area. In addition to Senator 
Cranston's and my efforts. Senator Pell of Rhode Island put in the 
Congressional Record an exchange of correspondence (page S 507 of 
the January 26, 1972, Congressional Record) in which he as the chair- 
man of the Subcommittee on Oceans and International Environment, 
asked for information about weather modification. This, of course, was 
a request by a chairman of a subcommittee, who was acting on behalf 
of his subcommittee, which was refused. 

(The article follows :) 

76-253— 72— pt. S 16 



3174 

Weather Modification Techniques 

Mr. Pell. Mr. President, I yesterday made public an exchange of correspond- 
ence I have had during the past 4 months with the Department of Defense 
regarding military application of weather modification techniques. 

As chairman of the Subcommittee on Oceans and International Environment, 
I have been very much concerned over unofficial and unconfirmed reports that 
the United States has in fact attempted to modify weather conditions in South- 
east Asia as an instrument of warfare. 

I believe that my correspondence with the Defense Department is self-ex- 
planatory. I ask unanimous consent that it be printed in the Record. The De- 
partment, when pressed for definitive answers, declined to answer publicly 
questions regarding possible military use of weather modification techniques 
in Southeast Asia, citing national security reasons. 

In my own view, attempts by any nation to harness the weather, or to use 
geophysical modificated as an instrument of warfare, would be shortsighted. It 
would be the final ironic commentary on man as an intelligent being, if he should 
deliberately use the natural environment as a weapon against his fellow man, 
inviting retaliation in kind. 

In the closing days of the first session of this Congress, I urged the President 
to announce that this country would dedicate all geophysical and environmental 
research to peaceful purposes. I also stated my intention to introduce a reso- 
lution in the Senate pointing toward an international agreement to prohibit all 
environmental and geophysical warfare. 

I regret very much that the Defense Department has concluded that it can- 
not trust the American people with information regarding its possible military 
weather modification activities. 

This reluctance only reinforces my belief that we must move quickly to place 
weather, climate, and geophysical modification off limits in the international 
arms race. I will in the near future submit my resolution, with the intention 
of conducting hearings on it at the earliest possible time. 

There being no objection, the correspondence was ordered to be printed in 
the Record, as follows : 

September 23, 1971. 

Mr. Rady Johnson, 

Assistant to the Secretary (Legislative Affairs), Department of Defense, Wash- 
ington, D.C. 
Dear Mr. Johnson : During the past few weeks, the Foreign Relations Com- 
mittee has received a number of inquiries concerning the Air Force weather 
modification activities against the North Vietnamese. In view of my position 
as chairman of the Subcommittee on Oceans and International Environment, I 
would appreciate the Department providing the Committee with whatever infor- 
mation it may have on the matter, including answers to the following ques- 
tions : 

1. What are the objectives of the project known by the code name "Inter- 
mediary — Compatriot" ? 

2. How long has this project been in existence? Would you provide a rather 
detailed description of this project? 

3. In what specific countries is this project conducted? 

4. What amounts have been spent on this project over the last three years? 

5. Is the Department conducting any similar offense — oriented weather modi- 
fication programs? If so, what are the names of these projects and where are 
they being conducted? 

Sincerely yours, 

Claiborne Pell, 
Chairman, Subcommittee on Oceans and 

International Environment. 



Office of the Secretary of Defense, 

Washington, D.C, September 24, 1971. 
Hon. Claiborne Pell, 

Chairman, Subcommittee on Oceans and International Environment, Committee 
on Foreign Relations, U.S. Senate, Washington, D.C. 
Dear Mr. Chairman : This will acknowledge your recent letter concerning the 
Air Force weather modification activities against the North Vietnamese, 



3175 

I have asked the Director of Defense Research and Engineering to look into this 
matter. You may expect a further reply from his office at an early date. 
Sincerely, 

Rady A. Johnson, 
Assistant to the Secretary for Legislative Affairs. 



November 9, 1971. 
Mr. Rady Johnson, 

Assistant to the Secretary (Legislative Affairs), Department of Defense, Wash- 
ington, D.C. 
Dear Mr. Johnson : On September 23, 1971, as Chairman of the Subcommittee 
on Oceans and International Environment, I requested information about the 
Air Force weather modification activities against the North Vietnamese. I have 
not yet received a reply. 

Attached is a copy of my original communication. I would appreciate a written 
res] muse to that inquiry. 
Sincerely yours, 

Clairborxe Pell, 
Chairman, Subcommittee on Oceans and 

International Environment. 



Office of the Secretary of Defense, 

Washington, D.C, November 23, 1911. 
Hon. Claiborne Pell, 

Chairman, Subcommittee on Oceans and International Environment, Committee 
onForeign Relations, U.S. Senate. Washington, D.C. 

Dear Mr. Chairman : The following information is provided in response to 
your recent inquiry with respect to military use of weather modification tech- 
niques by the Department of Defense. 

The possibilities inherent in weather modification techniques to support mili- 
tary operations have been the subject of discussion for more than 20 years. For 
a number of these years the Department of Defense has been conducting several 
modest research and development programs relating to various forms of weather 
modification. These programs are carried out, in concert with other Government 
departments and agencies, under the aegis of the Interdepartmental Committee 
for Atmospheric Sciences (ICAS). The results of the programs are reported an- 
nually to ICAS, and are additionally reported in appropriate scientific journals 
for consideration by the scientific community. 

Weather modification research on the part of the Department of Defense stems 
principally from two major interests. The first of these is the enhancement of our 
own operational posture through weather modification activities. Two examples 
of this type of employment are: the suppression of hail and lightning (to reduce 
damage to military property and equipment, and to increase safety of operations), 
and the dissipation of fog at airfields and within harbors (to enhance operational 
safety of aircraft and ships). The other interest is an understanding of what 
capabilities our potential enemies may possess in the area of weather modification 
operations. For example, the Soviets have demonstrated a technique for hail 
suppression. Suitably designed artillery shells are fired into cumulus clouds to 
reduce hailfall from these clouds. These experiments are conducted by Soviet 
military personnel using military equipment. 

DOD research in this area is conducted in the laboratory and in the field. The 
field efforts, usually joint ventures with one or more other government agencies, 
are all carefully controlled operations, based on the best available theoretical 
knowledge. One example of fruitful field research has been the investigation of 
precipitation augmentation. This research has established a significant point: 
There is no known way to "make rain" under all conditions. When the proper 
meteorological conditions prevail (that is, when clouds capable of producing 
natural rain exist), it is a relatively simple matter to increase the amount of 
rain which will fall. The amount of increase is frequently of the order of 30 to 
50 percent. This augmentation is well within the natural limits of rainfall for 
regions within which experiments have been conducted. Massive downpours, far 
in excess of natural occurrences, have not been produced, and theoretical knowl- 
edge at hand indicates that this will probably always be the case. Similarly, 
there is no known technique which will permit the steering of storms into a 



3176 

specific area. The closest approach to large storm modification thus far attempted 
is the Department of Commerce (NOAA) /Department of Defense joint effort 
known as Project Stormfury. In this project, studies are being made on ways 
to ameliorate the maximum wind speed in hurricanes and typhoons in order to 
reduce the severity of damage caused by these very destructive storms. 

The field capabilities of the Department of Defense have been utilized on 
several occasions in attempts to alleviate severe drought conditions. In 1969 at 
the request of the Government of the Philippines, the Department of Defense con- 
ducted a 6 months' precipitation augmentation project in the Philippine archi- 
pelago. The Philippine Government considered the undertaking so successful 
that they have subsequently taken steps to acquire an independent capability to 
augment rainfall on an annual basis when required. Similarly, we have just 
completed a 1-month project in Texas at the request of the Governor of that 
State. The operation appears to have been moderately successful in alleviating 
Texas' severe water shortage. On the other hand, attempts to solve similar 
problems in India and at Midway Islands were near or total failures due to the 
absence of suitable cloud formations. 

Laboratory efforts conducted by the Department of Defense are designed in 
large part to explore the questions concerning ecology. Many of these experi- 
ments are numerical investigations which utilize large computers to model the 
atmosphere. Because of the magnitude of the problem, this effort is currently 
quite limited by the size and capabilities of existing computers. When new com- 
puters now being designed are placed in service, however, we hope this effort 
can be expanded to include models on a global scale. Such work is being under- 
taken because DOD recognizes that large scale weather modification operations 
must not be attempted until there is full and reliable theoretical knowledge which 
assures that such operations will not have an adverse effect upon the world's 
climate. 

I trust that the foregoing information will be helpful to you and regret the 
delay in responding to your inquiry. 
Sincerely, 

Rady A. Johnson, 
Assistant tv the Secretary for Legislative Affairs. 



Decemf.er 3, 1971. 
Hon. Melvin R. Laird, 
Secretary of Defense, 
Washington, D.C. 

Dear Mr. Secretary : On September 28 of this year, I submitted to your Depart- 
ment, several questions regarding weather modification activities in Southeast 
Asia by the Air Force. 

Subsequently, Mr. Rady Johnson, your assistant for legislative affairs, asked 
to meet with me in my office to discuss the questions I had raised. I advised 
Mr. Johnson that I would prefer a written response to my questions before 
participating in a briefing or discussion of the matter. Mr. Johnson on Novem- 
ber 23 of this year provided a reply, in writing, as I had requested. I have 
enclosed a copy of this correspondence. 

As you can see, Mr. Johnson's letter, while providing interesting background 
information on some Defense Department weather modification activities, does 
not respond to the specific questions in my letter of September 23. 

I am deeply concerned over the entire question of military application of 
weather modification technology, and would appreciate very much a written 
response to the specific questions submitted in my letter of September 23. 
Sincerely, 

Claiborne Pell, 
Chairman, Subcommittee on Oceans and International Environment. 



Director of Defense, Research and Engineering, 

Washington, D.C, December 16, 1911. 
Hon. Claiborne Pell, 

Chairman, Subcommittee on Oceans and International Environment, Committee 

on Foreign Relations, U.S. Senate, Washington, D.C. 

Dear Mr. Chairman: Your letter of December 3. 1971. which was addressed 

to the Secretary of Defense, has been referred to this office for reply. In your 

letter you expressed dissatisfaction with information previously furnished to 



3177 

you [by] Mr. Rady Johnson on the subject of Department of Defense weather 
modification activities. 

Certain aspects of our work in this area are classified. Recognizing that 
the Congress is concerned with the question of the military application of 
weather modification technology I have, at the direction of Secretary Laird, 
seen to it that the chairmen of the committees of Congress with primary re- 
sponsibility for this Department's operations have been completely informed 
regarding the details of all classified weather modification undertakings by 
the Department. However, since the information to which I refer has a definite 
relationship to national security and is classified as a result, I find it necessary 
to respectfully and regretfully decline to make any further disclosure of the 
details of these activities at this time. 
Sincerely, 

John S. Foster, Jr. 

Mr. Buzhardt. Let me say it was provided to the committee which 
Congress designated to have primary jurisdiction over the matter. 
It was provided to the Armed Services Committee and he was so 
informed. Incidentally, the chairman discussed it with Senator Pell 
at our request. 

Mr. Mookiiead. Are you drawing a distinction, not only between 
an individual Member and a committee, but also within what seems to 
be a hierarchy of the committees? It appears that even though weather 
modification surely affects the jurisdiction of the Senate Oceans and 
International Environment Subcommittee, the chairman was not pro- 
vided this information. It couldn't be clearer that the subcommittee 
had a prime jurisdictional need to have this information if it is going 
to carry out its studies about the international environment. 

Mr. Buzhardt. That is true. At the same time, you don't expect 
us to exchange information between committees of Congress as a mat- 
ter of discretion. 

That is a matter between the committees. And if there is doubt, 
we provide it to the committee you have designated as the primary 
committee, and then it is in congressional hands. 

Air. Moorhead. It is not a distinction between friendly and hostile 
committees? 

Air. Buzhardt. No ; it is not. 

Mr. Moorhead. You feel if a committee clearly having jurisdic- 
tion, such as the Subcommittee on Oceans International Environment, 
which would have jurisdiction to look into the effects of weather 
modification — if they requested such information, your reply would 
be, ''we gave it to the Armed Services Committee"? 

Mr. Buzhardt. If it is on a sensitive classified operation, we would 
follow this course. And there are many reasons for it that are very 
practical. 

Air. Hortox. What was that statement again ? 

Mr. Buzhardt. I said, if it were on a sensitive classified subject, we 
would probal >ly prefer and would in most cases, provide it to the Armed 
Services Committee that would have the primary jurisdiction. 

Air. Hortox. Well, why does the Armed Services Committee have 
jurisdiction over everything you do? They don't have jurisdiction 
over everything you do, do they '. 

Mr. Buzhardt. Over all of our programs, with the exception of the 
Corps of Engineers. 

Air. Hortox. Government operations has jurisdiction too. 

Mr. Buzhardt. Oversight jurisdiction, but as far as programs are 
concerned 



3178 

Mr. Horton. Pardon ? 

Mr. Buzhardt. As far as programs are concerned 

Mr. Horton. That is an important area, isn't it ? 

Mr. Buzhardt. Yes. 

Mr. Horton. In this letter from Mr. Foster he indicates that : 

Recognizing that Congress is concerned with activities which hear on the 
quality of our environment, I have at the direction of Secretary Laird seen to 
it. that the chairmen of the committees of Congress with primary responsibility 
for this departmental operation, have been completely informed regarding the 
details of all classified weather modifications undertaken by the Department. 

Now, No. 1, can you furnish this committee the direction of Secre- 
tary Laird with regard to this specific information that was asked 
for? Can you tell us which chairmen of committees were furnished 
this information? We don't have it now. I would also recommend or 
suggest in the future, if this type of letter is written, that information 
be given to the Members of Congress as to where the information has 
been placed. In other words, if I write and try to get some informa- 
tion and I get a letter like this, I would like to know which chairman 
of which committee gets this information. 

What I would have done with this, I would have written back to 
you and said I would like to be informed as to what committee has 
received this information so I could have it and go to the committee 
and get it. It is not in here and I think that would probably be a good 
modification of the letter to indicate where the information is. As a 
matter of fact, that is a pretty vague statement that is not precisely 
related to the information requested. It is a pretty broad statement 
with regard to "all weather modification." And that specific infor- 
mation, I think, should be available to the Members of Congress 
through the committees. 

Now, whether the committee gives it to him or not — and your 
theory about that is another matter — you are not involved with it, 
but-^— 

Mr. Gude. If the gentleman will yield ? 

Mr. Moorhead. It is still your time. 

Mr. Gude. I fail to see the distinction you are making between a 
committee and a Member of Congress. Under the Constitution, I see no 
recognition of committees of Congress as being part of the established 
structure of Congress. Committees are established by Congress and 
they can be abolished by Congress and committees come and go but the 
Members of Congress are what constitute the Congress of the United 
States. I would really like to know the Department's legal authority 
for supplying this information, not to the committee, or to the mem- 
bers, but to the chairman of the committee that has jurisdiction over 
the Department of Defense. 

I think the Department of Defense has developed a distorted view 
of what constitutes Congress. It is not a group of committees. It is 
people elected by the citizens of the United States. 

Mr. Buzhardt. That is quite true. 

Mr. Gude. According to you, some committees are second-class com- 
mittees and some committees are first-class committees, and members, 
I suppose, are third class, if you are not on the right committee. 

Mr. Buzhardt. The Congress makes the rules that set the jurisdic- 
tion. 



3179 

Mr. (tide. We make our internal rules, but have you had directives 
from Congress as to where information should be directed? You get 
requests, of course, from committees that have primary responsibility 
for the legislation. 

Mr. Buzhardt. That is correct. 

Mr. (tide. But is there a law or legal authority that says informa- 
tion shall only be available to committee chairmen, of favored com- 
mittees and not to members of the committees and not to individual 
members? 

Mr. Buzhardt. No; there is not, Mr. Chairman, but I am sure you 
would agree that no individual Member of Congress can speak for the 
entire Congress or is he the Congress as it is spoken of in the Consti- 
tution. 

Mr. Gude. No; no committee can speak for Congress either. 

Mr. Buzhardt. To the extent the Congress authorizes them by its 
own rules to speak for them or to conduct the business for the Con- 
gress in a particular subject area it can. 

Mr. Gude. In what law or rules does it say that the Department of 
Defense will provide information only to certain committees or com- 
mittee chairmen? Of course, we have rules to govern how these com- 
mittees operate in relationship to each other but I would like to know 
the legal authority that states the Department of Defense must give 
certain information to certain chairmen or certain committees, or only 
to certain members. 

Mr. Buzhardt. Let me say this : There is no such law as you speak 
of, but at the same time, as a coequal branch of Government, the De- 
partment, as well as any portion of the executive branch, must deal 
with the Congress as a separate branch and as a separate entity. We 
could not hope to deal with the hundreds of individual members and, 
therefore, we deal with them officially as duly constituted committees, 
because that is the way the Congress has structured itself. 

If the Congress chose to let each Member act in all areas and speak 
for the Congress as a whole, because our obligation is to provide in- 
formation to the Congress, then that would be another matter. 

Mr. Hortox. Would you yield again ? 

Do you have all of this in writing? Is there a directive to this ef- 
fect or are you making this up as you go along ? 

Mr. Buzhardt. No; I am telling you the practical application. I am 
giving you the rationale for the practical application as it is applied. 

Mr. Hortox. Is there anything in writing ? Have you made an opin- 
ion as General Counsel ? 

Mr. Buzhardt. I have made no opinion. 

Mr. Hortox. What you are giving us now is your opinion as Gen- 
eral Counsel ? 

Mr. Buzhardt. And it reflects the practice. 

Mr. Horton. And what you just told us is what the practice is \ 

Mr. Buzhardt. That is correct. 

Mr. Hortox-. How long has that practice been in effect ? 

Mr. Buzhardt. As far back as I know. 

Mr. Hortox. How long have you been the General Counsel ? 

Mr. Buzhardt. About 20 months. 

Mr. Hortox^. What about the General Counsel before you, did he dis- 
cuss this matter with you ? 



31S0 

Mr. Buzhardt. There is great continuity in my office. As far as I 
know, I guess my office has continuity to the beginning of the Depart- 
ment of Defense. 

Mr. Horton. You are giving us your personal opinion now as Gen- 
eral Counsel. The question I am asking is, whether or not that opinion 
you have given here as General Counsel represents the official opinion 
of the Department of Defense although you are giving us your gen- 
eral opinion as General Counsel, and you have indicated there is noth- 
ing in writing on this. 

Mr. Buzhardt. To my knowledge. There may be opinions I haven't 
researched. 

Mr. Hortox. But, certainly, you are not talking now about a legal 
opinion that has been rendered by a General Counsel in writing because 
if you had, you would have referred to it. Now, there may be such a 
thing or maybe there isn't. 

Mr. Buzhardt. It may be I have read it but I don't recall at the 
moment whether there is or not. 

Mr. Horton. So what you are giving us here is your opinion as the 
General Counsel based on what you understand the practice to be. 
The question I am asking is, What is the basis on which you premise 
that opinion that this practice has gone on prior to your time? Did 
you have some discussions with the prior General Counsel about this, 
or is this a matter of the people in the office saying this is the way it has 
always been? 

Is it pretty well defined or not so well defined? 

Mr. Buzhardt. It is fairly well defined. I have an Assistant Gen- 
eral Counsel that deals primarily with this area. We have one special 
list of opinions in this area on the Freedom of Information Act, for 
iiistance. While we have never discussed it in terms of whether it was 
a practice, we have certainly discussed the rationale that has been 
applied. I have reviewed the rationale applied and the rationale given 
from my office and from the other legal offices, in the Department of 
Defense, from time to time. 

Mr. Horton. Have you discussed this with the General Counsel of 
any other agencies or departments? This subject we are talking about 
now. namely, the question of 

Mr. Buzttardt. My recollection is I have discussed it in meetings 
where representatives were present, if not the General Counsel, but 
I don't snecifically remember the occasion. 

Mr. ITortox. Are the opinions you have expressed here today dif- 
ferent from the opinions of other General Counsel or are they the 
same? 

Mr. Buzhardt. So far as I know, it is the same. 

A [r. Hortox. Thank you. 

Mr. Moorttead. Mr. Johnson, again, I commend you for your state- 
ment that without adequate information, the Congress and the Gov- 
ernment can't function, and yet you recite on page 5 a case where the 
Department of Defense refused under the so-called doctrine of "Execu- 
tive privilege," it refused a congressional request for "out-year" plan- 
ning fhmres for foreign military assistance. 

Did the President invoke it ? 

Mr. Johnson. He is the only one who can invoke it, yes. 

Mr. MooimE \n. Going back to your statement — in order for govern- 
ment to function properly Congress needs information — it seems to 



3181 

me planning for future military assistance programs is essential to 
the Congress before we can legislate on this year's program because 
we have to know where do we think we are going in the future. We 
have to know whether we are just starting a program or if this is the 
beginning of a big program. 

Sir. Johnson. I think the question is, the information requested 
was really information not, in essence, available in a working planning 
document, It is subject to change from June to August, just in a couple 
of months, just by relationships alone by the countries. So to give a 
5-year projection would be to give you a hoped-for, but by no means 
would it be concurrent in any way. I think from a budgetary restate- 
ment, the overall amount was pretty well available. 

Mr. Mooriiead. "Well, I think that unless you assume that we are all 
congenital idiots up here, we know that plans change. You may think 
you are going to do something next year and the third or fifth year 
thereafter, but they can be changed; but it gives us an idea as to how 
to take this year's program into account, So we should have the right 
to know where the program is going in the future and what the plan- 
ners contemplate. 

It seems to me your original statement— we can't have a functioning 
government if Congress isn't informed — would apply here to this 
information you have discussed on page 5 of your statement. 

Mr. Buziiardt. Mr. Chairman, the specific documents requested 
contained so-called out-year planning figures. The specific documents 
were not planning figures by airy high level planners. They were the 
raw input from field organizations. They had no official sanction. They 
had none of the policy considerations that the higher levels of govern- 
ment cranked in. They were not cranked in, in this instance. I think 
it was primarily Defense Department planning input. As you know, 
another department of government has the final voice on what the 
planning should be so we were dealing with something that was pri- 
marily advisory inputs rather than the planning of the executive 
branch, which was being addressed. 

Mr. Mooriiead. This isn't a situation where you followed the "most 
favored chairman" approach and gave the documents to the most 
favored chairman ? 

Mr. Johnson. No. 

Mr. Buziiardt. I might say that the words "most favored chairman" 
are your words and not ours. You elect the chairmen of your com- 
mittees, we don't, 

Mr. Moorhead. I think the favoritism is indicated by your testi- 
mony. You said you give it to the chairman having what you con- 
sidered as having the primary jurisdiction and you make that con- 
sideration. 

Mr. i>t'ztiardt. Really is there any deviation from the Armed 
Services Committee as having primary jurisdiction over operational 
programs ? 

Mr. Mooriiead. I think the complaint you are hearing voiced by 
tho members of this subcommittee is that there are many overlapping 
jurisdictions such as the environmental question of a particular pol- 
icy, which may be primarily military and may be secondarily en- 
vironmental. The arm of the Congress which is asking von for the 
information may have primarily jurisdiction on the environmental 
question, but that is a secondary committee as far as vou are con- 



3182 

corned. You have two pieces of paper; a Xeroxed, copy and the 
original. Why don't you give the original to your "most favored 
elm irman" and give the carbon to the secondary chairman ? 

Mr. Buzhardt. It is not that easy. 

In many cases, we recognize the obligation to provide informa- 
tion to the Congress but in many cases we have a judgment that the 
materia] is extremely sensitive. In many cases, the other committees 
do not have the facilities to store or safeguard the material. What 
we do. in effect, is take it to the Armed Services Committee, who has 
the full detail and background similar to what we have, and if they 
don't have it in the particular case, we provide it to them with 
the background of what we considered to be its sensitivity. And then 
the judgment of the executive branch is passed to the committee. 
Yon might call it passing the decision to the Congress. It is a very 
workable and very practical consideration. 

Mr. Moorhead. If you said to a committee "we are not going to supply 
you this document because you don't have the right safe,"' I am sure 
they would understand that, and either obtain the necessary safe or 
make other arrangements. That would be purely a technical con- 
sideration. 

Mr. Horton % 

Mr. Horton. No further questions. 

Mr. Moorhead. Mr. Phillips ? 

Mr. Phillips. Getting back to the request of Senator Pell, Mr. John- 
son, on page 5 of your statement you talk about the procedure by which 
Executive privilege is invoked. It is invoked by the personal decision of 
the President under a letter of agreement with this subcommittee. But 
it seems to me in reading the text of the letter signed by Dr. Foster, 
dated December 16, 1971, to Senator Pell, addressed to him as 
Chairman : "Dear Mr. Chairman," he says in his last sentence : "I 
find it necessary to respectfully and regretfully decline to make any 
further disclosures of the details of these activities at this time." It 
seems to me that whether you call it Executive privilege or say merely 
"no, you can't have it," the effect is the same. Who authorized Dr. 
Foster to use Executive privilege in this particular case? 

Mr. Johnson. You are calling it Executive privilege. 

Mr. Phillips. The effect is the same. 

Mr. Johnson. Nobody but the President can execute Executive 
privilege. 

Mi\ Phillips. Why didn't he do so in this case ? 

Mr. Johnson. In any case. 

Mr. Phillips. In this particular case, why didn't the President do it 
instead of Dr. Foster ? 

Mr. Johnson. Because the information has not been declined to an 
arm of the Congress; namely, the Armed Services Committee. The 
information had already been furnished to the Congress but not 
through this particular Senator. There was no need to claim Executive 
privilege. 

Mr. Phillips. Senator Pell is a chairman of another subcommittee. 

Mr. Johnson. Right. But the way the information was supplied was 
correct in accordance with the guidelines we operate under. We sup- 
plied it to the committee with primary jurisdiction if that was the 
question. 



3183 

In further response to you, I think Senator Pell's request has been 
answered since then by that committee chairman. 

Mr. Phillips. He only had to wait 11 months. 

Mr. Johnson. No, Mr. Pell's unavailability necessitated that. 

Mr. Phillips. But the point is, I have read the jurisdiction of the 
Ainied Services Committee. I don't find anything; in their jurisdic- 
tional areas of responsibility — at least, spelled out in the House or in 
the Senate rules — that mentions weather modification. 

Mr. Johnson. In this case, there was a question of military weather 
modification. I think that this puts it in the Armed Services Committee. 

Mr. Phillips. But you make that decision. 

Mr. Johnson. No, as far as the information, Mr. Pell was not cor- 
rect anyway. But the information he was requesting had to do with 
military application. I don't think it would be proper for us to take 
military information and give it to the Education, Labor, or any other 
committee, which does not have the responsibility of authorizing the 
program. 

Mr. Phillips. How about the investigation of it? Isn't that im- 
portant, too ? 

Mr. Johnson. I don't think it was in Mr. Pell's request in this par- 
ticular case. The fact is, he had the information available to him by 
going to the appropriate committee and he knew where it was. 

Mr. Phillips. Is he happy now ? 

Mr. Johnson. To my knowledge, he is. 

Mr. Phillips. Let me move on to another area. 

Over the years, our subcommittee and many others request docu- 
ments or other information from your office. 

Can you spell out the ground rules as to the degree of preciseness 
in identification that you require ? You may recall last summer we re- 
quested something called the Defense Intelligence Collection Manual. 
"We had the wrong TM number. We reversed the numbers, or we had 
the 35 instead of the 38, or something like that. We had a great deal of 
difficulty getting it. We finally did obtain it. You brought it over your- 
self personally. But there have been other cases over the years where 
we have asked for an area of information without knowing the precise 
title of a report or study. I want to know where do you draw the line 
in making them available ? 

Mr. Johnson. Let me saj% I understand the question. The question is, 
unless you identify it precisely as titled, would you get it? No, we are 
not going to deny you the information on that basis. Of course, there 
are a lot of documents— I think you can appreciate that from your 
background — there are a lot of documents that deal with the subject 
matter you are talking about but if you can identify it, not specifically 
by title and identification number, but in the area that is concerned, so 
that we know it is only one document as opposed to four or five dif- 
ferent studies, and is something we can get a handle on, I am sure 
you will get it. 

I would say in that case — well, one case we did have difficulty iden- 
tifying it but that wasn't this particular case. But finally by going 
backward and forward, we were able to identif}^ it. However, in this 
case, there wasn't that much difficulty in identifying it as there was in 
obtaining it, even from my standpoint. 

Mr. Phillips. From our view, we would hope the "rule of reason" 
would apply. There have been some cases where it has been difficult to 



3184 

obtain documents. Perhaps there has been a lack of communication 
or some such difficulty in understanding oui precise area of interests. 

For example, sometimes when you are very precise, you can't even 
get the information. I recall some correspondence from last summer 
with Mr. Bartimo in which we asked for copies of two trip reports that 
involved black market investigations in Vietnam, that the subcommit- 
tee was engaged in studying. We have a letter from Mr. Niederlehner 
dated last July 26. in which he said the information will be avail- 
able in a couple of weeks. 

Mr. Johnson. I will apologize to you on that one. That was in our 
interdepartmental action task group. At that time, Mr. Bartimo was 
charged with it. In the interim, Dennis Doolin was charged with it, 
but he has gone to Europe for 3 weeks, and just found out about his 
assignment on it. 

Mr. Phillips. Mr. Kossides of the Treasury Department was also 
on that committee, as well as representatives from the State Depart- 
ment. Mr. Rossides testified before this subcommittee last August 
that he had no objection to making it available; the State Department 
also advised us that they have no objection, but it took many months 
of going from one to the other to get to the point where we are now. 
But after a year, there are no objections from anybody but we still 
don't have the two trip reports. 

Mr. Johnson. You will have them. T will apologize for that. 

Mr. Phillips. We haven't been able to finish that report because 
we haven't received those documents. We would like to finish it before 
the 92d Congress adjourns, although they are probably out of date 
by now. 

Mr. Johnson. OK. That wasn't intentional. In fact, it didn't really 
come to my attention until just a couple of weeks ago, when Dennis 
left. 

Mr. Moortieau. Would you gentlemen be willing to answer ques- 
tions submitted in writing? 

Mr-. Johnson. Sure. 

(The questions and answers follow:) 

Questions Submitted to Department of Defense for Inclusion in Hearing 

Record of May 24, 1972 

1. In your opinion, what committee of the House of Representatives has pri- 
mary jurisdiction over monitoring: the economy and efficiency of Government 
activities at all levels? 

2. Mr. Johnson, you mention in your testimony President Nixon's refusal to 
provide the Senate Foreign Relations Committee with tentative planning: figures 
on military assistance. I assume this refusal was recommended by the Depart- 
ment of Defense. Is that correct? 

3. It is totally beyond my (Chairman Moorhead) comprehension why the 
executive branch cannot share such informntion with the Congress. What valid 
justification can there be for such a refusal? 

4. Planning is an integral function of good management in government, isn't 
it? It also costs money — tax money. Why shouldn't the planners and their product 
be subject to congressional scrutiny? We certainly know their recommendations 
are only tentative and subject to change until refined and adopted as policy. 

5. Tf Members of Congress are going to authorize spending ceilings on military 
assistance and then appropriate the actual money, don't you think they have a 
"need to know" what is being planned in that regard? After all. they have the 
constitutional duty to parr-el out these funds, and at present, the administration 
is asking us to parcel out money we haven't got ! 

0. You stnte in your testimony that Secretary Laird has and I quote "repeat- 
edly admonished all DOD components that the Congress is a coequal branch of 



31S5 

Government." Would you kindly supply those repeated admonitions for the record 
at this point? 

7. You say it is the policy of the Department of Defense and this administra- 
tion to fully inform the Congress of all Government programs and operations in 
order for the Government to function properly. Fully is an all-inclusive word and 
I noticed that you did not qualify it. You state it categorically. Then you de- 
scribe how much information is provided to Congress. However, in my view, 
categorical statements must be judged by the exception and not the rule. The 
Department and the President told the Senate Foreign Relations Committee that 
military assistance planning figures were none of its business but solely pro- 
prietary. The Department refused to provide this committee with the Pentagon 
papers in what I regard as a violation of the law. We are still waiting for the 
interdepartmental action task group reports on black-market currency manipula- 
tions in Yietnam requested July 13, 1971. There are many other examples. That 
is not a very good track record for keeping the Congress fully informed, is it? 

Answers to questions submitted to the Department of Defense for inclusion in 
the hearing record of May 24, 1972 : 

1. As Mr. Buzhardt indicated in his testimony, "The Congress makes the rules 
that set the jurisdiction." 

2. The Department of Defense supports the decision of the President on this 
assertion of Executive privilege. 

3. This was discussed by Mr. Johnson on page 2373, lines 15-22, of the transcript 
and by Mr. Buzhardt on page 2374, lines 9-20. 

4. This was discussed by Mr. Johnson on page 2373, lines 15-22, of the transcript 
and by Mr. Buzhardt on page 2374, lines 9-20. 

5. This was discussed by Mr. Johnson on page 2373, lines 15-22, of the transcript 
and by Mr. Buzhardt on page 2374, lines 9-20. 

0. Mr. Johnson's reference to Secretary Laird's having " * * * repeatedly 
admonished all DOD components that, the Congress is a coequal branch of Gov- 
ernment," was not intended to infer that this had been done by written formal 
memorandums or directive, but rather orally on numerous occasions in staff dis- 
cussions, at public appearances as well as before committees of Congress. 

7. On the contrary, in the DOD it is considered a good "track record" in view 
of the data presented by Mr. Johnson during his testimony. Those cases cited 
were discussed in full by the Defense witnesses. 

Mr. Moorhead. We thank you very much for testifying. Tf we 
appeared critical, I want you to understand this is not personal, but 
institutional. We are concerned about the relationship between the 
Congress and the executive branch as it affects the availability of 
information. So this is an institutional problem that concerns us, and 
not a personal one. 

Thank you very much. 

The subcommittee would now like to hear from the distinguished 
retired naval officer. Adm. Gene R. La Rocque. He was a rear admiral 
of the U.S. Navy and was retired on April 1, 1972. 

I have a biographical note which, without objection. I would like to 
submit for the record. 

(The biographical document on Admiral La Rocque follows:) 

Gene R. La Rocque, Rear Adm. (retired) spent some 31 years in the service 
of our country as a commissioned officer of the U.S. Navy. Commissioned in 
March 1941, Admiral La Rocque was at Pearl Harbor during the Japanese attack 
on December 7, 1941, and served in the Pacific Theater during World War II in 
destroyers. He participated in 13 separate engagements. 

Following World War II, he commanded two destroyer escorts, a cruiser, a 
division of destroyers, and a destroyer flotilla. Later, he served with the 6th Fleet 
in the Mediterranean as commander of a task group. 

Since 1957. he has been stationed at the Pentagon where he served on the 
strategic planning staff of the Navy, on the strategic planning staff of the Joint 
Chiefs of Staff, and was Assistant Director of Strategic Plans, Xavy Department. 

He is a graduate of the Naval War College, the Industrial College of the Armed 
Forces, and in 1969 was awarded the Legion of Merit by the Navy Department 
for his work in strategic planning. 



3186 

Mr. Moorhead. I would like to call attention to the fact that his 
career included service in World War II in destroyers in the Pacific 
which is the same type of duty I had, but not as long; as the admiral's. 
His last command was as commander of a task group in the 6th Fleet 
in the Mediterranean ; while in the 6th Fleet his ship was the Saratoga. 

In more recent years, he was involved in strategic planning in the 
Navy staff of the Pentagon, and he was involved in planning in the 
Joint Chiefs of Staff in the Pentagon. In 1969, he was awarded the 
Legion of Merit by the Navy for his work in strategic planning. 

We welcome you here, sir. 

STATEMENT OF REAR ABM. GENE R. LA ROCQUE (RETIRED), 
EXECUTIVE DIRECTOR, CENTER FOR DEFENSE INFORMATION 

Mr. Moorhead. Admiral, will you please stand while I administer 
the oath ? 

Do you solemnly swear the testimony you are about to give this sub- 
committee, will be the truth, the whole truth and nothing but the truth, 
so help you God ? 

Admiral La Rocque. I do. 

Mr. Moorhead. Thank you. You may proceed now. 

Admiral La Rocque. Mr. Chairman, should I go through this pre- 
pared testimony or do you prefer that I read it ? 

Mr. Moorhead. It is short. Admiral. I think it would be helpful if 
you read it. If you want to skip anything, we will put the entire state- 
ment in the record. 

Admiral La Rocque. I would certainly like to include this first part, 
which I feel deeply about. 

Mr. Chairman, distinguished members of this committee, your in- 
vitation to appear before this committee is appreciated and I am 
pleased to be here. I wish to congratulate this committee for its past 
success and its continuing effort to insure a free flow of information 
within our society. 

We cannot have a democratic society if the people and the peoples' 
representatives in the Congress do not have access to the information 
necessary to make sound judgments. 

For the past 31 years, it has been my privilege to serve this Nation 
as a commissioned officer of the U.S. Navy. I plan to continue service 
to my country as a private citizen. For this reason, I have assumed the 
position of Director of the Center for Defense Information here in 
Washington, D.C. The Center is an independent organization conduct- 
ing analyses of Defense Department policies, both current and project- 
ed, and is totally independent of both Government and industry. The 
results of these analyses are being made available to the public and to 
the executive branch and to the Congress when requested. We also 
make the results of our analyses available to any private citizen group 
that wants it. 

We are trying to make some of this business of defense matters in- 
telligible to more people. My experience in the dissemination and classi- 
fication of information has been entirely within the Defense Depart- 
ment. Perhaps it would be useful for me to explain the attitude I have 
found in the Defense Department on information dissemination and 
offer some suggestions to increase the flow of information for our na- 
tional benefit. 



3187 

As a general rule, most officers recognize their responsibilities to 
provide the public and the Congress with accurate, timely information. 
Unfortunately, the nature of a military organization makes it easy for 
an individual to avoid this responsibility. Since everyone has an of- 
ficer senior to him, each person is reluctant to release any information, 
as it may not be in accord with his boss' views. This is said in no way 
to denigrate officers, as the system functions best when there is a high 
level of loyalty. This loyalty is also an essential quality for promotion. 

In the military, the best way lo prevent disclosure of information is 
to classify it. Classification is made for a variety of reasons. First, to 
prevent it from falling into the hands of a potential enemy; this is 
legitimate but accounts for only a small portion of the material classi- 
fied. Other reasons for classifying material are: to keep it from the 
other military services, from civilians in their own service, from civil- 
ians in the Defense Department, from the State Department, and of 
course, from the Congress. Sometimes, information is classified to with- 
hold it for later release to maximize the effect on the public or the 
Congress. 

Frequently, information is classified so that only portions of it can 
be released selectively to the press to influence the public or the Con- 
gress. These time-released capsules have a lasting effect. 

The ritual begins each spring with the Pentagon implying that a 
potential enemy is developing a very threatening weapon, "but un- 
fortunately the exact details are classified. , '' These incomplete state- 
ments are the stock in trade at appropriations time to persuade the 
Congress to authorize military appropriations. Last year it was big 
holes in the ground in the Soviet Union. This year it is evidence of a 
Soviet ship under construction which might be a carrier or a merchant 
ship. 

Regrettably, far too much material is classified, much of it just be- 
cause it is easier to classify than not. You cannot get into trouble by 
overclassifying, only by failing to classify. And, it is easier to main- 
tain secure files if all material is classified. In that way, only one set 
of files need be maintained. 

Classification is also very simple ; all one needs is a typewriter or a 
"secret"' stain]). In most offices, the secretaries or the yeomen establish 
the classification. And since most typed matter is not signed, no one 
ever knows who classified the material or for what reason. There is no 
central record of what was classified by whom, when, or for what 
purpose. 

It has been a matter of concern to me that the Congress, charged 
with raising and supporting our Armed Forces and for declaring war, 
has increasingly been denied the very elemental information necessary 
to make these decisions. I find it difficult to understand why the Repre- 
sentatives of the people, the Congress, accept this situation. 

There is an attitude among some officers that the Congress cannot 
be trusted with classified information because of the penchant of some 
to tell all to the public. In the Pentagon's lexicon, they are "bad 
security risks." If this attitude prevails in the military and if Con- 
gress fails to assert itself, civilian control of the military will further 
erode. There are some simple, workable steps, compatible with our 
Constitution, which could reduce the amount of classified material 
and, consequently, make more information available to the public and 
to the Congress. 



3188 

First, each paper, document, or article classified should bear the 
name and rank of the person making the classification. 

Second, each person authorized to classify information should be 
so authorized in writing. 

Third, it should be "clearly established that it is the obligation of 
the Department of Defense to provide Congress with adequate and 
pertinent information regardless of classification, which the Congress 
needs to base its decisions to raise and support Armed Forces and to 
declare war. Each Member of Congress by virtue of his position 
should be provided all such information in order to carry out his duties 
under the Constitution. 

Fourth, establish a section of GAO, or an independent board with 
maximum security clearance, to examine on a continuing basis the 
security system in the Defense Department. 

Fifth, require classification of documents be limited to those affect- 
ing national defense — rather than national security, a broader and 
more ambiguous concept. 

Sixth, require the Secretary of Defense and his major subordi- 
nates to appear before Congress and respond to questions whenever 
a majority of the Congress so requests. 

Seventh, require the President, as Commander-in-Chief, to appear 
before a joint session of Congress and respond to questions whenever 
a majority of Congress so requests. 

In a 1969 memo to the heads of executive departments and agen- 
cies, the President gets to the heart of the problem of free flow of 
information within our Government. The President's memo states, 
"The policy of this administration is to comply to the fullest ex- 
tent possible with congressional requests for information." No 
pretense is made of an effort to keep the legislative branch in- 
formed, but only to respond to the "fullest extent possible" to ques- 
tions. The problem is that the people and the peoples' Representatives 
in the Congress frequently don't know what questions to ask. Some of 
the burden for informing the Congress should be shifted to the execu- 
tive branch of the Government. 

Regardless of what specific rules are made and what regulations 
are established, it may be very difficult still to get a handle on control 
of information emanating from the Defense Department or, hopefully, 
would emanate from there. But I think we have to do some sort of 
thing to change the atmosphere and to facilitate this flow of informa- 
tion from the Defense Department to bring into better balance the 
executive branch and the legislative branch in this very important 
matter of national defense. 

Mr. Moorhead. Thank you very much. That was an excellent 
statement. 

I note on page -1 you say, "Congress with its war powers is still being 
denied adequate information to make proper decisions" and you 
wonder why we accept this situation. 

One of the purposes of these hearings is to bring this situation 
more forcefully to the attention of our colleagues so that they will 
realize that we shouldn't stand for it. Maybe some day we will get a 
majority that will stand up and try to change the situation. 

I agree wholeheartedly with your conclusions that the attitude 
should be for the executive branch to go out of its way to inform the 
Congress and not just as you point out, to respond to questions. 



3189 

Do you have any suggestions as to how we can solve that? How 
could we legislatively require the executive to deal with the Congress 
as an equal branch of the Government with equal access to information ? 
Admiral La Rocque. That is really the heart of the problem, I agree, 
Mr. Chairman. I think first of all the hearings that this committee is 
holding are a step in the right direction. First of all, I think we have 
to make people aware. The public and perhaps the rest of the Con- 
gress should be made aware of the general attitude which prevails in 
the Pentagon insofar as providing information to the Congress. The 
attitude in the Pentagon is one that starts from the premise that the 
first amendment of the Constitution says that the Congress will not 
abridge the right of free press. Then from that, it sort of becomes a 
game. We are under no obligation in the Pentagon; there is no statu- 
tory requirement that says that Ave must furnish information but 
rather the press has to get it the very best way they can. 

So to some extent, this is also true of the Congress. So, I suppose 
the first step is to make people aware of the fact that the people in the 
Pentagon by and large are reluctant and feel no need to provide in- 
formation. Second, perhaps by — I don't want to suggest legislation 
because that is your area, but I think some sort of requirement from the 
Congress, perhaps it would have to be legislation, which would place 
on them this obligation as a step in turning them around in their 
thinking to provide this information so essential to the Congress. 

They really feel, of course, based on experience, that they are much 
better off if they can feed you selective information and not provide 
you any more than what is absolutely necessary to get their appro- 
priations and to do the things that they would like to do in that branch 
of the Government. 

Mr. Mookhead. I think until we arrive at that best-of-all-possible- 
worlds we will probably have to continue to play the games. One of 
the handicaps, as you pointed out, is that Congress doesn't even know 
the questions to ask to bring into effect the President's 1965 directives. 
This is where I think your Center for Defense Information could be of 
tremendous value to us. 

We can ask the right questions and ask for the right documents. 
If we can do that, we have a much better chance of winning that game 
than we do without it. 

I notice that in your service, you had service on an aircraft carrier. 
One of the issues before the Congress, is whether we should go on 
building more aircraft carriers. I would presume that the Navy 
would have had studies both pro and con on the subject of aircraft 
carriers. As a matter of information, what questions should we ask, 
or what documents should we seek for the Congress, or is this the kind. 
of information we are just not going to get ? 

Admiral La Rocque. Well, sir, I think you should ask questions, 
and I think you might get some answers. I think they do tend to re- 
spond if you can ask the right questions often enough and with some 
evidence you have some knowledge about it to begin with. They are 
basically honorable people thinking they are doing what is right for 
the country by hoarding this information. 

In the matter of the carrier, the basic issue that has not been ad- 
dressed and the question that has not been asked, is what will be the 
role of the carrier in the 1980's ? Why do we need an aircraft carrier ? 

76-253 — 72 — pt. S 17 



3190 

We seem always to get quickly involved in the question whether it 
ought to be a nuclear carrier or a conventional carrier or the type of 
aircraft it is going to have and various electronic components and 
details of it, the mechanical aspects rather than the fundamental ques- 
tion of, do we need an aircraft carrier at all ? That is the sort of ques- 
tion it seems to me ought to be asked and, in reading the testimony of 
Mr. Laird and Admiral Moorer, they don't really address themselves 
to the question of need for an aircraft carrier. For example, if you 
were to take a look at the roles of an aircraft carrier today—and I 
don't want to get into too many military things— but an aircraft 
carrier has no real role in the defense of the United States, per se. The 
aircraft carrier has no role in a nuclear exchange with the Soviet 
Union. It is not part of that plan. 

So that only leaves you one other role for an aircraft carrier and 
that is to project U.S. power ashore somewhere. Then you have to ask 
where? Well, is it Africa, South America, India, or other parts of the 
world where this projection of the U.S. power can be made? If that 
is why we want to spend $1 billion for an aircraft carrier, that is up 
to the Congress and the people. So rather than consider that because 
we always had 15 aircraft carriers and because some of them are get- 
ting old, and maybe older yet in 10 years, that may be the reason to 
build a new carrier ; we should instead consider the need. 

Mr. Moorhead. On an information request— and using the carrier 
only as an example— how would you phrase a question and to whom 
would you put it on let's say, vulnerability of the carriers. Is there 
any way that we can find out who might be the critic of the program 
who is knowledgeable to bring before a committee of Congress ? Is 
this the kind of information you are just not going to get? 

Admiral La Rocqtje. I don't think you are going to get it, Mr. Chair- 
man, for the reason that there aren't any critics of the carrier in the 
Pentagon who can speak out if you were to bring them before this 
committee. Believe me, there are people who question very strongly 
the need for a carrier within the Navy, but if they were to testify of 
their objection to it, they would probably be ordered to the Philippines 
the next day for duty. It is just that simple. 

We have nice neat control over the officers. Also, we have within 
the Navy, as well as the other services, not only an unwritten law, 
but a very explicit direction that once the Chief of Naval Operations 
has made up his mind that we are going to go in for these things, items 
in the budget, no one is permitted to speak in opposition to it after he 
has made up his mind and the budget has been put to bed. 

One interesting thing in that connection, when I was in the Joint 
Staff as a captain, before the budget came to the Congress, each of the 
chairmen of the Joint Chiefs of Staff were required to sign a letter 
saying that they would support the budget as submitted by Mr. Mc- 
Namara. I know, because I carried that note from office to office to the 
various chiefs to get it signed. So this is another thing that takes 
place once they make their decisions over there, and it is very hard 
to get anybody to tell you anything other than the official word that 
has boon published. 

Mr. Moorhead. What if one of the chiefs refused to sign the paper? 
Would the Secretary of Defense be able to remove him? 



3191 

Admiral La Rocque. I think he would have removed him at the 
earliest possible time. He removed Chief of Naval Operations Ander- 
son after 2 years. lie didn't reappoint him, that is. At that time, they 
were serving just for 2 years. That was over a difference of opinion, 
so it is easy to remove him. But the big thing is that the Secretary of 
Defense could simply withhold putting in an aircraft carrier in this 
year's budget or in next year's budget if he so desired. So he has great 
control over each of the services' chiefs. 

Mr. Moorhead. In your experience in the Navy, were there any 
instructions to you on your dealing- with Congress? 

Admiral La Rocque. No explicit instructions. There was a time 
back under Admiral Burke, when we were all encouraged to get to 
know the Members of Congress and the Senate. I think we are seeing 
this moving in the opposite direction where we have primary emphasis 
on the senior officers dealing with the Congress. That was, of course, 
a different era back when Admiral Burke was there. At that time, we 
were fighting the Defense Department. Now. military services have 
captured the Defense Department and the problem is the Congress. 
Congress is the adversary group now. This is the group that has ro be 
told only so much and not too much, and there is no real attempt made 
now to infiltrate your ranks and convince you of the correctness of our 
position. 

Mr. Moorhead. That is a fascinating observation. I remember the 
time when Secretary McNamara was opposed to funding a particular 
system, and the battle was for the Congress to spend more money than 
he had asked for. I think that those of us watching the Defense budget 
thought that Mr. McNamara was taking care of our interests, and we 
now think the Congress ought to take care of its own interests. 

We are finding our greatest lack is information. That is why I am 
so pleased by your statement here today. Working together, maybe 
we can get some vitally needed information. Your concrete suggestions 
are excellent. Beginning on page 4, first you say that the name and rank 
of the person making the classification should be put on any classi- 
fied document. Some objection was made to that proposal in the new 
Executive order by the Defense Department. 

Some objection was raised that it would be a totally unworkable 
burden to have the name and rank of the person putting the classi- 
fication on it. Do you agree with that ? 

Admiral La Rocque. I disagree with that. sir. After all. the individ- 
ual who releases the message, he is the last official to see it. He is the one 
who says OK on a message to send it. He also ought to be charged 
specifically with this because he is technically charged with the classi- 
fication of a message. So there really isn't any problem on messages be- 
cause I think even under our own regulations, he is responsible for the 
classification of the messages but it is the written material that is 
on all of the staff's desks that gets published or not published within 
the organization. If it is classified, there is no one who can get around 
into declassifying it. No one would know who classified it in the first 
place. 

One of the strange things is our own rules state the person who classi- 
fies it has the authority to declassify it. But 6 months after it has been 
classified, nobody remembers who classified it. Perhaps no one knew 
initially who classified it. I think it would have had additional salu- 



3192 

tary effect — well, I know it would have had to me — if I had to say on 
the top of the page, "Gene La Rocque classified this as secret," be- 
cause I would be more certain about what got classified "secret" or 
"confidential." But as it is, the senior officers simply don't bother with 
the classification. They are concerned with the contents and substance, 
and somebody else makes the classification. 

Mr. Moorhead. I think this would be very effective. We have heard 
some ridiculous examples of overclassification recently and these iden- 
tified documents would serve to heap ridicule on the head of a man 
who did the overclassifying. If this happened in a few instances, we 
would probably not have so much overclassification. 

I notice on page 5, you say each Member of Congress should be pro- 
vided with all information. Did you hear the testimony of Mr. Johnson 
and Mr. Buzhardt this morning to the effect that they could not provide 
information equally to all Members of Congress, and as I put it, only 
furnish it to the "most favored chairmen of the most favored com- 
mittees?" 

Admiral La Rocque. I did, sir. 

Mr. Moorhead. But your testimony is contrary to that, not to what 
they do but what they ought to do. Is that correct ? 

Admiral La Rocque. You are correct, sir. I think it is a travesty 
to deny classified information to the Members of Congress. We take 
in young officers and we have frequently and promptly given them a 
temporary secret clearance. It is easily done. We take a little longer 
in giving them a permanent clearance. We must have a couple of hun- 
dred thousand officers in the services with varying degrees of classi- 
fication. We probably have 100,000 with at least secret at one time or 
another and many more with confidential. I don't know what the 
figures are, but I would hazard a guess at least 50,000 at one time or 
another have top secret clearance. Yet, we still rationalize that we 
can't give the 535 Members of both branches of Congress the same 
treatment and yet, they are the ones charged with declaring war. They 
need, in my mind, to know the background of the buildup. They need 
to know the readiness of their own forces and the degree of threat 
if they arc going to be able to make the decision on this very important 
matter which affects the Nation. As I mentioned earlier, many Con- 
gressmen are simplv considered bad security risks. 

Mr. Moorhead. Mr. Phillips ? 

Mr. Phillips. Thank you. Mr. Chairman. 

I think this is some of the most important testimony that we have 
had during the course of our hearings. Here is a gentleman who served 
our Nation for 31 years, who is retired with honors, who has a very 
high rank, and he is testifying here as to the very practices that this 
subcommittee has been, trying to document for many years. 

When Admiral La Rocque says on page 2: "In the military, the 
best way to prevent disclosure of information is to classify it," he 
says, "classification is made for a variety of reasons: First, to prevent 
it- from falling into the hands of a potential enemy and this is legit- 
imate but it accounts for only a small portion of the material classi- 
fied." he is making a, wry important statement. 

We have had several other witnesses with varying levels of experi- 
ence in the classification area who testified that from their experience. 
anywhere from 75 to 01) percent of classified documents shouldn't have 



3193 

been classified at all. So here is a gentleman with 81 years of naval 
service who is saying the very same thing. lie is an expert witness. We 
are fortunate to have him here bemuse I think lie is helping- to make 
the case with first-hand, knowledge and experience of the very problem 
areas we have been discussing and trying to document. Of course, we 
all know it is very difficult to get a witness from the Defense Depart- 
ment who will come before this committee and testify to these things 
even though they know they are going on. But here we have someone 
who only left the Pentagon in the last G weeks and who is now testify- 
ing to these things we have felt right along and have been trying to 
document. 

We certainly appreciate your testimony, Admiral La Eocque. Your 
testimony has been extremely helpful and I hope that in the future 
there will be other occasions when we can work with you and your 
organization. 

Admiral La Rocque. Thank you. 

Mr. Moorhead. Mr. Copenhaver ? 

Mr. Copenhaver. Admiral La Eocque, it is my opinion that you 
and your organization can serve a most important function and pur- 
pose in society. I think from some of the testimony that we received 
this morning and that we have received previously I really fear for the 
survival of our Republic if we continue with this practice of concealing 
information. 

I don't know whether your organization will be able to document 
instances of concealment of information, but I certainly hope you can 
do so. I needn't tell you I imagine there will be former friends of 
yours who will look upon you as a traitor. Certainly if you do justify 
yourself in this important role, which I think you are now beginning 
to serve, that would tend to overcome any adverse comments from 
friends or former friends. 

I won't take much time, but would like to outline four areas which 
immediately come to mind, which will be very helpful if your or- 
ganization can begin thinking about them and make public or supply to 
Congress. One would be your detection that only partial information or 
partial truths are being made available to the public. This would be 
an on-going assignment whereby you detect and make public that 
only one side of the story is being told. 

An immediate example that comes to mind is the testimony Senator 
Ervin gave with regard to Arm} 7 surveillance. He documented that 
only partial truths were being made available as to the type of security 
information that had been destroyed. I am sure you recall that testi- 
mony. Along the same line would be the question of declassification. 
You touch upon that in your statement w T ith regard to the practice at 
appropriations time whereby spot declassification of certain informa- 
tion occurs which is helpful to proponents. I think this is something 
that would be very good for you to monitor and watch. 

A third area would be where you have knowledge that information 
is classified, not because it fits within any security classification scheme, 
but is being classified to prevent embarrassment or disclosure for non- 
security reasons. And a final area that comes to my mind is making 
public the internal budgetary negotiations that go on. Again, you 
touched upon that. 



3194 

As the chairman properly put it in the hearings yesterday, by creat- 
ing a Department of Defense that which previously occurred out in 
the open now goes on internally between the services. The "you give 
me a carrier and I will give you an airplane" type of thing. This is the 
fourth theory I think that would be very valuable for you to monitor. 
If you have examples, I know the chairman would welcome them for 
the record. 

Finally, would you take one moment to comment on a statement 
which Mr. Johnson made in his prepared statement to us this morning, 
where he said on page 2: "I don't think this Congress has suffered 
from lack of information on any of the administration's programs." 

Admiral La Rocque. I would certainly be pleased to start on that, 
sir, first. 

In testimony given by Admiral Moorer before the Armed Services 
( Jommittee he said, in effect — and this is almost a direct quote — "I want 
to compare for you NATO and Warsaw Pact Forces in Central Eu- 
rope,'' and he did that. But he made no mention of the forces in 
Southern Europe. lie made no mention of the fact that the United 
States and the other NATO nations exceed the Warsaw Pact probably 
three to one in size, power and equipment. So this is an example of 
incomplete reporting and if you were just to believe what he said, 
you would not be fully informed. 

Another classic example of this I see developing right now is this 
new Trident submarine. It was bombers last week and it is Trident 
this week. The Defense Department is asking for almost a billion 
dollars this year in their request, But in their request, they have not 
told the Congress at large — they may have told privately some of the 
favored chairmen of the select committees — but initially there was no 
indication of how many submarines were desired and still no one knows 
what the characteristics of these submarines are. And what the char- 
acteristics of the missiles are, the size, and so on. Nor were we, until we 
did some probing, able to find out what portion of that $1 billion was 
for research and development and construction. So they simply do not 
come clean when it comes to presenting information to the Congress. 
They give as little as possible in public statements to the Congress at 
large and then a little more as necessary to the committees, which have 
the greatest effect. However, we think we had some effect on the ULMS. 
We have been putting out information on the ITEMS, the numbers and 
the estimated costs. I think the Defense Department decided to pub- 
licize how many submarines they want because of the questions we 
posed. They also have not said whether this is a replacement for some 
of the submarines, or whether it is a replacement of some of the land- 
based missiles or whether it is an addition. 

Mr. Phillips. Do you have a newsletter or how do you plan to 
communicate ? 

Admiral La Rocque. We have a newsletter. Our first newsletter was 
a comparison of Soviet and U.S. Navies and Warsaw Pact and NATO 
navies. Senator Stevenson put this in the record earlier this week and 
Mr. Rosenthal put it in the record on the House side about 10 days 
ago. The new ITEMS study clearly indicates the administration has 
not made a case for $1 billion for a new submarine and we have pointed 
out all of the areas in which there are unanswered questions. 

There is one other thing the Pentagon is good at which distresses 
me : that is, they have a knack for changing names. Just this year the 



3195 

Pentagon has changed the name of the U.S. Strike Force to the U.S. 
Readiness Command. We have done away with the military assistance 
program. We now have the security assistance program. Of course, just 
last week the ULMS — underwater long-missile submarine — has be- 
come the Trident. And the Sentinel has been changed to Safeguard. 
And this goes on and on. I think it goes to emphasize what happened 
when we did away with the War Department. When we appropriated 
money and different things for the War Department, we knew it was 
for war. We did away with the War Department, we now have the 
Department of the Army and the Department of Defense. 

We are making a list of all of these name changes, which are sig- 
nificant because it makes it very difficult for the Congress or the gen- 
eral public to stay up with things; just to get information to find out 
what is going on. It keeps people continuously perplexed. I wish I could 
say that they do it simply for clarity. I am absolutely dead certain 
they do it to obscure and make it difficult to obtain information and 
also just to make the names a little more disarming. 

Mr. Moorhead. In other words, we might ask for information about 
the strike force and they might come back and say, there is no strike 
force. 

Admiral La Rocque. That is correct, sir. They would say "I am 
sorry, the strike force was disbanded earlier this year." 

Mr. Moorhead. Mr. Cornish ? 

Mr. Cornish. I have had a good many breakfasts ruined by news 
reports of the surfacing of Russian submarines off the coast of Brazil — 
you know, at appropriations time. Without going into too much de- 
tail on it, isn't it a fact that the U.S. Navy knows the location of a 
number of Russian submarines on a constant basis? 

Admiral La Rocque. That is certainly accurate. 

Mr. Cornish. So when we read about one in the paper, that is an 
unusual event and it is obviously a leak to influence Congress and 
the public. Ordinarily, that information would be top secret; would it 
not? 

Admiral La Rocque. I think it would depend on where it was. It 
certainly would be classified. If on the other hand, it was observed by a 
passing merchant ship, it might not be. I agree with the general thrust 
of what you are saying and ; that is, this information is very frequently 
selectively provided at the right time of year to influence appro- 
priations. 

Mr. Cornish. We have called it for years "managed news." 

Admiral La Rocque. That is a correct title. 

Mr. Cornish. Now when decisions are made at the Pentagon on 
these things like whether an additional aircraft carrier is needed, is 
it made in the context of the pros and cons of the issue ? I mean, are 
they clearly set forth? Are the reasons why you should have an air 
carrier set forth in one column or in one section and then in another 
the reasons why you should not ? 

Admiral La Rocque. I don't think you will find a document which 
purports that we should not have an aircraft carrier. In the first place, 
the Secretary of the Navy is convinced that we need an aircraft 
carrier and so no one else in the submarine division would ever write 
that we did not need an air carrier. 

Mr. Cornish. So, in other words, when a document of that type ap- 
pears on the desk of the senior officer who has to make a decision or 



3196 

recommendation, he very rarely lias the cons of the issues involved. 
What lie has is argumentation in favor of the recommendation which 
is coming up from his subordinates; isn't that true? 

Admiral La Rocque. That is true. And the only question would be, 
do you think we can get that much money in this year's budget to put 
all of them in? 

Mr. Cornish. Now I noticed in your testimony that you said : "Clas- 
sification is very simple and all one needs is a typewriter and a secret 
stamp. In most offices, the secretary or the yeoman established the clas- 
sification." Did you have any personal experience along these lines that 
you might wish to relate to the committee ? 

Admiral La Rocque. Well, yes. Throughout all of my time at the 
Pentagon we, as officers, rarely said this ought to be secret or top 
secret. Normally the paper is written and the yeomen automatically 
classify it depending on what the work of the officer is. 

The offices I worked in mostly used secret and top secret material . 

Mr. Cornish. So he used his judgment and it was a fait accompli in 
effect by the time the paper landed on your desk or the desk of another 
officer ? 

Admiral La Rocque. By the time it was typed ; yes. 

Mr. Cornish. I noticed that the thrust of your testimony is cer- 
tainly that the classification system should be revamped. Would you 
recommend that that be done by Congress rather than by the Executive ? 

Adniiral La Rocque. Without any question, if it is going to be 
effective, it is going to have to be by congressional action in order to 
get any control over that information, which is in the Pentagon and 
not now being made available. If it is left to the executive branch, they 
will write it in such a way that you will probably get no more informa- 
tion than you now get. 

As a classic example, consider the latest Executive directive by the 
President on the classification of material for national security instead 
of national defense. That further shuts off the flow of information, 
because almost anything could be described as endangering our national 
security. 

Mr. Cornish. Thank you, Admiral. 

Mr. Moorhead. Thank you, Admiral. 

We would like to carry on but there is a vote going on in the House 
so we will adjourn. We appreciate very much your very frank and 
candid statement. It will be of tremendous help to us, particularly, 
with the record of experience that you bring to this subcommittee. 

When the committee adjourns, it will adjourn to meet next Wednes- 
day, May 31, room 2154, where we will hare testimony from the 
State Department and the U.S. Information Agency. 

The subcommittee is now adjourned. 

(Whereupon, at 12:20 p.m., the subcommittee adjourned, to recon- 
vene at 10 a.m., Wednesday, May 31, 1972.) 



U.S. GOVERNMENT INFORMATION POLICIES AND PRAC- 
TICES—PROBLEMS OF CONGRESS IN OBTAINING 
INFORMATION FROM THE EXECUTIVE BRANCH 

(Part 8) 



WEDNESDAY, MAY 31, 1972 

House or Representatives, 

Foreign Operations and 
Government Information Subcommittee 
or the Committee on Government Operations, 

Washington, D.C. 

The subcommittee met, pursuant to recess, at 10 :00 a.m., in room 
2154, Rayburn House Office Building. Hon. William S. Moorhead 
( chairman of the subcommittee) presiding. 

Present : Representatives William S. Moorhead, John N. Erlenborn, 
and Frank Horton. 

Staff members present : William G. Phillips, staff director; Norman 
G. Cornish, deputy staff director; Harold Whittington, staff con- 
sultant: and William H. Copenhaver. minority professional staff. 
Committee on Government Operations. 

Mr. Moorhead. The Subcommittee on Foreign Operations and Gov- 
ernment Information will please come to order. 

This morning, we continue the portion of our hearings on the Free- 
dom of Information Act that deals with the problems of Congress 
in obtaining information from the executive branch. 

Thus far in this segment of our overall hearings we have heard 
testimony from Members of Congress who have presented specific 
cases of denial, from the Deputy Comptroller General of the United 
States, from a distinguished legal historian, from an outstanding 
naval officer, now retired, and from the Department of Defense. 

Today, we will hear from witnesses representing the Department 
of State and the U.S. Information Agency. Mr. David M. Abshire, 
Assistant Secretary of State for Congressional Relations, will be 
our first witness. He will be followed by Mr. Charles D. Ablard, Gen- 
eral Counsel and Congressional Liaison, U.S. LA. We are pleased 
to have these gentlemen with us today. 

Mr. Abshire, will you introduce your colleague for the record? And, 
then, you may proceed. 

STATEMENT OF DAVID M. ABSHIRE, ASSISTANT SECRETARY OF 
STATE FOR CONGRESSIONAL RELATIONS, DEPARTMENT OF 
STATE: ACCOMPANIED BY CARL SALANS, DEPUTY LEGAL 
ADVISER 

Mr. Abshire. Yes. Mr. Chairman. Mr. Carl Salans, Deputy Legal 
Adviser, Department of State. 

I wish to thank you. Mr. Chairman, for the opportunity to appear 
before this subcommittee, which over the years has done such sub- 

(3197) 



3198 

stantial and thoughtful work in the area of government information. 
My office was established at the recommendation of the 1049 Hoover 
Commission to create a coordinated program of two-way liaison with 
the Congress. For some time over 2 years I have wrestled with the 
business of trying to provide more information to the Congress on 
behalf of the executive branch. Consequently, I welcome this first 
opportunity to discuss in a public congressional forum the broader 
aspects of information policy, and specifically, the policy by which 
the administration, the Secretary of State, and the Department of 
State are guided. 

At the outset I want to tell you of the rationale that underlies our 
information policy. I realize that public policy cannot be made nor 
effective government conducted unless both the legislative and execu- 
tive branches of our Government are well informed about national 
issues. I am fully aware that the Congress is the first branch created 
by the Constitution. It is the political and legal peer of the judiciary 
and the executive. Moreover, I am aware of the difficulty faced bv the 
Congress in matching the executive branch in its resources of staff and 
in its access to information. In recent years the Congress has increased 
its staff support to cope with this very real problem. I believe that is a 
constructive contribution to the maintenance of the de facto parity of 
the three branches of government about which there can be no doubt 
deiure. 

I say this by way of preface to underscore may sensitivity to your 
needs for adequate access to information about the activities of the 
executive branch and to the information that the executive branch is 
constantly acquiring. I might add that in the decisionmaking process 
within the executive branch on a congressional request, the congres- 
sional relations representatives almost always are the proponents of 
greater sharing of information with the Congress. There are other 
considerations affecting the decision on disclosure, however, that are 
important ones, and at times must be overriding. It is for this reason, 
that I would ask you to consider with me some of the traditional con- 
cerns of the executive branch before discussing specific policies and 
cases. 

THE SEPARATION OF POWERS 

I believe that we must frankly recognize the dilemma that has faced 
legislators, the courts, and presidents since the founding of the Re- 
public. In our government of separate powers based upon checks and 
balances, the precise sphere of each is never clearly, finally, or satis- 
factorily delineated. For almost two centuries, men of good will and 
intense dedication have debated the boundaries. Although, and perhaps 
because there has never been a final agreement our government has 
been effective, creative, and responsive. 

A parliamentary form of government was tried in this country for 
approximately 10 years before the Revolution. During that decade of 
trial and testing there were revealed serious practical shortcomings — 
including those within the areas of diplomacy and military affairs. 
The Constitutional Convention meeting in Philadelphia in 1787, 
adopted in its place the tripartite system of three coordinate but inde- 
pendent branches of government that has formed the basis of our 
government for nearly 200 years. 



3199 

In considering the development of our system it is revealing to 
compare the provisions of the Constitution to those of the Articles 
of Confederation with respect to the furnishing of foreign affairs 
information to the Congress. Consistent with a parliamentary form of 
government, the Continental Congress under the Articles of Confed- 
eration created a Department of Foreign Affairs under the direction 
of a Secretary by resolution of February 21, 1782, providing: 

That the books, records and other papers of the United States, that relate 
to this Department be committed to his custody, to which * * * any member 
of Congress shall have access ; 

That letters (of the Secretary) to the ministers of the United States, or min- 
isters of foreign powers which have a direct reference to treaties or conven- 
tions proposed * * * or other great national objects, shall be submitted to the 
inspection and receive the approbation of Congress * * *. 

A much different scheme of things has been legislated under our 
present constitutional system. The Constitution, in article II, section 
2, provides expressly that the President "may require the opinion, the 
writing, of the principal officer in each of the Executive departments, 
upon any subject relating to the duties of their respective officers * * ::: ." 

This provision parallels the initial clause of article II, section 1, 
which provides that "The Executive power shall be vested in a Presi- 
dent of the United States of America." 

No similar provision exists in the Constitution by which Congress 
may necessarily "require'' any information from the executive branch. 
Indeed, the constitutional requirements in this regard appear to be 
limited to the provision in article II, section 3, that the President 
"shall from time to time give to the Congress information of the State 
of the Union, and recommend to their consideration such measures as 
he shall judge necessary and expedient * * *." 

This constitutional form is clearly reflected in the act of July 27, 
1789, which first established a Department of Foreign Affairs in the 
new government. The act provided : 

* * * That the Secretary * * * shall forthwith after his appointment, be en- 
titled to have the custody and charge of all records, books and papers in the 
office of Secretary of the Department of Foreign Affairs, heretofore established 
by the United States in Congress assembled. 

There is no mention of congressional access to those "records, books 
and papers." This was a decisive and deliberate departure from the sys- 
tem created by the Articles of Confederation. 

I think that this history is important. Mr. Chairman; but I cannot 
emphasize too much that I am not citing it to put in doubt the right 
and the need of the Congress to know in order to carry out its legisla- 
tive functions. 

In fact, it has long been held that Congress, by virtue of the poAvers 
entrusted to it by the Constitution, has certain implied powers of 
inquiry and oversight even though these are not explicitly stated in 
the Constitution. Thus, Congress is entitled to obtain information 
from the executive branch reasonably necessary to enable it to carry 
out its constitutional functions. But this, not an unlimited right, must 
be balanced against the requirement of the executive branch in carry- 
ing out its constitutional responsibilities. 

Our system can function satisfactorily only Avhen each of the 
branches acts responsibly and constructively. Any Avise President 



3200 

knows, as you and I know, that he cannot sustain a public policy that 
does not enjoy public and congressional understanding and support. 
Nor does the President want to carry out policies lacking democratic 
approval. The continuing affirmation of that approval depends upon 
ample public and congressional knowledge of the choice before the 
Nation. This means assuring that, to the greatest degree possible, the 
Congress and the public have the facts which have influenced the 
President and his executive branch. 

In the field of foreign affairs, this need often gives rise to the 
dilemma to which I earlier alluded. 

The executive branch does have confidential information not equally 
accessible to the Congress and the public. In some cases to divulge con- 
fidential information may be harmful to the very interests which, the 
Congress, the courts and the executive branch are sworn to uphold and 
defend. 

That is a profound dilemma that no Congress and no President lias 
ever fully resolved nor is any likely to do so. At this very time, however, 
Kepresentative Patsy Mink is awaiting Supreme Court consideration 
of her suit under the Freedom of Information Act which she has ex- 
plained is designed "in part to secure a judicial construction of the 
Freedom of Information Act that would guarantee Members of Con- 
gress the unlimited right to seek and obtain information in the hands 
of the Executive." (Page E5506, Congressional Eecord, May 18, 1972.) 

The Court's ruling will be illuminating, and may settle a number 
of the problems with which we are now wrestling. 

CONGRESSIONAL LIAISON 

Mr. Justice Brandeis wrote of the motivation for our unique system 
when he observed in 1926 that : 

The doctrine of separation of powers was adopted by the Convention of 17<S7, 
not to promote efficiency, but to preclude the exercise of arbitrary power. The 
purpose was not to avoid friction but, by means of the inevitable friction incident 
to the distribution of governmental powers among three departments, to save the 
people from autocracy. 

If a certain amount of friction is part and parcel of our machinery of 
government, as Justice Brandeis says, I see the role of congressional 
liaison as one trying to provide enough lubrication to see that the 
machinery does not break down. Communication among the branches 
is the lubricant of the machinery of government which keeps friction 
to tolerable limits. Communication is the essential ingredient that per- 
mits the separate branches to understand each other, even while en- 
gaged in an adversary process. It gives the opportunity for the national 
interest to emerge from conflicting conceptions of it. 

You and I, from our daily experiences with government, know how 
many tiroes deadlock arises when communication has broken down. 
We both know how many times deadlock has been resolved when the 
parties have finallv understood one another. On the other hand, the 
final failure to achieve a compromise that would have permitted the 
Senate to give its advice and consent to the Treaty of Versailles, in 
my view, came from a breakdown in delicate communications between 
the President and the Senate. 

I have tried to outline the philosophv that must guide our day-to- 
day efforts to try to assure that the Department of State fully under- 



3201 

stands the views of the Congress and that the Congress understands 
those of the Department. 

Now, let me turn to the practical means by which the executive 
branch' is endeavoring to meet your need and our need that the 
Congress have adequate foreign affairs information to perform its 
functions. 

At the top of the list are the President's comprehensive reports 
to the Congress. They constitute the most authoritative, complete and 
rationally defined statements of the President's foreign policy and 
of his appraisal of the world situation. 

The most ancient and most widely studied is the traditional annual 
state of the Union message. It provides the Congress and the Nation 
with the President's synthesis of our domestic and international 
posture. 

This administration has gone much farther. The President has also 
made a comprehensive, scholarly, and precise annual report to the 
Congress on his foreign policy. These annual reports have given a 
conceptual approach to this administration's foreign policy that I 
believe has been a significant step forward. 

The President's reports, in turn, have been supplemented by even 
more detailed submissions from the Secretary of State who on March 
26, 1971, submitted a 617-page report to the Congress entitled "United 
States Foreign Policy 1969-70" and on March 8, 1972, submitted a 
604-page report on "United States Foreign Policy 1971," which I 
have here before us. 

These reports constitute an effort to draw together the entire skein 
of our foreign relations at the highest policy level and to relate the 
numerous aspects of our foreign affairs to a single, coherent 'approach 
to our external relations. As such, they capture our foreign policy in 
its most authoritative sense and offer Congress and public alike a 
precise formulation of the administration's position. 

If I may say so, Mr. Chairman. I do not believe that the administra- 
tion has received the credit due it by the Congress or the press for 
these major steps forward. This is purely unintentional, I know, but 
the danger is that future administrations might not be encouraged to 
follow suit. I do hope that any final report of this able subcommittee 
will examine these important improvements in executive to legislative 
and in executive to public communications in the field of information 
policy. 

To move to more traditional forms of information policy. Secre- 
tary Rogers, and the Department of State generally, have provided 
Congress with a large volume of information, through formal testi- 
mony, in both public and executive sessions, through intensive brief- 
ings, personal meetings and correspondence. 

The Secretary of State in the first 3 years of his service has appeared 
on 43 different occasions to testify formally before the committees of 
Congress. Other senior officers of the Department also have testified 
frequently. Their appearances totaled 181 last year alone. 

An enormous number of congressional inquiries are received and 
replied to each year by the Department. For the year 1971 alone, we 
received 18,964 congressional letters. 

I consider this correspondence of the greatest importance, and I 
want you to know of the very considerable attention which the De- 



3202 

partment of State very gladly gives to providing the Congress with 
full, clear, and timely replies. Just this spring, 1 began a new cam- 
paign to improve our responses by stressing clarity, appreciation of 
differing points of view and responsiveness. I spelled out the need for 
improvement in an article circulated to all officers of the Department 
in Washington and throughout the world. (Department of State 
Newsletter. April 197:2, pp. 10-11.) At the same time we began a 
continuing series of meetings with Department officers to explain the 
importance of congressional correspondence and the need to make 
the extra effort to satisfy congressional inquiries. 

In addition to correspondence, in 1971 an average of approximate!}' 
220 telephone inquiries from Congress were handled each working- 
day by our Office of Congressional Relations of 25 people and an 
additional uncounted number of other offices in the Department of 
State. 

Extensive briefings are given to the Congress as a whole, to com- 
mittees, to less formal groups, to individual Members and to congres- 
sional staff members. For many years regular Wednesday morning 
briefings have been provided for Members of Congress while Congress 
is in session. There were 31 of those Wednesday briefings given last 
year, and the Secretary of State has recently appeared twice. 

I might note that over the weekend I was reading the book of the 
dean of the School of Advanced Studies, Johns Hopkins University, 
Francis Wilcox, on "Congress, the Executive and Foreign Policy," 
and I noted in the book he describes the appearance of Secretary of 
State Rogers before 67 Senators as a very favorable departure and 
improvement in congressional-executive relationships. If I may quote 
from a paragraph in the book, which comes after a section in which 
he discusses the "question hour" that is used in the parliamentary 
system. 

A modest step in this direction was taken on March 25, 1971, when Secretary 
(if State Rogers met with 67 Members of the Senate for an extraordinary ex- 
change of views on the administration's Middle East policy. This closed 
meeting represented one of the few times in recent history that a Secretary of 
State appeared before the full Senate. The meeting, which was apparently suc- 
cessful in clarifying the American position on the withdrawal of Israeli troops 
from conquered Arab territory, as well as other related matters, could serve as a 
precedent for future discussions with the Senate on important foreign policy 
issues. 

I might add that I think the Secretary's two recent appearances 
before the Wednesday morning briefing sessions open to all Members 
of Congress falls in this same type of pattern. 

Early this year I started special monthly luncheons for congres- 
sional staff members to meet with top departmental officers, usually 
at the Assistant Secretary level, for off-the-recorcl discussions of cur- 
rent issues and to enable these officials to become better known on the 
Hill in order to aid in more frequent and informal communications, 
that is, giving the staff on the Hill increased access to the State 
Department bureaucracy. 

In addition to these regularly scheduled exchanges, the Depart- 
ment of State has hosted breakfasts, lunches, and coffee to bring to 
members and staff our best and most informed officials in off-the-record 
discussions. Wo have also brought countless foreign visitors to meet 
with members and staff as a means to give the Congress direct access 
to information about important foreign affairs questions. 



3203 

The inauguration this session of Congress of annual authorization 
legislation for the Department of State marks the beginning of still 
another forum of the provision of information to the Congress. The 
hearings held in both houses could become a major annual forum 
for a systematic review of our entire foreign policy and of our foreign 
relations by the Congress. 

The volume of information provided to Congress by the Depart- 
ment of State is considerable. And I will add to the record here some 
statistics that are in my statement. 

Mr. Mooriiead. Without objection, they will be made a part of 
the record. 

(The statistics follow:) 

The volume of information provided to Congress by the Department of State 
is considerable. During the first session of the 92d Congress, for example, only 
29 legislative proposals were submitted for congressional action. Congress itself, 
on the other hand, has actively solicited the Department's views on legislation 
proposed by others. Thus, in the first session of the 92d Congress, the Depart- 
ment received and processed 1,172 requests for its views on pending or proposed 
legislation, not including private immigration bills. 

Mr. Abshire. We arranged early in this session of Congress to pro- 
vide systematic special briefings for the various subcommittees of 
the House Committee on Foreign Affairs on matters of particular 
interest to them. These are in addition to the various special briefings 
for both members and staff on such crisis situations as Cambodia and 
the India-Pakistan hostilities. At present, a special briefing paper on 
current development is prepared periodically, usually weekly, for 
two of the subcommittees. In addition, new arrangements have been 
made for the Department's Bureau of Intelligence and Research to 
make more of its "finished intelligence" available to Senators, Mem- 
bers of Congress and committee personnel. 

The Secretary of State has taken the lead in proposing new means 
of conveying foreign policy information to the Congress. In his testi- 
mony before the Senate Committee on Foreign Relations a little over 
a year ago, on May 14, 1971, Secretary Rogers offered to instruct each 
of our geographic Assistant Secretaries regularly to provide a full 
briefing on developments in his area. This offer was expressly renewed 
by the Secretary in a letter of July 6, 1971, addressed to the com- 
mittee chairman. 

During the course of that same testimony Secretary Rogers spoke 
of an imaginative proposal later incorporated in a bill introduced by 
Congressman Frank Horton when the Secretary said that : 

Suggestions have come from a number of quarters for the establishment of a 
joint congressional committee which could act as a consultative body with the 
President in times of emergencies. If, after study, you believe this idea has merit, 
we would be prepared to discuss it with the committee and determine how 
best we could cooperate. 

Here, too, the Department remains ready to respond to a congres- 
sional request. 

EXECUTIVE PRIVILEGE 

There are occasions when the President must conclude that the prop- 
er exercise of his functions as Chief Executive, responsible for the 
conduct of our Nation's foreign relations, precludes the disclosure of 
some item of information. I think it fair to say, however, that these 
instances are rare. 



3204 

I would not presume to review the extensive legal and scholarly 
literature on the prerogatives of the several branches of our Govern- 
ment with which I know you distinguished members are familiar. 
But I would suggest that while the President's denial of information 
to the other branches is commonly referred to as "executive privilege," 
it is in a sense exercised by all branches and might more properly be 
known as "constitutional privilege." In fact, of course, the concept is 
recognized by the courts and by the Congress which has recognized the 
exercise of executive privilege as an executive option in certain of its 
legislation — for example, section 634c of the Foreign Assistance Act 
of 1961 as amended with which most of us are familiar. Then Assist- 
ant Attorney General Rehnquist cited a number of examples of con- 
gressional recognition of executive privilege in his testimony before 
this subcommittee on June 29, 1971. 

In like manner, judges do not make available to Congress or to the 
President the preliminary memorandums prepared by their law clerks 
suggesting the disposition of cases. Nor do they make their draft con- 
clusions or opinions publicly available. Likewise, Congress does not 
make the President or the courts privy to its confidential proceeding's. 
Con.orressional committee or subcommittee chairmen do not provide 
the President or the judiciary with internal memorandums addressed to 
them by staff members. The Congress has always carefully maintained 
the inviolability of its proceedings from trespass by the courts or the 
Executive. Nor would the President or the courts expect to share such 
confidential communications. Those charged with decision on public 
policy in the courts, in the Congress and in the executive branch need 
to receive advice and information. They must be confident that those 
who are providing it do so with absolute candor and freedom from fear 
of exposure to undue external pressures. 

Secretary Rogers stated the problem in an address delivered in 1950 
when he was Attorney General — and, Mr. Chairman, with your permis- 
sion. I will make the quote a part of the record. 

Mr. Moorttead. The full quote will be made a part of the record, Mr. 
Al 'shire, without objection. 

(The quote referred to follows :) 

Government could not function if it was permissible to go behind judicial, 
legislative, or executive action and to demand a full accounting from all subordi- 
nates who may have been called upon to make a recommendation in the matter. 
Such a process would be self-defeating. It is the President, not the White 
House staff, the heads- of departments and agencies, not their subordinates, the 
.pulses, not their law clerks, and Members of Congress, not their executive 
assistants, who are accountable to the people for official public actions within 
their jurisdiction. Thus, whether the advice they receive and act on is good 
or bad there can be no shifting of ultimate responsibility. Here, however, the 
question is not one of nondisclosure as to what was done, but rather whether 
the preliminary and developmental processes of arriving at a final judgment 
needs to be subjected to publicity. Obviously, it cannot be if Government is to 
function. 

Mr. Absiiire. It is because of these considerations that the Presi- 
dent does sometimes conclude that a particular document or specific 
information should not be disclosed. But even in these cases, accommo- 
dations have usually been worked out so that Congress has received 
the substantive information it has sought while the confidentiality of 
sensitive details and the documents themselves have been preserved. 



3205 

For example, when the Department concluded that it could not prop- 
erly furnish cables related to the situation in Pakistan to the Senate 
Committee on Foreign Relations, other means were found to provide 
the basic substantive information requested. 

In my experience, in short, almost all congressional requests for 
information are honored. And of the very few requests which raise a 
problem for the executive branch, the vast majority are met with the 
kind of practical compromise that is essential for our system to func- 
tion effectively. 

As you know, President Nixon announced early in this admin- 
istration that he would decide personally before any congressional 
request for information should be finally denied. He made that rule 
because he is conscious of the need of Congress for substantial infor- 
mation in order to properly carry out its functions. Specifically, on 
March 24, 1969, the President said : 

The policy of this administration is to comply to the fullest extent possible 
with congressional requests for information. 

He went on to say that the executive branch authority to withhold 
information, the disclosure of which would be incompatible with the 
public interest, would be invoked "only in the most compelling cir- 
cumstances, and after a rigorous inquiry into the actual need for its 
exercise/' And then only with "specific Presidential approval." 

In the field of foreign affairs executive privilege has been invoked 
by President Xixon only on two occasions — three cases, but on two 
occasions. 

The first was on August 30, 1971, when the President concluded 
that— 

* * * it would not be in the public interest to provide to the Congress the 
basic planning data on military assistance as requested by the chairman of 
the Senate Foreign Relations Committee * * * 

These data were described as — 

* * * internal working documents which would disclose tentative planning 
data on future years of the military assistance program which are not approved 
executive branch positions. 

The second was on March 15, of this year, when the President di- 
rected that "internal working documents concerning the foreign as- 
sistance program or international information activities, which would 
disclose tentative planning data, such as is found in the century pro- 
gram memorandums and the country field submissions, and which are 
not approved positions" be made not available as requested by the 
Senate Committee on Foreign Relations and this subcommittee, respec- 
tively. In both instances the President noted that substantial informa- 
tion on these subjects had been provided and would continue to be 
provided to Congress, and he emphasized the limited nature of these 
two directives. 

I ought to note here, should there be any doubt, that the President's 
invocation of executive privilege on these two occasions did not consti- 
tute a blanket delegation of the authority to his subordinates to claim 
this privilege. Its exercise remains personal and, therefore, restricted 
to the most essential issues. 



rG-253— 72— pt. 8 18 



3206 



CONCLUSION 



Before I close, please permit me to lay before you several thoughts 
about the long-term relationship of the three branches. 

We all know that the demarcation between the legislative and the 
executive is not static. It is a dynamic feature of our system shifting in 
response to the needs and the demands of the day to provide responsi- 
ble, effective and democratic government to the Republic. 

During periods of great threat to the Nation — in war or in eco- 
nomic crisis— the pendulum has swung to greater executive preroga- 
tive. But after each crisis, the pendulum has swung back to greater 
legislative power. After the Civil War and after the First World 
War, the reaction to presidential power was at times dangerously d,e- 
structive. Since World War II we have for the most part escaped a 
similar destructive reaction. But we have without doubt, I believe, 
seen a steady return to the Congress of power in the area of interna- 
tional affairs. 

Your subcommittee, Mr. Chairman, is making a significant con- 
tribution to this readjustment of power in the Federal Government. 
Your concentration upon the process of government rather than upon 
specific foreign policy issues offers us all a new opportunity to examine 
how to rebalance our system without the destructive overtones of 
ea rl ier read j ustments. 

We are all conscious that our meeting here today is a part of the 
dynamic process of our system of checks and balances. The existence of 
three separate branches supposes a continuing testing among them of 
public policy. We believe that in such a process we will come closer to 
the wisest policy; closer to discovering the national interest that no 
one of the three branches can be sure to know. 

It is entirely understandable and right that the Congress should 
expect to be informed about foreign developments and about the 
President's policy toward them. It is my difficult job to help to meet 
that need. Because of the rapid pace of current events, because of the 
many new departures now being taken in our foreign policy, because 
of the extraordinary complexity and the far-reaching implications 
and because of the delicacy of the preparations surrounding them, we 
are not always able to get to the Congress as much information as 
rapidly as we should like. With your help, encouragement, and imagi- 
nation, I believe that we can do better. We welcome your efforts to 
help us find ways to do so. 

Thank you, Mr. Chairman. 

Mr. Moorhead. Thank you, Mr. Abshire. 
(Mr. Abshire's prepared statement follows :) 

Prepared Statement of David M. Abshire, Assistant Secretary of State for 
Congressional Relations 

I wish first to thank yon, Mr. Chairman, for the opportunity to appear before 
this subcommittee, which over the years has done such substantial and thought- 
ful work in the area of government information. My office was established at the 
recommendation of the 1949 Hoover Commission to create a coordinated program 
of two-way liaison with the Congress. For something over 2 years I have wrestled 
.with the business of trying to provide more information to the Congress on behalf 
of the executive branch. Consequently, I welcome this first opportunity to discuss 
in a public congressional forum the broader aspects of information policy and, 
specifically, the policy by which the administration, the Secretary of State, and 
the Department of State are guided. 



3207 

At the outset I want to tell you of the rationale that underlies our information 
policy. I realize that public policy cannot be made nor effective government 
conducted unless both the legislative and the executive branches of our Govern- 
ment are well informed about national issues. I am fully aware that the Congress 
is the first branch created by the Constitution. It is the political and legal peer 
of the judiciary and the executive. Moreover, I am aware of the difficulty faced 
by the Congress in matching the executive branch in its resources of staff and 
in its access to information. In recent years the Congress has increased its staff 
support to cope with this very real problem. I believe that is a constructive 
contribution to the maintenance of the de facto parity of the three branches of 
our Government about which there can be no doubt de jure. 

I say this by way of preface to underscore my sensitivity to your needs for 
adequate access to information about the activities of the executive branch and 
to the information that the executive branch is constantly acquiring. I might 
add that in the decisionmaking process within the executive branch on a congres- 
sional request, the congressional relations representatives almost always are the 
proponents of greater sharing of information with the Congress. There are other 
consi derations affecting the decision on disclosure, however, that are important 
ones, and at times must be overriding. It is for this reason, that I would ask 
you to consider with me some of the traditional concerns of the executive branch 
before discussing specific policies and cases. 

THE SEPARATION OF POWERS 

I believe that we must frankly recognize the dilemma that has faced legisla- 
tors, the courts and presidents since the founding of the Republic. In our Gov- 
ernment of separate powers based upon checks and balances, the precise sphere 
of each is never clearly, finally or satisfactorily delineated. For almost two 
centuries, men of good will and intense dedication have debated the boundaries. 
Although, and perhaps because, there has never been a final agreement, our 
Government has been effective, creative, and responsive. 

A parliamentary form of government was tried in this country for approxi- 
mately 10 years before the Revolution. During that decade of trial and testing 
there were revealed serious practical shortcomings — including those within the 
areas of diplomacy and military affairs. The Constitutional Convention meeting 
in Philadelphia in 1787, adopted in its place the tripartite system of three 
coordinate but independent branches of government that has formed the basis 
of our Government for nearly 200 years. 

In considering the development of our system it is revealing to compare the 
provisions of the Constitution to those of the Articles of Confederation with 
respect to the furnishing of foreign affairs information to the Congress. Con- 
sistent with a parliamentary form of government, the Continental Congress 
under the Articles of Confederation created a Department of Foreign Affairs 
under the direction of a Secretary by resolution of February 21, 1782 providing : 

"That the books, records and other papers of the United States, that relate 
to this Department be committed to his custody, to which * * * any Member of 
Congress shall have access ; 

"That letters (of the Secretary) to the ministers of the United States, or 
ministers of foreign powers which have a direct reference to treaties or conven- 
tions proposed * * * or other great national objects, shall be submitted to the 
inspection and receive the approbation of Congress * * *" 

A much different scheme of things has been legislated under our present con- 
stitutional system. The Constitution, in article II, section 2, provides expressly 
that the President — 

"May require the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of their respective 
offices***" 

This provision parallels the initial clause of article II, section I, which 
provides that — 

"The executive power shall be vested in a President of the United States of 
America." 

No similar provision exists in the Constitution by which Congress may neces- 
sarily "require" any information from the executive branch. Indeed, the consti- 
tutional requirements in this regard appear to be limited to the provision in 
article I. section 3. that the President — 

^ "Shall from time to time give to the Congress information of the state of the 
Union, and recommend to their consideration such measures as he shall judge 
necessary and expedient * * *" 



3208 

This constitutional form is clearly reflected in the act of July 27, 1789, which 
first established a "Department of Foreign Affairs" in the new Government. 
The act provided : 

"* * * That the Secretary * * * shall forthwith after his appointment be 
entitled to have the custody and charge of all records, books, and papers in the 
Office of Secretary for the Department of Foreign Affairs, heretofore established 
by the United States in Congress assembled." 

There is no mention of congressional access to those '"records, books, and 
papers." This was a decisive and deliberate departure from the system created 
by the Articles of Confederation. 

I think that this history is important, Mr. Chairman, but I cannot emphasize 
too much that I am not citing it to put in doubt the right and the need of the 
Congress to know in order to carry out its legislative functions. 

In fact, it has long been held that Congress, by virtue of the powers entrusted 
to it by the Constitution, has certain implied powers of inquiry and oversight 
even though these are not explicitly stated in the Constitution. Thus, Congress 
is entitled to obtain information from the executive branch reasonably necessary 
to enable it to carry out its constitutional functions. But this, not an unlimited 
right, must be balanced against the requirement of the executive branch in carry- 
ing out its constitutional responsibilities. 

Our system can function satisfactorily only when each of the branches acts 
responsibly and constructively. Any wise President knows, as you and I know, 
that he cannot sustain a public policy that does not enjoy public and congressional 
understanding and support. Nor does the President want to carry out policies 
lacking democratic approval. The continuing affirmation of that approval depends 
upon ample public and congressional knowledge of the choices before the Nation. 
This means assuring that, to the greatest degree possible, the Congress and the 
public have the facts which have influenced the President and his executive 
branch. 

In the field of foreign affairs, this need often gives rise to the dilemma to 
which I earlier alluded. 

The executive branch does have confidential information not equally accessible 
to the Congress and the public. In some cases to divulge confidential information 
may be harmful to the very interests which the Congress, the courts, and the 
executive branch are sworn to uphold and defend. 

That is a profound dilemma that no Congress and no President has ever fully 
resolved nor is any likely to do so. At this very time, however, Representative 
Patsy Mink is awaiting Supreme Court consideration of her suit under the 
Freedom of Information Act which she has explained is designed "in part to 
secure a judicial construction of the Freedom of Information Act that would 
guarantee Members of Congress the unlimited right to seek and obtain informa- 
tion in the hands of the executive." (P. E5506, Congressional Record, May IS, 
1972.) 

The Court's ruling will be illuminating, and may settle a number of the prob- 
lems with which we are now wrestling. 
I turn now to congressional liaison. 

Mr. Justice Brandeis wrote of the motivation for our unique system when he 
observed in 192G that — 

"The doctrine of separation of powers was adopted by the Convention of 1787, 
not to promote efficiency, but to preclude the exercise of arbitrary power. The 
purpose was not to avoid friction but, by means of the inevitable friction inci- 
dent to the distribution of governmental powers among three departments, to 
save the people from autocracy." 

If a certain amount of friction is part and parcel of our machinery of Govern- 
ment, as Justice Brandeis says, I see the role of congressional liaison as one of 
trying to provide enough lubrication to see that that machinery does not break 
down. Communication among the branches is the lubricant of the machinery of 
Government which keeps friction to tolerable limits. Communication is the 
essential ingredient that permits the separate branches to understand each other, 
even while engaged in an adversary process. It gives the opportunity for the 
national interest to emerge from conflicting conceptions of it. 

You and I, from our daily experiences with government, know how many 
times deadlock arises when communication has broken down. We both know 
how many times deadlock has been resolved when the parties have finally under- 
stood one and other. On the other hand, the final failure to achieve a com- 
promise that would have permitted the Senate to give its advice and consent 



3209 

in the Treaty of Versailles in my view earue from a breakdown in delicate com- 
munications between the President and the Senate. 

1 have tried to outline the philosophy that must guide our day-to-day efforts 
to try to assure that the Department of State fully understands the views of the 
Congress and that the Congress understands those of the Department. 

Now let me turn to the practical means by which the executive branch is 
endeavoring to meet your need and our need that the Congress have adequate 
foreign affairs information to perform its functions. 

At the top of the list are the President's comprehensive reports to the Congress. 
They constitute the most authoritative, complete and rationally defined state- 
ments of the President's foreign policy and of his appraisal of the world situation. 
The most ancient and most widely studied is the traditional annual state 
of the Union message. It provides the Congress and the Nation with the Presi- 
dent's synthesis of our domestic and international posture. 

This administration has gone much farther. The President has also made a 
comprehensive, scholarly and precise annual report to the Congress on his 
foreign policy. These annual reports have given a conceptual approach to this 
administration's foreign policy that I believe has been a significant step forward. 
The Presidents reports, in turn, have been supplemented by even more detailed 
submissions from the Secretary of State who on March 26. 1971 submitted a 617 
page report to the Congress entitled '-United States Foreign Policy 1969-1970" 
and on March S. 1972 submitted a 604 page report on "United States Foreign 
Policy 1971." which I have here before us. 

These reports constitute an effort to draw together the entire skein of our 
foreign relations at the highest policy level and to relate the numerous aspects 
of our foreign affairs to a single, coherent approach to our external relations. 
As such, they capture our foreign policy in its most authoritative sense and 
offer Congress and public alike a precise formulation of the Administration's 
position. 

If I may say so, Mr. Chairman, I don't believe that the administration has re- 
ceived the credit due it by the Congress or the press for these major steps for- 
ward. This is purely unintentional. I know, but the danger is that future adminis- 
trations might not be encouraged to follow suit. I do hope that any final report of 
this able subcommittee will examine these important improvements in Executive 
to legislative and in Executive to public communications in the field of infor- 
mation policy. 

To move to more traditional forms of information policy. Secretary Rogers, 
and the Department of State generally, have provided Congress with a large 
volume of information, through formal testimony, in both public and executive 
sessions, through intensive briefings, personal meetings and correspondence. 

The Secretary of State in the first 3 years of his service has appeared on 43 
different occasions to testify formally before the committees of Congress. Other 
senior officers of the Department also have testified frequently. Their appearances 
totaled 181 last year alone. 

An enormous number of congressional inquiries are received and replied to each 
year by the Department. For the year 1971 alone, we received 18,964 congres- 
sional letters. 

I consider this correspondence of the greatest importance and I want you to 
know of the very considerable attention which the Department of State very 
gladly gives to providing the Congress with full, clear and timely replies. Just 
this spring, I began a new campaign to improve our responses by stressing clarity, 
appreciation of differing points of view and responsiveness. 

I spelled out the need for improvement in an article cii-culated to all officers t 
of the Department in Washington and throughout the world. (Department ot 
State Newsletter, April 1972, p. 10-11) At the same time we began a continuing 
series of meetings with Department officers to explain the importance of congres- 
sional correspondence and the need to make the extra effort to satisfy congres- 
sional inquiries. 

In addition to correspondence, in 1971 an average of approximately 220 tele- 
phone inquiries from Congress were handled each working day by our Office of 
Congressional Relations of 25 people, and an additional uncounted number by 
other offices in the Department of State. 

Executive briefings are given to the Congress as a whole, to committees, to less 
formal groups, to individual members and to congressional staff members. For 
many years regular "Wednesday morning briefings have been provided for Mem- 
bers of Congress while Congress is in session. There were 31 of these Wednesday 



3210 

briefings given last year and the Secretary of State himself has recently appeared 
twice. 

Early this year I started special monthly luncheons for congressional staff mem- 
bers to meet with top departmental officers, usually at the Assistant Secretary 
level, for off-the-record discussions of current issues and to enable these officials 
to become better known on the Hill in order to aid in more frequent and informal 
communications, i.e., increased access to the bureaucracy. 

In addition to these regularly scheduled exchanges, the Department of State 
has hosted breakfasts, lunches, and coffees to bring to members and staff our 
best and most informed officials in off-the-record discussions. We have also 
brought countless foreign visitors to meet with members and staff as a means 
to give the Congress direct access to information about important foreign 
affairs questions. 

The inauguration this session of Congress of annual authorization legislation 
for the Department of State marks the beginning of still another forum for 
the provision of information to the Congress. The hearings held in both Houses 
could become a major annual forum for a systematic review of our entire foreign 
policy and of our foreign relations by the Congress. 

The volume of information provided to Congress by the Department of State 
is considerable. During the first session of the 92d Congress, for example, only 
2P> legislative proposals were submitted for congressional action. Congress 
itself, on the other hand, has actively solicited the Department's views on legis- 
lation proposed by others. Thus, in the first session of the 92d Congress, the 
Department received and processed 1,172 requests for its views on pending 
or proposed legislation, not including private immigration bills. 

We arranged early in this session of Congress, to provide systematic special 
briefings for the various subcommittees of the House Committee on Foreign 
Affairs on matters of particular interest to them. These are in addition to the 
various special briefings for both members and staff on such crisis situations as 
Cambodia and the India-Pakistan hostilities. 

At present, a special briefing paper on current development is prepared 
periodically, usually weekly, for two of the subcommittees. In addition, new 
arrangements have been made for the Department's Bureau of Intelligence and 
Research to make more of its finished intelligence available to Senators, Mem- 
bers of Congress, and committee personnel. 

The Secretary of State has taken the lead in proposing new means of convey- 
ing foreign policy information to the Congress. In his testimony before the 
Senate Committee on Foreign Relations a little over a year ago. on May 14, 
1971, Secretary Rogers offered to instruct each of our geographic assistant secre- 
taries regularly to provide a full briefing on developments in his area. This 
offer was expressly renewed by the Secretary in a letter of July 6, 1971, addressed 
to the committee chairman. 

During the course of that same testimony Secretary Rogers spoke of an imag- 
inative proposal later incorporated in a bill introduced by Congressman Frank 
Horton when the Secretary said that : 

"Suggestions have come from a number of quarters for the establishment of 
a joint congressional committee which could act as a consultative body with 
the President in times of emergencies. If. after study, you believe this idea 
has merit, we would be prepared to discuss it with the committee and deter- 
mine how best we would cooperate." 

Here, too, the Department remains ready to respond to a congressional 
request. 

EXECUTIVE PRIVILEGE 

There are occasions when the President must conclude that the proper 
exercise of his functions as Chief Executive, reponsible for the conduct of our 
Nation's foreign relations, precludes the disclosure of some item of information. 
I think it is fair to say, however, that these instances are rare. 

I would not presume to review the extensive legal and scholarly literature 
on the prerogatives of the several branches of our Government with which T 
know you distinguished Members are familiar. But. I would suggest that while 
the President's denial of information to the other branches is commonly re- 
ferred to as executive privilege, it is in a sense exercised by all branches and 
might more properly be known as constitutional privilege. In fact, of course, 
the concept is recognized by the courts and by the Congress which has recog- 
nized the exercise of executive privilege as an Executive option in certain of 
its legislation. (For example, section 634c of the Foreign Assistance Act of 1961 



3211 

as amended is an example with which most of ns are familiar.) Then Assistant 
Attorney General Rehnquist cited a number of examples of congressional recog- 
nition of executive privilege in his testimony before this subcommittee on 
June 29. 1971. 

In like manner, judges do not make available to Congress or to the President 
the preliminary memoranda prepared by their law clerks suggesting the dispo- 
sition of cases' Nor do they make their draft conclusions or opinions publicly 
available. Likewise, Congress does not make the President or the courts privy to 
its confidential proceedings. 

Congressional committee or subcommittee chairmen do not provide the Presi- 
dent or the judiciary with internal memoranda addressed to them by staff 
members. The Congress has always carefully maintained the inviolability of 
its proceedings from trespass by the courts or the Executive. Nor would the 
President or the courts expect to share such confidential communications. 
Those charged with decision on public policy in the courts, in the Congress and in 
the executive branch need to receive advice and information. They must he 
confident that those who are providing it do so with absolute candor and freedom 
from fear of exposure to undue external pressures. 

Secretary Rogers stated the problem in an address delivered in 1956 when he 
was Attorney General. 

"Government could not function if it was permissible to go behind judicial, 
legislative, or executive action and to demand a full accounting from all subor- 
dinates who may have been called upon to make a recommendation in the 
matter. Such a process would be self-defeating. It is the President, not the 
White House staff, the judges, not their law clerks, and Members of Congress, 
not their executive assistants, who are accountable to the people for official 
public actions within their jurisdiction. Thus, whether the advice they receive 
and act on is good or bad there can be no shifting of ultimate responsibility. 
Here, however, the question is not one of nondisclosure as to what was done, 
but rather whether the preliminary and developmental processes of arriving 
at a final judgment needs to be subjected to publicity. Obviously, it cannot be if 
Government is to function." 

It is because of these considerations that the President does sometimes con- 
clude that a particular document or specific information should not be dis- 
closed. But even in these cases, accommodations have usually been worked out 
so that Congress has received the substantive information it has sought while 
the confidentiality of sensitive details and the documents themselves have been 
preserved. For example, when the Department concluded that it could not 
properly furnish certain cables related to the situation in Pakistan to the Senate 
Committee on Foreign Relations, other means were found to provide the basic 
substantive information requested. 

In my experience, in short, almost all congressional requests for information 
are honored. And of the very few requests which raise a problem for the ex- 
ecutive branch, the vast majority are met with the kind of practical compromise 
that is essential for our system to function effectively. 

As you know, President Nixon announced early in this administration that 
he would decide personally before any congressional request for information 
should be finally denied. He made that rule because he is conscious of the need 
of Congress for substantial information in order properly to carry out its func- 
tions. Specifically on March 24, 1969, the President stated. 

"The policy of this administration is to comply to the fullest extent possible 
with congressional requests for information." 

H