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 2 277-77?
Part 3 779-1003
part, 4 1005-1373
Part 5_"-"_"-_ 1375-1817
Parte 1819-2282
part 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 Pase
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 ft. 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 authority3 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 wTas 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 wre 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 review7 the documents regularly.
Mr. Gude. How are the executive reservists apprised of the results
of your reviewT 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 now7. 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 post. 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. ri 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— with 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
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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 and1 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 PowTers, 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 wTar 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-0-.
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.ri00.2C
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 tin1
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\To 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. WTe 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,0 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 taxpayers1 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 }7ou 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 have1 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&sey
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
Seerecy. 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.
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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 }tou 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 nothing7 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 wTith 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 officerst
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."
He went on to say that the executive branch authority to withhold informa-
tion, the disclosure of which would be incompatible with the public interest,
would be invoked "only in the most compelling circumstances, and after rigorous
inquiry into the actual need for its exercise" and then only with "specific Presi-
dential approval."
In the field of foreign affairs executive privilege has been invoked by President
Nixon only 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 ap-
proved executive branch positions."
3212
The second was on March 15 of this year, when the President directed that —
"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 memorandums and the country
field submissions, and which are not approved positions," not be made available
as requested by the Senate Committee on Foreign Relations and this subcom-
mittee, respectively. In both instances the President noted that substantial in-
formation 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 invoca-
tion of executive privilege on these two occasions did not constitute 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.
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 responsible, effective, and
democratic government to the Republic. During periods of great threat to the
Nation — in war or in economic crisis — the pendulum has swung to greater
executive prerogative. 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 destructive.
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 international affairs.
Your subcommittee, Mr. Chairman, is making a significant contribution 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 earlier readjustments.
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 discover-
ing 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 imagination, I believe that
we can do better. We welcome your efforts to help us find ways to do so.
Mr. Moorhead. At this time, I would like to administer the oath
to both you and Mr. Salans.
And Mr. Ablard, I would also administer the oath to you and your
associate who will testify.
Do you solemnly swear that the testimony you have given and
will give tli is subcommittee will be the truth, the whole truth and
nothing but the truth so help you God ?
Mr. Abshire. T do.
Mr. Salans. T do.
Mr. Ablard. I do.
Mr. Hall. I do.
Mr. Moorhead. Well, thank you very much, Mr. Abshire, for an
excellent statement in a very smooth and diplomatic way.
3213
I think you have put your finger on the real issue that this sub-
committee is trying to raise when you quoted Mr. Justice Brandeis
that the separation of powers is "not to promote efficiency but to pre-
clude the exercise of arbitral"}7 power." You also point out that there
are some inevitable frictions. If any frictions should develop at this
hearing, let me assure you there is nothing personal. We are really
trying to redress what we think is an imbalance of power resulting
from the fact that almost all information in the field of foreign rela-
tions, military affairs, and related areas is contained in the executive
branch. Information and knowledge are power, and the power has
gone where the knowledge and information is maintained.
For example, what is the total personnel of the Department of
State in round figures ?
Mr. Abshire. I believe it is approximately 13,000.
I would have to refresh myself on that, Mr. Chairman.
Mr. Mooriiead. All right. We can correct that. I would like to ask
that a check be made of the total personnel in the Congress of the
United States — not by you, but by our staff — as to the total personnel
of the Congress that are staff people who are dealing with foreign
affairs.
(A review of the personnel listings of House and Senate jurisdic-
tional committees, appropriations subcommittees, and investigative
subcommittees shows that the total including clerical and professional
is less than 100.)
Mr. Mooriiead. I think the disparity will point up how much we must
inevitably depend upon information from the Executive if we are to
carry out our constitutional duties, unless we set up a parallel bureauc-
racy of several thousand people to get the information to the Con-
gress, which seems like an inefficient way and also would cause even
more friction and maybe even less efficiency.
Mr. Abshire. Mr. Chairman, I was speaking of employees. Foreign
Service personnel would be much below that, but I will give you the
correct figures.
(The information follows :)
DEPARTMENT OF STATE— SUMMARY OF EMPLOYMENT, MAR. 31,1972
CATEGORY AND TYPE OF EMPLOYMENT
Category
Other than permanent
Full-time
permanent Temporary Part-time Intermittent Employment
Americans:
Civil service
Foreign Service
Total A mericans. . . _ _
Foreign nationals..
Total employment.
Distribution ot employment by area:
Domestic
Overseas..
Total __ 22,775
3,684
8.679
425
53
137
101 ....
82
4,328
8,833
12, 363
10,412
478
112
238
149
82
128
13,161
10,801
22, 775
590
387
210
23,962
6,594
16,181
478
112
188
199
82
128
7,342
16,620
590
387
210
23,962
3214
TABULATION OF EMPLOYEES OCCUPYING PERMANENT AND TEMPORARY POSITIONS BY CATEGORY AND CLASS,
MAR. 31, 1972
Category and class
Total
Full-time in
permanent
positions
Other than
permanent
positions
Chiefs of Mission:
Career Ambassador
Career Minister .
36
1
36
43
3
35 ..
FSO-1..
43
FSO-2.._ _
3
Noncareer... .
Total
118
118 ..
Nonchiefsof Mission:
Career Ambassador.,.
i 2
2
17
234
393
597
658
564
312
177
32 ._
Career Minister .
i 17
FSO-1
FSO-2..
FSO-3
FSO-4
FSO-5..
FSO-6
312
FSO-7
FSO-8....
32
Total, FSO.._
2,986
FSR-1
95
180
230
263
193
192
199
40
4
14
FSR-2..
FSR-3
FSR-4..
FSR-5
2
FSR-6..
FSR-7 .
1
FSR-8
9
Total, FSR
1,425
1.392
33
FSRU-1. .
9
38
35
31
21
35
14
1
FSRU-2.
FSRU-3....
FSRU-4 ...
FSRU-5_...
FSRU-6. ..
FSRU-7
FSRU-8
Total, FSRU
184
184 ..
FSS-1...
127
221
312
442
601
809
779
556
114
36
FSS-2..
1
FSS-3
FSS-4..
FSS-5
6
FSS-«
FSS-7
15
FSS-8__._
14
FSS-9....
16
18
FSS-10
54
Total, FSS
4 072
3.997
75
Resident staff
39
2 ...
39
Consular agents
7
7
Unclassified
2
Total, foreign service
8 833
8,679
154
GS-1...
8
GS-2....
25
94
190
393
304
449
229
358
40
235
178 ...
74
GS-3.
79
151
156
GS-4
GS-5
GS-6
GS-7
20
GS-8..
GS-9
358
GS-10
GS-11
2
GS-12
3215
TABULATION OF EMPLOYEES OCCUPYING PERMANENT AND TEMPORARY POSITIONS BY CATEGORY AND CLASS,
MAR. 31, 1972— (Continued)
Full-time in Other than
permanent permanent
Category and class Total positions positions
GS-13.
GS-14 _
GS-15
GS-I6. __
GS-17
GS-18
205
203
2
150
149
1
135
133
2
20
20
4
4
2
2
GG-1..
GG-2..
GG-3..
GG-4..
GG-5..
GG-6..
GG-7..
GG-8..
GG-9._
GG-10.
GG-11.
GG-12.
GG-13.
GG-14.
GG-15.
GG-16.
GG-17.
GG 18.
Total, GS.. _ 3,509 3,007 502
1
1
2
2
7
7
14
4
10
49
19
30
25
19
6
30
25
5
27
25
2
15
15
16
13
3
14
14
13
13
9
9
7
1
7
1
1
1
Total GG 231 175
WG-1
WG-2 . . - - - - --
WG-3 . 2 2
WG-4 ""22
WG-5 ". " 4 4
WG-6 . 26 26
WG-7 ". . . " 8 8
WG-8
WG 9 . """
WG-10 . " 2 2"
WG-11 . .
wg-12 ' i" " I"
WG-13
WG-14. " i"" "l
Total, WG.
WP-4 . 3 3
WP-5
WP-6 " " " 4 """ 4
WP-7 " " " 4 4
WP-8 . 19 19
WP-9 10 10
WP-10 2 2
WP-11 . . 22 22
WP-12 .„.„:.....„„..... 14 14
WP-13 . . . 10 10
WP-14- " 5 5
WP-15 " - - - 3 3
WP-16. .. .... " " .... 5 5
WP-18 . 2 2
WP-20 2 2
WP-22 "I™I™-III_II™™™™_I.™ 1
Total WP
Unclassified
Total.
WAE and contract.
IBWC.
Total civil service.
Total Americans..
Foreign nationals.
106
19
106
19
3,915
78 ...
335
3,357
327
558
78
8
4, 328
3,684
644
13,161
10, 801
12,363
10,412
798
389
Grand total 23,962 22,775 1,187
1 Does not include FSO Chiefs of Mission counted above.
3216
DEPARTMENT OFSTATE, FOREIGN SS
1RVICE AMERICANS BY CATEGORY AND CLASS, OVERSEAS AND U?
!ITED STATES
Category and class
Total
Continental
United States
Foreign
countries
Chiefs of mission:
Career Ambassador
Career Minister...
FSO-1
._ 1 .
36
43
5
6
1
31
37
FSO-2...
._ 3 .
3
Nonca reer
._ _ 35
35
Total _
118
11
107
Nonchiefs of Mission:
Career Ambassador
Career Minister
FSO-1
12
i 17
1234
2
14
129
169
258
278
273
136
37
5
3
105
FSO-2.
i 393
224
FSO-3..
597
339
FSO-4
658
380
FSO-5
564
291
FSO-6
312
176
FSO-7
177
140
FSO-8
32
27
Total FSO
2 986
1,301
1,685
FSS-1
99
69
130
109
116
67
51
98
31
30
FSR 2
_ 194
64
FSR 3 .
231
122
FSR-4...
264
148
FSR 5
195
128
FSR-6
193
142
FSR-7
200
102
FSR 8 .
49
18
Total, FSR—
1,425
671
754
FSRU-1
FSRU-2..
FSRU-3
FSRU-4..
FSRU-5
FSRU-7.
FSRU-8
9
38
35
31
21
35
14
1
8
34
30
19
11
13
7
1 .
1
4
5
12
10
22
7
Total, FSRU
184
123
61
FSS-1 ---
127
52
86
74
105
141
163
171
89
19
8
75
FSS-2
222
136
FSS-3
312
238
FSS-4
442
337
FSS-5
607
466
FSS-6 -
814
651
FSS-7
794
623
FSS-8
570
481
FSS-9
130
111
54
46
4,072
39
908
3,164
39
7
2
7
2
8,833
3,014
5,819
i Does not include FSO Chiefs of Mission counted above.
3217
TABULATION OF FOREIGN SERVICE EMPLOYEES BY PAY PLAN, GRADE, AND SEX
Category and class
Total
Female
Male
Chiefs of Mission:
Career Ambassador
Career Minister
FSO-1
FSO-2 -
Noncareer
Total.
Nonchiefs of Mission:
Career Ambassador
Career Minister
FSO-1 _
FSO-2
FSO-3.
FSO-4
FSO-5
FSO-6
FSO-7..._
FSO-8
Total, FSO
FSR-1 -.
FSR-2
FSR-3....
FSR-4..
FSR-5
FSR-5.
FSR-7
FSR-3
Total, FSR
FSRU-1
FSRU-2
F^RU-3
F.SRU-4
FSRU-5
FSRU-6. _...
FSRU-7
FSRU-a
Total. FSRH
FSS-1—
FSS-2
FSS-3
FSS-4..
FSS-5
FSS-6.
FSS-7
FSS-8
FSS-9
FSS-10
Total, FSS
Resident staff
Consular agents
Unclassified
Total, Foreign Service
1
1
36
1
35
43
1
42
3
3
35
35
118
2
116
i2
2
i 17
17
1234
4
230
1393
8
385
597
27
570
658
34
624
564
27
537
312
34
278
177
10
167
32
4
28
2, 986
143
2,838
99
2
97
194
6
183
231
15
216
264
24
240
195
17
178
193
19
174
200
36
11
164
49
38
1,425
130
1,295
9
1
4
6
5
7
2
1 ....
9
38
37
35
31
31
25
21
16
35
28
14
12
1
184
26
158
127
12
34
90
167
290
414
352
376
99
50
115
222
188
312
222
442
275
607
317
814
400
794
442
570
194
130
31
54
4
4,072
1,884
2,188
39 ....
1
39
7 ....
7
2
1
2 8,833
2,191
6,642
i Does not include FSO Chiefs of Mission counted above.
2 Includes all Foreign Service Americans in United States and overseas.
3218
TABULATION OF CIVIL SERVICE EMPLOYEES BY PAY PLAN, GRADE, AND SEX— MAR. 31, 1972
Category and class
Total
Male
Female
GS-1..
GS-2_.
GS-3..
GS-4..
GS-5__
GS-6_.
GS-7..
GS-8._
GS-9..
GS-10.
GS-11.
GS-12.
GS-13.
GS-14.
GS-15.
GS-16.
GS-17.
GS-18.
Total GS.
GG-1__
GG-2..
GG-3_.
GG-4..
GG-5..
GG-6_.
GG-7..
GG-8..
GG-9_.
GG-10.
GG-11.
GG-1 2.
GG-13_
GG-14.
GG-1 5.
GG-16,
GG-17.
GG-18.
99
174
341
549
311
469
229
358
40
237
178
205
150
135
20
4
2
3,509
1
24
35
67
152
54
97
45
107
102
145
116
116
18
3
2
1,190
7
75
139
274
397
257
372
184
260
32
130
76
60
34
19
2
1
2,319
Total GG.
WG-1..
WG-2._
WG-3_.
WG-4._
WG-5_.
WG-6_.
WG-7__
WG-8-.
WG-9_.
WG-10_
WG-11.
WG-12.
WG-1 3.
WG-14.
231
112
119
Total WG_
WP-4..
WP-5..
WP-6._
WP-7_.
WP-8..
WP-9..
WP-10.
WP-11.
WP-12_
WP-13.
WP-14.
WP-15.
WP-16.
WP-18-
WP-20.
WP-22_
50
Total WP.
Unclassified
Total Civil Service..
WAE and contract worked in March.
IBWC
106
19
3,915
78
335
4
4 _
4
3
1
19
9
10
10
5
5
2
2
22
14
8
14
6
8
10
7
3
5
4
1
3
3 ....
5
4
1
2
2
2
1
2
1
1,437
2,478
Grand total.
4,328
Source: PMS/PA— Reports and statistics section, Apr. 28, 1972.
3219
Mr. Moorhead. Well, probably when we compare them on a paral-
lel basis, if it is purely professional people then we will put just the
purely professional people in the Congress, but the disparity, I think,
will be so severe that, whichever way we compare it, the point will
be clearly made.
You say, on page 20, that without doubt you have seen "a steady
return to the Congress of power in the area of international affairs."
This is an assertion which I do not want to allow to rest on the record
without my strong disagreement with it being expressed. I think
there should be — and that is as you point out in the next sentence,
that our subcommittee is making a significant contribution to this
readjustment of power in the Federal Government.
I do not know whether we are, but that is our objective. Our ob-
jective is to see that the Congress has information in sufficient quan-
tity and in sufficient depth that it can redress what I think is a severe
''tilt" of power to the Executive. I am referring to the wartime pow-
ers, the mining of harbors, and so forth, where the Congress has no
part in the decision.
So, I do not see this shift of power back to the Congress and that is
one of the reasons for these hearings.
I notice, Mr. Abshire, and I am very pleased, that congressional
relations representatives are almost always the proponents of greater
sharing of information with the Congress. Would that include our
request for the Cambodian field submission documents denied to us
by the President several months ago ?
Mr. Abshire. Mr. Chairman, I do not believe it would be fair or
appropriate for me to go into the given recommendations within
the Department. But I do stand on my earlier statement, in general,
and, frankly, cannot conceive of congressional relations liaison people
working with the Congress who would not inevitably be a force in the
Department for greater disclosure. Our duty and our job — one of our
duties — is to present the congressional view to the Secretary and
throughout the Department, and we are very well aware of the strong
feelings throughout Congress for more information sharing.
Mr. Moorhead. On page 6, you say that the '"system can function
satisfactorily only when each of the branches acts responsibly and
constructively."
I have only served on this subcommittee for a little over a year,
but I understand that we have, over the years, on a routine basis, re-
ceived country field submission documents.
Has the subcommittee ever acted anything but responsibly and con-
structively with respect to those country field submissions?
Mr. Abshire. Mr. Chairman, I feel that this committee has always
acted very responsibly and constructively. I know that this was not
the issue with regard to the determination of nondisclosure that was
made by the President.
Mr. Moorhead. Mr. Abshire, on page 14, you describe the special
briefing papers and the Department's Bureau of Intelligence and
Research making "finished intelligence" available to Members of
Congress. Are those on a classified basis ?
Mr. Abshire. Those are on a classified basis.
Mr. Chairman, if I might add. I think one of our jobs in congres-
sional liaison is to do a better job of making known to the individual
3220
Members what is available. As you can well appreciate, we have a
great deal of contact with the House Foreign Affairs Committee, the
Senate Foreign Relations Committee, the various appropriations com-
mittees where we have legislation, authorization, and appropriation.
I feel that it is most important that my office do all possible to reach
the Members that are not on those particular committees so that they
have a greater knowledge of what is available in the State Depart-
ment : a greater knowledge, on a personal basis, of the State Depart-
ment bureaucracy so that we can furnish more of their needs and so
that they become more aware of what we do have to offer.
Mr. Moorhead. Well, this brings me to a question that I wanted
to ask you :
Is there, in the State Department, any policy whereby you treat
the request of an individual Member differently than, say, the request
of a chairman of a committee, a chairman of a committee of particular
jurisdiction, or a request voted upon by a subcommittee or a com-
mittee ?
Is there a policy? There seems to be within the Department of
Defense.
Mr. Absiiire. Mr. Chairman, there is no formalized policy. We do all
possible to furnish any Member of Congress with as much informa-
tion as we possibly can. We feel that this is in line with the President's
instructions to us, and I, frankly, in the 2 years I have been in this
position, have not seen much of a conflict between what goes to com-
mittees and what goes to individual Members.
Now, let me add that there are other departments and other agencies
that are dealing with sensitive information for certain committees
of jurisdiction, the Joint Atomic Energy Committee being such an
example. In these cases, naturally, the administration respects the
way that the Congress has chosen to organize itself to do its business.
The safeguard procedures vary with some committees and they cer-
tainly do with the Joint Atomic Energy Committee. However, on
classified documents that a member wants, we normally work out
special arrangements if he does not have a safekeeping facility.
Normally, we can do it through a committee having safekeeping
arrangements as a matter of convenience to him.
Mr. Moorhead. But you do not have a policy that if you receive
a request from a particular Member of Congress that you will supply
that data to the committee of jurisdiction and then throw the prob-
lem of access back to the Congress, as it would appear other depart-
ments do ?
Mr. Abshire. We do not have such a formalized policy, and I do
not recall cases. It may be that I do not recall them and they do not
come to my mind now. I really believe that the Department of Defense
in dealing with classified information that involves troop operations
and things of that nature encounters this more frequently than the
Department of State-
Mr. Moorhead. Mr. Abshire, I have some other questions, par-
ticularly those relating to so-called "executive privilege," but at this
time I would like to yield to Mr. Horton.
Mr. Horton. Thank you, Mr. Chairman.
First off, Mr. Abshire, I want to commend you on your statement.
I think it is an excellent statement. You not only give us an analysis
3221
of the historical background of the subject but I think you give us a
very good, realistic presentation of the manner in which the State
Department, and particularly your office, is operating to inform the
Members of Congress.
I also would like to take this occasion to commend you and your
predecessor, Bill Macomber, and those who preceded you in the re-
sponsibility that you have. This is my 10th year in the Congress, and
I have been particularly impressed with the information that the
State Department tries to make available to the Members of Congress,
especially through the technique of the Wednesday morning briefings ;
I want to take this occasion to especially commend you for your re-
sponsibility in that connection.
I also want to point out, as you did in your statement, that you have
expanded this program so that you make it available to members of our
staffs.
Now, my staff has taken advantage of this, and this has been ex-
tremely helpful. I am also aware that you have got some types of pro-
grams to inform wives of Members of Congress, too, of the work that
is going on in the State Department, and I think, again, that this is
very helpful.
You are involved with sensitive information because of your deal-
ings in the diplomatic field and your relations with other nations.
Yet, I find that these off-the-record briefings have been very helpful
to me as a Member of Congress and to members of my staff, and to my
wife. So, I do want to take this occasion to commend you and the State
Department on this effort to, on a weekly basis, provide us with in-
formation which, I think, is very helpful.
And, as you point out, the Secretary has been before the member-
ship twice in recent months to give us an opportunity to talk with him
and give him an opportunity to brief us on matters of extreme
importance.
As a matter of fact, I would recommend and suggest and hope that
the Secretary will speak to us upon his return from Russia with regard
to the events that transpired there.
I must say that I have found those briefings to be very frank, and
from the information I have had they have been very helpful to me
to understand what is going on in different areas. The different people
that have briefed us, Mr. Sisco in particular, I have found to have been
very helpful in keeping us informed of the events that have transpired
in the Middle East and other parts under his jurisdiction.
And I think if the other departments did the very same type of thing
it would be very helpful. As a matter of fact, I think if the Depart-
ment of Defense had some type of program — and I do not expect you
to answer here, but if the Department of Defense had some type .of
briefing for Members, I think it would be very helpful so that we could
be informed as to what was going on in that particular area.
Mr. Abshire. Thank you very much, for your words of encour-
agement.
Mr. Hortojst. I am sure you will be carrying it on, because, as I
said. I think you have demonstrated in your Department exemplary
efforts in this desire to inform the legislative branch. Your statement,
I think, reflects the broad scope of the work you are trying to do to
keep the Members of Congress informed.
76-253 — 72 — pt. 8 19
3222
What positive steps do you think might be taken by the Congress
and the Executive branch to improve the legislative and the Executive
communications ?
Mr. Abshire. Well, I have thought about that, and it seems to me
that I might put at the top of my list what I mentioned earlier : more
use of the Secretary in a situation to which all members are invited,
because, again, I think we have the problem which the chairman earlier
identified, that members of the Foreign Relations and the Foreign
Affairs and the Appropriations Committees are very well informed as
the result of the legislation that comes their way, but so frequently
other Members of the Congress and of the Senate are left out.
So, I think that extended use of these full sessions would help a great
deal.
Now, let me say that my job as Assistant Secretary is to keep the
Secretary informed about congressional attitudes, but there is no bet-
ter way for him to get informed than when he is up before 67 senators
or a couple of hundred congressmen.
Secondly, I emphasized in my statement the Foreign Policy Report
of the President and the State Department Foreign Policy Report.
The President's report is more conceptual. Our report gets into policies
towards given areas of the world, and I would hope that as time goes
on that Congress can join in a fuller dialogue based on these reports.
Now, maybe the authorization bill is a way of debating the general
concept of the President's foreign policy and to reveal how the Con-
gress judges it.
Third, I think that in terms of this difficult problem of consultation,
particularly in crisis situations to which the chairman alluded, we are
on record with regard to your bill, on a joint consultative committee
on some t}^pe of joint consultative framework, that we would support
if Congress, in its wisdom, decided to move in that direction. We do
not want to be in the position of suggesting how Congress should or-
ganize itself.
Congressman Zablocki has a bill which would insure that the Presi-
dent report, if possible, beforehand in a crisis situation, and, if not, as
soon as possible thereafter.
I was delighted that we were able to take a favorable position on
this bill after considerable review in the Executive department.
Mr. Horton. I might interrupt you just to thank you for mentioning
the bill which I have introduced to form a Joint National Security
Committee which I do think is an important step. I do not have any
particular pride of authorship, and I would like to see it move for-
ward because I think we ought to have a more broad type of com-
mittee, joint committee, of the House and the Senate, that could meet
regularly and always be available for emergency briefings by the
President, the Secretary of State or Others that are concerned with
emergency problems. I do feel that something like this is very im-
portant with regard to the functions that we are just beginning to
become more aware of; that is, of the congressional concern in this
particular area.
So, I am glad to see that you did include that in your testimony, and,
again, I emphasize that I do not feel that just because I have sug-
gested that certain people be members of that committee, that that
has to be so, that it has to be carried out just that way, because I think
3223
it can be done in different ways. But the concept, I think, is important,
to have a joint committee that will meet regularly, that will be in
existence, that will be available for the consultations between the
executive and the legislative branches, and to, in turn, report to the
legislative branch. I think this would go a long way toward filling
this responsibility of informing Members of Congress, especially in
these emergency situations.
At the present time, as you know, in an emergency situation, it is
pretty much up to the President or the Secretary of Defense or the
Secretary of State as to which Members of Congress they consult with
and how it is done. There is no formalized body, and sometimes it is
done quite informally, and it might even be done by telephone. And
this does not impart knowledge to the other membership in the House
or the Senate, and I think this is one of the problems that we all have.
I harp back again to my own personal experiences with briefings that
you give us each Wednesday. I try to make those as regularly as I can,
because it does give me an opportunity as an individual Member of
the Congress, not sitting on the Foreign Affairs Committee, to be
brought up to date with regard to the matters that are going on in
the world. I realize that you brief us every day, 24 hours a day, but if
you do it on a weekly basis it is of tremendous help to individual
Members of Congress. It is there for the asking if I want it. If I do
not want it, why, then, it is a decision by me not to go and get the
information.
But, beyond these regular briefings, we ought to have some tech-
nique or some procedure or some formalized means whereby we can
have this consultation between the Executive and the legislative. And
I am glad that you did mention that in the course of your prepared
testimony because I think it would be one of the steps that could be
taken that could help to improve this communications problem.
Mr. Chairman, that is all I have.
Mr. Moorhead. Thank you. I want to associate myself with the
remarks of Mr. Horton. I think these Wednesday briefings and other
actions are excellent, and my failure to comment on them should not
be interpreted as being critical. They go back to my first term in the
Congress, when Congressman Lindsay and I approached the State
Department on the matter of briefings. We started them, I think, on
Wednesday afternoons, and found there was too much conflict with
floor debate and votes, and ultimately they were shifted to Wednesday
mornings. I think they have been helpful to us.
We should recognize that briefings — and I am speaking particularly
of other departments — such as the Department of Defense — have been
"selling'' devices. They have a beautiful technique of "snowing" }tou,
and if you do not have access to other information, you are really not
in a very good position to cross-examine and really bring out the issues ;
you are just given one side of the case.
Again, I am not referring particularly to the Department of State,
although there is a tendency there when, you know, there is something
that would lead a Member to be more critical or ask some very difficult
questions. Such information then is not always forthcoming, but I
would do the same thing if I were in your position. That is part of the
special inevitable friction that would be involved between the two
branches of Government.
3224
Mr. Horton. Mr. Chairman, would you yield 1 minute?
I have one other question I want to ask.
Mr. Moorhead. Yes ; Mr. Horton.
Mr. Horton. Mr. Abshire, on page 14 of your testimony, at the top
of the page, it says :
At present, special briefing papers on current developments are prepared period-
ically, usually weekly, for two of the subcommittees. In addition, new arrange-
ments have been made for the Department's Bureau of Intelligence and Research
to make more of its finished intelligence available to Senators, Members of
Congress and committee personnel.
Is that done by way of some publication or newsletter-type arrange-
ment ?
Mr. Abshire. No. We have developed, or are trying to develop, a
better procedure to inform the staffs of the Senate Foreign Relations
and the House Foreign Affairs Committees as to what is available, and
my earlier point is that I think we have got to develop ways of reach-
ing the entire membership on this, but principally we have
Mr. Horton. Do you have a mailing list for this?
Mr. Abshire. No ; we do not have a mailing list.
Mr. Horton. You do not send anything out now ?
Mr. Abshire. No.
Mr. Horton. Well, this briefing paper, how do you handle that?
At the top of page 14 you say "At present, a special briefing paper on
current development is prepared periodically."
Mr. Abshire. These are for two of the Subcommittees of the House
Foreign Affairs Committee, the African Subcommittee and the Near-
East Subcommittee.
Mr. Horton. These are just on the special subjects?
Mr. Abshire. That is right,
Mr. Horton. Well, now, you were talking about some finished intel-
ligence to be made available, but that is not done at the moment ?
Mr. Abshire. We are doing that to the Foreign Relations and For-
eign Affairs Committees.
Mr. Horton. I was just wondering if, maybe, we could get on that
mailing list ? I would like to see that also.
Mr. Abshire. Yes. Yes.
(Subsequently the committee was informed that the Bureau of In-
telligence and Research will provide the subcommittee the same mate-
rial as is now being distributed to the House Foreign Affairs Committee
and the Senate Foreign Relations Committee.)
Mr. Horton. Thank you.
Mr. Moorhead. That question of Mr. Horton's again brings up
something that I do not believe the record is entirely clear on — as to
whether you treat individual Members of the House or Senate the
same as committees or subcommittees of the House or Senate in having
access to information ?
Mr. Abshire. Mr. Chairman, I have to state again that we try to do
all possible for the individual Member.
Second, we recognize the way that Congress has organized itself.
We recognize the important goal of this subcommittee, for example,
and it is inevitable that in dealing with the committee structure that
we become more aware of their needs.
Now, I did allow for some situations — and I do not think we have
encountered many of these in the State Department — where there will
3225
be a committee that has a given jurisdiction. For example, on the 5-year
projections that the Foreign Eelations Committee requested, that was
a committee request.
A great deal of time and effort went into that. I suppose when we
have the request of a committee chairman or the request of a subcom-
mittee chairman, we recognize that the chairman of the committee or
the chairman of the subcommittee speaks for many Members, and
while we put the maximum effort possible into every single congres-
sional request, it is only wise for us to put extra resources of the
Department into preparing things that a committee desires, such as
this testimony that I have worked on all of the Memorial Day weekend.
I would do as much for any Congressman, Mr. Chairman. But I par-
ticularly recognize the importance of this committee, its jurisdiction,
its longtime interest and. therefore, would make an effort there that
would be beyond me in terms of the individual Member when we con-
sider how many Members there are.
Mr. Moorhead. Well, I am not talking about the effort you put into
it. but I am talking about the legal right of access. I do not know
whether there should or should not be a difference, but I am talking
about if there was a document already in existence that you only had
to pull out of the file drawer and turn it over, would you consider the
request of any individual Member of Congress for that document
legally different from a request, let us say, by a vote of the Senate
Foreign Eelations Committee or the House Foreign Affairs
Committee ?
It is not the amount of work involved.
Mr. Abshire. May I turn to my legal adviser, since this is a legal
question ?
Mr. Moorhead. Mr. Salans, we will be glad to have your judgment
on that.
Mr. Salans. Well, Mr. Chairman, it seems to me that in the first
place we do not normally deal with these as legal matters. When a
request comes from a Member of Congress, we try, as Mr. Abshire said,
to meet that request, and we do not view it in the normal way as being
any different than a request from a committee chairman or from a com-
mittee.
Now, I suppose there are ways of analyzing this legally where you
could draw a distinction. For example, a committee has the legal power
to subpena information or a document which an individual Member
of Congress does not have.
So, I think it is possible to analyze this in a legal way so that you
would come to the conclusion that there is a difference. But we are so
seldom dealing with that kind of a situation that, as a practical matter,
as Mr. Abshire says, we deal with each request for information pretty
much on its own merits and without drawing these kinds of
distinctions.
Mr. Abshire. I think, Mr. Chairman, that, again, our final answer
goes back to the Congress on this. What we try to do is to fit into the
congressional scheme and the congressional intent.
Mr. Moorhead. Mr. Abshire, now turning to the so-called doctrine
of executive privilege, on page 6 you state : "Our system works only
when each of the branches acts responsibly and constructively." When
Professor Berger recently testified before this subcommittee, he re-
3220
viewed the history of the Constitution, the Federalist Papers, and con-
cluded that if there is any executive privilege it is not, as you call it,
a constitutional privilege but a matter of comity between the two
branches.
In oher words, when an executive has said, "I do not want to give
you this; this is a private paper," the Congress still would have the
power to insist upon it. This would ultimately be through the power of
impeachment if necessary, but, as a mute matter of comity between the
branches we have not pushed our ultimate privilege rights. Similarly,
there may be some papers in the Congress that the courts, for example,
demand of us. We preserve our right to refuse it, and, naturally when
a subpena is issued to the Clerk of the House we usually pass a resolu-
tion saying it is all right for him to appear as a matter of comity. We
go along with this. I think this explains the history of executive privi-
lege much, much more understandably than your statements, which
seem to be that there is a constitutional basis for this by comparing the
Articles of the Federation with the Constitution. Professor Berger
pointed out that in the act of September 2, 1789, creating the Treasury
Department, it made it its duty for the Secretary to give information
to Congress respecting all matters which pertain to his office. And in
1854, the Attorney General advised the President — and I will submit
the citations for the record — that by legal implication every branch of
the executive department is under the same duty as that of the
Treasury. (See p. 3120 of these hearings.)
And title 5, section 2954 of the United States Code gives any seven
members of the House Government Operations Committee or five
members of the Senate Government Operations Committee the right
to request and receive from any executive agency any information
relating to the jurisdiction of these committees.
Now, I think that on the basis of comity we should allow the
President some latitude in refusing requests of the Congress when, in
his judgment, it would not be in the public interest, and that the Con-
gress should continue as it has in the past to, in general, accede to
that.
There was an exchange of letters between the former chairman of
this subcommittee, Congressman Moss, and President Nixon, as there
was with Presidents Johnson and Kennedy, to the effect that the
President would assert this privilege only personally and in specific
cases.
Now, on page 19, you state that the President's action on March 15,
with respect to the Cambodia field submission, was of a limited
nature and "did not constitute a blanket delegation of authority to his
subordinates to claim this privilege."
But Deputy Comptroller General Keller pointed out in his testi-
mony before this subcommittee that the May 8 memorandum of the
Under Secretary of State actually broadened the field of applicability
of the President's action.
Mr. Keller said :
On May 8, 1072. the Under Secretary of State issued a memorandum to all
.assistant administrators and office heads, and it said: 'It will be noted that the
President's Directive is not strictly limited to Country Program Memoranda
and Country Field Submissions, but applies also to other, similar internal work-
ing documents in the foreign assistance and international information fields
which would disclose tentative planning data and which are not approved posi-
3227
tions. 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 consultation with the Office of
the Legal Adviser.
So, the one interpretation of the President's directive, the one by
the Under Secretary, seems to go quite a way in broadening the field
of applicability beyond the specific documents requested in our Cam-
bodian field submission request. Is this not a very broad directive,
much broader than is contemplated in the specific assertion by the
President on any request ?
Mr. Abshire. Mr. Chairman, the President has made it very clear
that he will not delegate this authority, and we, in the executive
branch, have been so instructed. So, there is no question in our minds
that in another case that we must go back, where there is a question
of executive privilege — we must go back the same route, the same
decisionmaking route, and that any decision on withholding or non-
disclosure must be made by the President.
Would you like to comment ?
Mr. Salans. I think you are quite right, Mr. Chairman, in reading
the language of the March 15 Presidential decision that the language
that is used and that is quoted by Mr. Abshire in his statement on
page 19 is worded more broadly than simply the Country Program
Memoranda and the Country Field Submissions that were requested.
On the other hand, as Mr. Abshire says, any decision to withhold
any future documents that are requested, even if it falls within this
category, would have to be made in accordance with the President's
memorandum of March 24, 1969. In other words, we would have to go
back to the Justice Department, and the Justice Department, in turn,
would have to submit a memorandum to the White House, and this
would have to be a decision of the President.
So, in that sense, the President's decision is not broader. The same
procedure applies; the same limitations. And the Under Secretary's
memorandum of May 8 was not intended to change that procedure in
any way.
Mr. Moorhead. The memorandum in the AID office says :
In order to carry out the President's Directive, AID Country Field Submission
should not be disclosed to representatives of the Congress or the General Account-
ing Office. Likewise, disclosure should not be made of any documents from an AID
Assistant Administrator, AID office head or AID Mission Director to higher au-
thority containing recommendations or planning data not approved by the execu-
tive branch concerning overall future budget levels for any fiscal year for any
category of assistance for any country.
Now, that is a pretty broad directive, is it not ?
Mr. Saeans. Well, I cannot speak for AID but again I would as-
sume in the case of AID as well, being part of the executive branch,
that if there were future requests for documents or information which
seemed to be covered by the President's decision of March, they would
go through the standard process which is required under the Presi-
dent's Directive of March of 1969. That is what we understand the
instructions of the President to be.
Mr. Moorhead. So, if we went about asking for Country Field Sub-
missions, country by country, this process would have to be followed ?
Mr. Salans. I assume so. Now, since the President's Directive is
worded in a way that says that documents such as this should not be
3228
submitted, I would think that one could predict fairly clearly in ad-
vance that if you asked for another set study that the answer would be
the same.
But, still, we would have to go back through that process if you
wished to make such a request.
Mr. Moorhead. Well, I can understand Cambodia being very con-
troversial, but I would think there may be other Country Field Sub-
missions, of other countries, which are not controversial that should be
made readily available to the Congress. And, as a matter of fact, I
think the Cambodian one should also have been. But we should test
this interpretation, taking the least controversial country first, to see
whether or not we cannot expand our right of inquiry.
Mr. Horton would like to hear from Mr. Ablard.
Would it be possible for you to stand by just a few minutes to see if
there are any other questions we would like to ask ?
Mr. Abshire. Oh, surely.
Mr. Horton. Are you finished ? Go ahead.
Mr. Moorhead. I do not know. I think we have almost finished ; I
think we have covered most of the questions, but we have some ques-
tions dealing with Congressman Wolff's tape, and so forth.
Mr. Horton. Well, I would like to hear that. I would like to hear
the questions about that.
Mr. Abshire. We will be happy to take those now.
Mr. Moorhead. All right.
Mr. Phillips ?
Mr. Phillips. Thank you, Mr. Chairman.
As you know, Mr._ Abshire, on May 15, Congressman Wolff testified
before the subcommittee and raised three questions of access that con-
cern him a great deal. You are probably familiar with his testimony,
are you not ?
Mr. Abshire. Yes, I am.
Mr. Phillips. Rather than go through it in detail, then, the question
of the tapes which were confiscated, and the fact that the tape recorder
is the property of the U.S. Congress, I would like to know what legal
authorty you have: No. 1, to confiscate it, and No. 2, to handle the
transcript as you did in this case, or at least Congressman Wolff
testified you did ?
Mr. Abshire. I think this has been a problem of communication, and
when there is a problem of communication, as a congressional rela-
tions man, I will start out and say that it must have been our failure to
communicate properly. But we do not understand the facts in the case
as the Congressman does.
Ambassador Handley, who I think has done a very distinguished
job in Turkey in an area of diplomacy that is of enormous importance
to all of us in the international control of narcotics, gave a very
forthright briefing and did not, regardless of what the Congressman
thinks — he did not, as he has told us, know that he was being taped.
So, again, this was the first misunderstanding.
But I think that one can understand the Ambassador's concern
when he was very forthright, and then learned that he had been taped.
Now, it was the judgment of the Ambassador, the man in the field
dealing with some very delicate situations, that the material on the
tape, if in some way it were released, might impair him in his mission.
3229
And when I mention "released," I am not talking about Congressman
"Wolff intentionally releasing it. But the Ambassador, naturally, is
concerned about the security of what he said. Therefore, the Ambas-
sador was most anxious that we show the Congressman the parts of this
tape, the parts of this briefing, that were considered by the concerned
bureau to be sensitive and that would hurt if made public.
Xow, our objective was to point out these sections of the tape to
Congressman Wolff. We did not deny him the tape, I realize there is a
misunderstanding about this, but Deputy Assistant Secretary of State
Colgate Prentice has written Congressman Wolff on the matter, taking
up these issues in detail. We do not feel that the tape was denied to
him. I understand his concern and can appreciate his concern that
such a long time was taken in transcribing the tape. I think he felt the
tape was being denied to him because of that delay.
They had a very difficult time transcribing it. They had to get some-
body who recognized the voices. It was a difficult tape to follow. When
Mr. Prentice and the Turkish desk officer took the transcript to the
Congressman they offered to give him the tape if he wanted it. Their
understanding was that, since he had the full transcript, he did not
want the tape itself.
Xow, I want to make it clear that at no time do we feel that the
tape was denied to him. We felt that he understood our concern and
the procedure that was being followed. Obviously he did not.
Mr. Phillips. Well, there are a couple of basic facts here that seem
to be in dispute.
Congressman Wolff testified that prior to the briefing in Istanbul —
and this is a quote :
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.
Xow, Xo. 1 : Have you ascertained whether or not anyone on the
Embassy staff gave Congressman Wolff permission to use the tape
recorder ?
Mr. AnsHiRE. We went out a second time to the Embassy on that
question. I can only repeat what I have said: that the response we
got was that the permission had not been given, that the Ambassador
was unaware that he was being taped.
Xow, Congressman Wolff says that the recorder was on the table,
and I think that he cannot understand why the Ambassador would
not have realized that that was a tape recorder and that he was being
taped. But there is a different view of the facts.
But to make certain, we went out a second time.
Mr. Phillips. Would you not think that it would be likely that if an
Embassy staff member did give permission and then a "flap" like this
developed, that he could suddenly lose his memory ?
Mr. Abshire. Mr. Phillips -
Mr. Phillips. Let me ask you another question. Mr. Abshire.
As we understood Mr. Wolff's testimony, he placed the tape re-
corder and the tape in a diplomatic pouch which was sealed to return
to the United States which, to me, indicated good faith, that he prob-
ably did feel that he had such permission. Otherwise, he could have put
it in his own brief case and brought it back with him. But he put it in
the pouch. It was sealed.
3230
What gave the State Department the right to open that package
which was addressed to the Congressman personally ?
Is this a usual practice ?
Mr. Abshire. I would have to check further into that, into the
question on that.
Mr. Phillips. Could you supply an answer to that for the record ?
Mr. Abshire. Yes, I can. This is the first time that that particular
question has come to me.
(The information follows:)
The State Department does not open congressional mail. In the case of Rep-
resentative Wolff's tape, it was placed in the diplomatic pouch along with other
diplomatic mail and sent to the Department's mail room where diplomatic pouches
are received and opened. The tape was sent in the same way it was handed over
to Representative Wolff in Istanbul ; that is, without any outer wrapping. The
Consulate General in Istanbul forwarded the tape to the Turkish desk with
instructions to notify Representative Wolff's office of its arrival. Prior to receiv-
ing the tape the Department was informed by Ambassador Handley that the
taping of his classified briefing had taken place without his knowledge. On arrival
of the tape, the State Department's Office of Congressional Relations contacted
Representative Wolff. The Turkish desk undertook to transcribe the tape so
that the necessary security classification could be noted on appropriate sections
of the transcript. Congressman Wolff agreed to this procedure. Following this, the
tape was transcribed and the written transcript was given to Representative
Wolff. On several occasions State Department officers have indicated a willingness
to furnish the tape to Representative Wolff. Upon learning recently of his desire
to have the tape, we have returned it to him.
Mr. Phillips. He also testified: "My very own questions have been
classified secret and the Department even censored a four-letter word
uttered by the Ambassador."
Is that a correct statement ?
Mr. Abshire. I am not
Mr. Horton. Mr. Chairman, I do not think it is fair to ask this
witness, who was not present, about this matter.
Mr. Phillips. But he has seen the transcript,
Mr. Horton. But the substances of the question, it seems to me, to
this witness, is directed to his own personal knowledge. He certainly
was not present and he has no personal knowledge.
You were not present during any of this, were you ?
Mr. Abshire. No ; I was not present.
Mr. Phillips. Have you seen the transcript ?
Mr. Abshire. I have looked at parts of the transcript, and, Mr.
Phillips, it seems to me — and I am not an expert in these matters—
but it seems to me that the Ambassador should have been concerned
about the tape, about that tape becoming available to the public, and
I think Congressman Wolff shares the same concern. I do not think
there is any dispute on that.
Now, I am not in a position to argue about every line that was
classified or not. But I think that both" the Congressman and the Am-
bassador agree that there were sensitive areas in the tape.
Mr. Phillips. I think — —
Mr. Mooriiead. If I may interrupt you for just a minute, I think
that the issue here Congressman Wolff' is complaining about is that —
and this committee is studying the whole question of classifica-
tion— that his Questions were classified as "secret," I would go along
with the classification of the Ambassador's answers, but he had no
special knowledge that was of a classified nature. He was just asking
3231
the questions of the Ambassador, and these questions were classified.
This was one of his complaints, and Mr. Abshire has seen the tran-
script, and that the questions of the Congressman were classified. One
of the things we are concerned about is this practice of overclassifica-
tion, and it seems to me that unless the questions of the Congressman
had special secret information, knowledge which was revealed in his
questions, I can see no classification basis for them.
Mr. Horton. Well, Mr. Chairman, I would disagree with that,
because I think that there are instances in which a question can be
framed which is based upon classified information and which might
itself have to be classified as secret. The question following secret
information could contain some of that secret information and. there-
fore, would also have to be classified. I do not think it is beyond the
realm of possibility that a question could be classified as secret espe-
cially- if the information preceding it was secret.
Mr. Moorhead. Well, I will say to the gentleman
Mr. HoRTOisr. I do not know. I have not seen the transcript or any-
thing else. But. just on the face of it, I would not say that because
the question was asked and was classified that, therefore, it was im-
properly classified. I would have to see the question and know the
information about it, first.
Mr. Moorhead. Well, I think you would be astounded when you do
see it.
Mr. Hortox. That may be.
Mr. Moorhead. The classification of certain of the questions, and
the transcript, as I recall seeing it, has certain parts classified and
certain parts not classified.
Mr. Abshire. That is right.
Mr. Moorhead. And it was in the questions of Mr. Wolff that
were classified that it seemed to me were another example of over-
classification.
Mr. Abshire. Well, Mr. Chairman
Mr. Moorhead. Yes, certainly, Mr. Abshire.
Mr. Abshire. I like, always, to look for resolutions to problems. I
am sorry that at the time the transcript was delivered to Congressman
Wolff that he did not have the chance to study it, while my repre-
sentatives were there. I am sorry that his concern on overcl a ssifi cation
of the tape did not become better known, because if he feels that way,
there is no reason why we should not take another look at the tape.
We do this with congressional committees when, in the declassification
of reports, we have to get experts together on some of these things,
and they spend hours going over them. But, in any such case, in dealing
with a Member of Congress, if his judgment is that there is over-
classification, we are, and should be, most happy to go back and re-
view it. I would be delighted to have my office act as an umpire there.
I know that the area people, naturally, are the people that are most
concerned about the sensitivity. And I know that we are concerned
about the Congress having more information. Therefore, we would be
most happy to take another look at the taoe, because I think that that
subcommittee, the Rosenthal subcommittee, was engaged in a most
significant trip. I am delighted that they had the opportunity to meet
witli a man whom I consider one of our most able Ambassadors, who
has been a real leader in making progress in this field of international
3232
narcotics control. As much information as we can get out about what
he has done and what he is trying to do about narcotics control is to
our advantage and to the advantage of the Congress on an issue of
concern to an enormous number of Members of Congress.
Mr. Moorhead. Well, we will convey your words to Congressman
Wolff.
Mr. Phillips. Let me move on to the second issue raised by Con-
gressman Wolff in his testimony involving a request that he made for
the Secretary of State to furnish the Committee on Foreign Affairs
all communications regarding the Vietnamese elections — that was last
fall — including all documents relative to the conduct and use of
U.S. -financed public opinion surveys.
Pie testified that he received a letter from you, Mr. Abshire, on
October 8, 1971, stating that "the U.S. Information Agency has in-
formed us that the Joint U.S. Public Affairs Office, JUSPAO, in
Vietnam, has not conducted any polls or surveys, formal or informal,
concerning or involving the Vietnamese election." There was a col-
loquy during our earlier hearing on this same subject and I pointed
out that on July 25, 1971, these same polls in question had been fur-
nished to this subcommittee. There had been discussion of the polls,
the types of questions asked, and so forth. They were furnished to the
subcommittee by USIA, by Mr. Ablard, on July 29, 1971. 1 have them
here. There are a great many questions involving election attitudes of
the Vietnamese electorate, candidates, and so forth.
What we are trying to find out is why your office did not know that
USIA had already made these surveys available to us, had acknowl-
edged their existence, when you were telling Foreign Affairs Com-
mittee Chairman Morgan that there were no such surveys ?
Shortly thereafter, a week or two later, you wrote another letter in
which you acknowledged that there were, in fact, polls made up until
February of 1971 ; but the thing that puzzles us is why your office was
in the dark over all of these months when it was a matter of public
record?
Mr. Abshire. Our letter of October 8 was in error, and it was I
believe — I am not certain of the date, but I think it was about October
15 that we were informed about this other poll by USIA. I believe it
was the following day, on October 16, that we wrote making the cor-
rection, and I believe that it was on October 20 that Congressman
Wolff spoke about the poll on the floor. "What I am saying is that our
correction came as the result of USIA so informing us, and before
Congressman Wolff had spoken on the floor. I just wanted to get
that
Mr. Phillips. Do 3^ou recall the elate of the Vietnam election? It was
October 2, 1971. So, the point is that this information was kept from
him until after the election, despite the fact that this information had
been available and made available to this committee 3 months before.
I think that is the point that he is trying to make.
I have no further questions.
Mr. Moorhead. Mr. Copenhaver?
Mr. Copenhaver. No.
Mr. Moorhead. Mr. Cornish ?
Mr. Cornish. Yes. Thank you, Mr. Chairman.
3233
Mr. Abshire, Mr. Salans might want to give you a hand on this, but,
as I read the President's instructions which he issued on March 15,
there are two criteria in his order. One is that this must be tentative
planning data on foreign assistance programs or international foreign
activities, and the second criterion is that it must be an unapproved
position. Do you agree with that interpretation, that there must be
these two elements ?
Mr. Abshire. I think maybe there have been three elements, internal
working documents, tentative planning data on future years, and not
approved executive branch position.
Mr. Cornish. But those would be three separate elements ?
Mr. Abshire. Those are the three elements, I think, that have led
the President to determine that disclosure would not be in the public
interest, because this involves a decisionmaking process.
Mr. Cornish. All right, Now, that leads me to this : Do you have any
country field submissions which are approved positions at the present
time for fiscal 1973 ?
Mr. Abshire. I would have to check that. I would presume that we
do not, but I would have to check that, . .
Mr. Cornish. Well, I cannot understand that answer, because is it
not a part and parcel of the program which was submitted in the
foreign aid bill earlier this year ?
Mr. Abshire. Field recommendations are an input out of which
comes the foreign aid program. I think this would not mean that a
given field submission at a given point becomes approved. Now, I
would have to check — I wantTto check myself, but what I am saving
is that the overall program is approved, and that this is an input in
the process of approval. It is a raw piece of the process of approval.
Mr. Cornish. I know, but one must assume that when you go before
the Foreign Affairs Committee for your authorization that you do
have an approved policy position.
Mr. Abshire. That is right, and it is contained
Mr. Cornish. Which is based on something.
Mr. Abshire. It is contained in the presentation documents that are
printed up and made available to the members of the committee.
Mr. Cornish. Yes; and you have to respond to questions of the mem-
bers on this, and so forth ?
Mr. Abshire. That is right, but it is in a different form. It is not
m a
Mr. Cornish. Well, it may be an amended country field submission,
would you agree, to bring it into line with an approved position ?
Mr. Abshire. But it is a different document. It is in a different form.
Now, your question is : How much does that form resemble the earlier
recommendation ?
Mr. Cornish. Well, it might be the original country field submission
plus other documents or amendments, could that not be true ?
Mr. Abshire. I would describe it that way, yes.
Mr. Cornish. Do vou now have such a series of documents for Cam-
bodia for fiscal 1973 ?
Mr. Abshire. I would have to furnish you an answer.
Mr. Cornish. Mr. Chairman, I think that it would be most appro-
priate— if they do now have a series of approved documents, approved
3234
positions for Cambodia — that we renew our request for the Cambodian
field submission at this time.
Mr. M ookhead. I think, first, we will have to get an answer from Mr.
Abshire as to whether there is such a document.
Mr. Abshire. Yes.
Mr. Mookhead. And if there is, I think Ave could renew it, renew
it as falling outside the President's memorandums.
Mr. Abshire. We do have the presentation document, but I will
furnish you the answer.
(The information follows:)
The economic assistance program for Cambodia contained in the fiscal year
1973 presentation of the President's fiscal year 1973 budget request for security
supporting assistance to the Congress reflects current executive branch thinking,
and the current position within the executive branch. Until final appropriation
action by the Congress, and subsequent notification to the Congress by the execu-
tive branch of the fiscal year 1973 security assistance allocations pursuant to
section 653 of the Foreign Assistance Act, the proposed program remains valid.
However, if unforeseen events, for example, unusual military actions or adverse
economic developments were to occur, the program presented to the Congress
might have to be reevaluated on the basis of the new situation.
Mr. Moorhead. Thank you, Mr. Abshire.
Mr. Cornish. Now, a request is made to the Justice Department,
when a question arises as to the applicability of possible executive priv-
ilege. Who makes this decision, the Secretary of State?
Mr. Abshire. The decision as to whether it goes to the Justice
Department?
Mr. Cornish. Yes.
Mr. Abshire. As to whether we are dealing in a case that possibly
could involve executive privilege ?
Mr. Cornish. That is correct. Yes.
Mr. Abshire. It would ultimately be the Secretary of State.
Mr. Cornish. Do you happen to know in the case o"f the Cambodian
field submissions whether legal counsel within the Department of
State or the Agency for International Development recommended
against such an action ?
Mr. Abshire. Mr. Cornish, as I said earlier about my own recom-
mendation
Mr. Cornish. I understand that perhaps Congress has a strong ad-
vocate in you, but I am also wondering whether we also have some
advocates in the legal department of the Department of State and
AID, and I think we do.
Mr. Abshire. I said that I was not in a position to go into the recom-
mendations that were made, for the reasons I have given in my
testimony.
Mr. Cornish. Let me rephrase it then.
Is it possible that such a matter could be brought to the attention of
the Justice Department against the advice of the Congressional
Liaison Office, and against the advice of the Legal Counsel of the De-
partment and the Agency for International Development?
Mr. Abshire. I would say it is possible, because we could be dealing
with a case where even the Secretary, in his judgment, believes that
this should not go to executive privilege. But he may believe that he
has an obligation to obtain an opinion from the Justice Department.
3235
The fact that we are going through the question of executive privi-
lege does not mean that it is done with the predetermination that it
necessarily should go that way.
Do you want to add further on that, or clarify or comment on that?
Mr. Salans. I would be happy to say as a deputy legal adviser that
you do have some strong advocates in the legal adviser's office. That is
not to say that in every issue that comes up we necessarily share your
views.
Mr. Cornish. I understand that your views do not always prevail,
and the reason I bring this up, gentlemen, is that I have here in my
hand a copy of the fiscal 1973 country field submission for Laos. And
this was submitted to the subcommittee on September 13, 1971, and I
was wondering what happened in the Department of State and the
Agency for International Development between September 13, 1971,
when this very sensitive document was made available to the sub-
committee, and in February, when we requested the Cambodian field
submission.
What happened during that period of a few months when they were
made available — and this contains all of the sensitive material of
which you spoke, the advice, the candor of the officials and what have
you, and it is probably a more sensitive program than the Cambodian
program, but yet that was presented. And I wonder : Was there some
basic decision made between September 13 and February that changed
that whole picture ?
Mr. Abshire. I would comment that I do think that the case that
evolved with the Senate Committee on Foreign Relations on the 5-year
projections resulted in more executive branch attention to this question
of the executive making available internal working documents that
involved tentative planning data that were not approved executive
branch positions. That decision was made on August 30, 1971.
Mr. Cornish. Well, I would hope that any friction which you might
have with the Senate Foreign Relations Committee certainly would
not enter into any decisions affecting the provision of documents to a
House committee.
Mr. Abshire. I might say that I did not mean this in the sense that
you indicate there. The decision on executive privilege in that case did
not grow out of friction, it grew out of: — there may have been some
heat — but it
Air. Cornish. There was something there that was burning, because
we could smell the smoke over here.
Mr. Abshire. But it grew out of the concern of the executive branch
about making available to the Congress tentative planning data. And
if I may be practical on this for a minute, the documents that the
Senate Foreign Relations Committee was interested in, a joint State-
Defense memorandum on 5-year projections, had not been cleared off
by either of the Secretaries, and that document had these projections
in it.
Well, there were concerns about making that available, about such
a document, since it did not represent a cleared executive branch posi-
tion. I can imagine the problem of a submission where the estimator
had put a country on the high side. Release of that submission could
have tended, by giving a standing to that document that was never
3236
intended, to influence both the bureaucracy and, conceivably, the
Congress in a direction that further consideration -within the execu-
tive branch would have concluded unwise.
Mr. Cornish. May I just
Mr. Moorhead. We have to move on.
Mr. Cornish. Just one more, Mr. Chairman.
Mr. Moorhead. Very briefly.
Mr. Cornish. Yes, very brief.
Now, that decision was made on August 30, 1971.
The document on Laos was provided to us on September 13, 1971.
That is my only comment, Mr. Chairman.
Mr. Moorhead. Thank you very much, Mr. Abshire. There may
be some other questions that the subcommittee would like to submit
to you in writing. I presume that you would be willing to answer
them ?
Mr. Abshire. Yes. And let me say, Mr. Chairman, it has been a
pleasure to appear before this subcommittee this morning.
Mr. Moorhead. Well, Mr. Abshire, it is our pleasure ; and your state-
ment was very forthright, and you have been a great deal of help to
us, and we think that you are doing a great job down there in keep-
ing the friction between the Congress and the departments to a mini-
mum. Thank you verv much.
Mr. Ablard?
STATEMENT OF CHARLES D. ABLARD, GENERAL COUNSEL AND
CONGRESSIONAL LIASON, U.S. INFORMATION AGENCY; ACCOM-
PANIED BY LAWRENCE HALL, CHIEF OF RESEARCH SERVICE,
USIA
Mr. Moorhead. Mr. Ablard, is there any way that you can sum-
marize your statement?
We have a time problem, and if you could read the highlights of
your statement, we would then submit the full statement for the
record.
Mr. Ablard. I would be happy to do so, Mr. Chairman.
Mr. Moorhead. Thank you. Please introduce your associate
Mr. Ablard. I am accompanied bv Mr. Lawrence Hall, who is the
Chief of the Research Service of the USIA.
We appreciate the opportunity of appearing today to testify before
you.
I might limit my testimony to elaborate on a few USIA practices
and procedures that are a bit different from the State Department's.
We basically follow the same pattern, as Mr. Abshire has indicated.
We believe very strongly that the President's memorandum of March
of 1969 was and is the guiding principle we are to follow in our deal-
ings with the Congress, and we have attempted to follow that to the
letter.
Within USIA the Agency is maintaining its contacts with the Con-
gress through my office, which is a combination of the Office of the
General Counsel" as well as the congressional liaison. In general, we
follow the practice that any request of a Member of Congress must be
responded to within 3 days. When we find that is difficult to do, we
3237
acknowledge it and talk to the office or tell them that the material is on
the way.
In addition to responding to specific requests, we provide Congress
routinely with a semiannual report on the operations of the Agency.
I think that is probably twice as much as most agencies provide since,
I think, most of them provide only an annual report. We also provide
copies of the agency in brief, which is a very detailed analysis of how
many people we have and where they are located.
As the result of the Foreign Aid Authorization Act, Public Law
92-226, we are required, as is State, beginning with fiscal year 1973, to
obtain an authorization before we receive appropriations. We have
spent a considerable amount of time before the Senate Foreign Rela-
tions Committee and the House Foreign Affairs Committee this year
in providing detailed information about every conceivable aspect of
the operations of the Agency in the over 100 countries where we have
posts. And we have testified before this committee and others. I think
that you heard testimony on our operations in Vietnam, Laos, and
Cambodia in July of 1971.
Of course, we are subject to GAO audits and studies, and we believe
that we have a very good relationship with the General Accounting
Office. We have formalized it to a degree and have a specific office
within the Agency that has responsibility for all contacts with GAO,
and we attempt to make certain that GAO is given access to all of the
materials that they regularly require in doing their audits. I think
our record over the years has been excellent.
The only limitation, of course, is the one that you discussed with
the State Department witnesses on executive privilege. On March 15
of this year, as you know, the President invoked executive privilege in
connection with the request of the Senate Foreign Relations Committee
for our county program memoranda. These were tentative planning
documents that did not reflect administration policy and to disclose
them would have muted the preliminary exchanges of views before
final decisions could be made.
To the best of my knowledge, this was the first time that the Agency
materials had been denied to a congressional committee. In the past,
such requests which we thought should not have been honored have
always been worked out through some accommodation with the re-
questing committee. In this instance, the accommodations failed, and
the Senate Foreign Relations Committee insisted on full compliance
with its demands, and the President took the step of invoking the
privilege.
I would like to comment on one Agency product — and this is why I
have Mr. Hall with me — in which I know your committee has been
interested, and that is public opinion polls.
In the past, these have created some difficulties, primarily through
the few occasions when they have been released prematurely. They are
a necessary management tool for USIA, but, as you recall, in I960,
one of them at least became the object of some controyers3T in the 1960
presidential election. After a series of meetings and negotiations be-
tween the Director of the Agency, Edward R. Murrow. and your dis-
tinguished predecessor. Congressman Moss, we arrived at an agreement
whereby the polls could be made available to this subcommittee and to
other responsible subcommittees of the Congress, and through a mech-
72-253 — 72 — pt. 8 20
3238
o.nism which we agreed to whereby the ranking minority member and
the chairman would be provided access to these polls. It had the effect,
I think, of freeing up the polls for congressional oversight while at
the same time preserving the security classification on them. We have
continued to operate on the basis of this understanding, and we had
discussions, as you will recall, in July of 1971, with you, Mr. Chairman,
and we have continued to operate on the basic premises of that under-
standing since that time. We believe that this has been most satisfac-
tory, and we hope that it has been satisfactory to the Congress.
I would like to comment on some troublesome problems that we have
with the Senate bill that is pending in the Senate. Our authorization
bill, as it affects release of USIA materials, is I think, in view of the
history of this distinguished subcommittee on the subject of freedom
of information, a matter that I wanted to bring to your attention. I will
not elaborate on it here today, but it is covered in my testimony if
there are any questions to be asked on it.
Basically, the problem is that the amendment which the Senate For-
eign Relations Committee has reported, and which is still in the bill,
totally restricts the availability to the American public of all of our
media products and USIA materials. This would apply, for instance,
to the public opinion polls which are now available in some 45 aca-
demic institutions in the United States. It is my interpretation that we
would have to cut this off if this provision became law.
There is also the problem that Members of Congress and the press
have the right of easy access to our materials. We have always assumed
that the Congress, both committees and Members, would use judgment
in how these materials would be used, that the Agency does not want
to be in the position of having to police a Member of Congress as to
how he uses the materials. We know, as a practical matter, that when
we have a request from a member oftentimes this is a request from a
constituent, and we frankly do not want to be in the position — and I
do not think Congress wants us to be in the position- — where we are
trying to tell you what to do with that product after you receive it
from us.
Mr. Chairman, I appreciate the opportunity of appearing to testify
before this distinguished subcommittee with whom we have had very
excellent relations in the past, and I will be happy to try to answer
any questions that you may have.
Mr. Moorhead. Thank you, Mr. Ablard. That was a very excellent
summary of an excellent statement, which without objection, will be
printed in the record in full.
(Mr. Ablard's prepared statement follows:)
Prepared Statement of Charles D. Ablard, General Counsel and
Congressional Liaison, U.S. Information Agency
Mr. Chairman and members of the subcommittee, I appreciate the opportunity
to appear before you today to discuss the policies, programs and guidelines em-
ployed by the U.S. Information Agency for requests for information from the
Congress. The central principle that we follow was announced by the President
in March of 1969, shortly after he took office when, in a memorandum to all
Executive Departments and Agencies, he outlined a procedure governing com-
pliance with congressional demands for information. The first sentence of that
memorandum stated that : "The policy of this Administration is to comply to the
fullest extent possible with congressional requests for information." Our Agency
has attempted to do this.
3239
Within the Agency the general responsibility for coordinating all contacts with
the Congress and for complying with congressional requests for information
is assigned to the Office of the General Counsel. My office thus not only acts as
house counsel on all legal problems for the Agency but also serves as liaison
with the Congress. The single exception is that the Office of Administration is the
primary contact point with the Congress on appropriation and budget matters.
The general rule specified in our procedures is that congressional requests for
information must be honored, if at all possible, within 3 days. Whenever we
find it impossible to comply with that requirement, we promptly acknowledge the
request and respond more fully as the information is obtained. This is especially
true when information from overseas posts is essential to a proper response.
In addition to responding to specific requests from the Congress, there is an
annual flow of information to the Congress. Under section 1008 of Public Law 402
of the 80th Congress (22 U.S.C. 1439) the Director submits semiannually to the
Congress a report on the operations of the Agency. Copies of the "Agency in
Brief," a publication describing the broad operations of the Agency and its several
elements are also provided to Members of the Congress. Moreover, in connection
with the appropriations process, detailed budget information and data on our
operations at home and abroad are provided.
As a result of an amendment to the Foreign Aid Authorization Act (Public
Law 02-226), USIA was required, beginning with fiscal year 1973, to obtain an
annual authorization before it may receive appropriations. The Agency testified
at hearings before both the Committees on Foreign Relations and Foreign Affairs
providing large amounts of detailed information on every aspect of its operations.
My office provides copies of publications and articles to individual members
where they coincide with their areas of interest. Finally, Agency officials have
been available upon request to testify, and have often testified, before com-
mittees of Congress, including this subcommittee, which heard testimony in
July 1971 on our operations in Vietnam. Laos, and Cambodia.
Agency operations are subject to reviews, audits, and studies by the General
Accounting Office, made upon GAO initiative or at the request of the Congress.
Requests by the GAO for specific information on various Agency activities may
also be made. The Agency makes available for examination all information and
records required by the General Accounting Office unless disclosure would violate
the executive privilege directive of the President or government-wide statutory or
regulatory restrictions, such as apply to certain medical and personnel infor-
mation.
Over the years, we believe that we have established excellent relationships with
the various General Accounting Office representatives with whom we have fre-
quent contact, and that they are understanding of any restraints placed on the
Agency in supplying data. The Agency has designated a liaison officer for General
Accounting Office matters, located in our Office of Administration, for the purpose
of providing the GAO representatives a central point of contact on requests for
Agency data and documents and for facilitating the arrangements for audits,
studies, and reviews of Agency activities.
The only limitation on our ability to supply information to the Congress is the
traditional one of executive privilege on matters which the President directs that
we not disclose. On March 15, 1972, the President invoked executive privilege in
connection with a request from the Senate Foreign Relations Committee for our
country program memoranda and planning papers on the grounds that these
were tentative planning documents not reflecting administration policy and that
to disclose them would mute preliminary exchanges of views before final decisions
could be made by agency heads and the President. This, to the best of my knowl-
edge, was the first time agency materials had been denied to a congressional
committee. In the past, requests have been made which the Agency thought should
not be honored but, after discussions with the committees concerned, satisfactory
accommodations were worked out. In this instance, efforts at accommodation
failed and, when the Senate Foreign Relations Committee insisted upon full
compliance with its demand for the production of the documents, the President
took the step of invoking executive privilege.
I would like to comment on one Agency product, public opinion polls, that, in
the past, have created certain problems which were eventually resolved through
an unusual working agreement between this subcommittee and the Agency. As
your subcommittee knows, the Agency has for years used public opinion polls for
measuring the foreign reactions to U.S. policies as a oasis for programing deci-
sions. They are a necessary management tool for USIA, but subject to misuse
3243
If prematurely released. During the 1960 presidential campaign, one of the
Agency's polls about the prestige of the United States in foreign countries became
a central issue. Afterward, considerable concern was expressed by Members of
the Congress and others about the use, or misuse, of these polls for domestic
political purposes.
After a series of meetings and negotiations, the Director of the Agency,
Edward R. Murrow, in 1963, entered into an understanding with the chairman
of this subcommittee. Congressman John Moss, which was designed to guarantee
access by the Congress to these polls and, at the same time, prevent their use
for the domestic political purposes of either party. The broad outlines of the
agreement provided that the polls would be made available upon request to the
C< digress on a classified basis and that the classification would be respected in
that the results of the polls would not be made public nor would they be made
part of any official congressional records. The agreement further provided for
their declassification after 1 or 2 years unless the interests of national security
required the retention of the classifications. Our declassified surveys are made
available to 45 academic repositories in the United States. We continue to operate
on the basis of the understanding and make available public opinion surveys on
a classified basis on request, to committees of Congress as we indicated we would
in July 1971 in discussions with you, Mr. Chairman.
I am pleased to report that operations under this agreement have been most
satisfactory to the Agency and, we hope, to the Congress. Since 1963 the only
instance where a portion of one of our polls was made public concerned a survey
made after the Cambodian incursion but before the withdrawal of troops from
Cambodia. While this disclosure was, in my view, most unfortunate, it did not
result from the established procedures between the Agency and your sub-
committee.
Since the purpose of these hearings is to discuss the availability of information
to the Congress, I would like to invite the subcommittee's attention to what I
consider to be the unfortunate and troublesome ramifications of legislation
pending before the Senate in the Foreign Relations Authorization Act of 1972,
S. 3526. I refer specifically to section 204 which provides a blanket prohibition
on public distribution or availability of any USIA materials. This would appear
to prevent our making the public opinion polls available to the above-mentioned
academic institutions. The section retains the requirement of section 501 of
Public Law 402 of the 80th Congress that our materials be made available for
inspection upon request of representatives of the media or Members of Congress.
Moreover, the Senate Foreign Relations Committee report relates its amend-
ment directly to a ruling by the Acting Attorney General concerning the use of
our film Czechoslovakia 1968 over television by Senator Buckley of New York.
Thus, if the proposed legislation passes, USIA would still be required on request
to make available materials to Members of Congress and the press. However,
the proposed legislation would appear to restrict the uses to which this material
could be put by Members of Congress once it was made available to them. As
a practical matter, we recognize that many congressional requests for our prod-
ucts are to honor constituent requests, so there would be a question whether a
Congressman could make available to any constituent materials which he had
obtained from the Agency without violating the law. There would be no way
USTA could monitor such a requirement once its materials had been given to
a Member of Congress. I happen to believe, from a public policy point of view,
that the pending legislation on this subject in the Senate is unwise in that it
would restrict our materials from public scrutiny which might provide a basis
for a judgment as to the effectiveness of the Agency.
Mr. Chairman, I have attempted to outline our policies, procedures, and prac-
tices for providing information to the Congress of the United States, and I will
be pleased to try to answer any questions that you or other members of the
subcommittee may have on this subject. Thank you.
Mr. Mooriikad. I notice that on page 6 of your testimony that the
refusal in — well, in this year of the access to the program memoranda
and planning papers was the first time that the Agency had denied
materials to a congressional committee. Do I understand then that in
previous years program memoranda and planning papers have been
submitted to congressional committees ?
3241
Mr. Ablard. To the best of my knowledge, they had never been
requested by a congressional committee before.
Mr. Moorhead. So, this was, to your knowledge, the first time there
was a request for this, and that was the reason for the refusal ?
Mr. Ablard. I believe that the question arose during the hearing
in this committee, and it was the hearing we were having on Laos
and Cambodia, and I am not sure whether you ever formally made
such a request. Possibly the staff can refresh my recollection on that.
Mr. Moorhead. Did we make a formal request of USIA for pro-
gram memoranda and planning papers ?
Mr. Phillips. Not of USIA, but AID.
Mr. Moorhead. Apparently, we did not, this subcommittee did not
make such a request of you. I know
Mr. Ablard. It was discussed, and the witnesses we had before you
at that time were fully cognizant of what the program policies were,
and that was the subject of some of the discussions I remember during
the hearing.
Mr. Moorhead. You describe on page 9 of your testimony a disclo-
sure of certain information which was unfortunate but, you said, it did
not result from the established procedure between the Agency and our
subcommittee.
Was our subcommittee involved in that disclosure in any way that
you know of ?
Mr. Ablard. No, Mr. Chairman, not at all.
Mr. Moorhead. I just would like to state that our subcommittee has
lived up to our joint understanding. Incidentally, you do mention this
working agreement that goes back to the days of Edward K. Murrow
and Congressman Moss, then chairman of this subcommittee, and I
gather that you consider that that working agreement to still be in
effect?
Mr. Ablard. Yes, we do. You have raised the point earlier which I
might mention, because you have asked other witnesses about dealing
with individual Members of Congress, that although the precise lan-
guage of the understanding we have with your subcommittee requires
us to make these available only to the chairman and ranking minority
member, in practice we have been a bit more liberal in that if any
Member of Congress wants information, who is on a committee that
has some connection with oversight or that area and has asked for
public opinion polls, we have made them available to him.
Mr. Moorhead. You criticize the pending Senate bill, particularly
in that it would prohibit you from making distribution of polls to 45
academic institutions.
If it were amended to, in some way or another, allow you to continue
to make them available to the 45 institutions, would that solve your
public problem ? I realize you also have this congressional problem.
Mr. Ablard. I think that is only a part of it, and I think this goes
to a fundamental question of public policy on the accessibility of the
public to USIA media materials and other products of the Agency.
We routinely comply with requests, for instance, from Soviet scholars
in the United States who are interested in our magazine America, of
which some 60,000 copies go to the Soviet Union, and there are Soviet
scholars who want to see what we are saying to the Soviet Union. It
3242
is published in Russian, so, obviously, there is no great demand in the
United States. We fulfill maybe six to eight requests a month for this
magazine. Under the strict terms of the Senate language, I think there
is a serious question as to whether we could even do that. That is one
example.
Yesterday, the Senate adopted an amendment to exempt our maga-
zine "Problems of Communism," which I know you and your staff have
seen in the past hearings we have had, from the restrictions of this
amendment, as this is our only publication that is sold through the
Government Printing Office. GPO requires that they be permitted to
sell it in the United States ; so, there are some 4,000 to 5,000 subscribers
in the United States.
Now, the Senate has adopted that amendment.
Mr. Moorhead. Mr. Horton ?
Mr. Horton. I do not have any questions.
Thank you for coming.
Mr. Ablard. Thank you, Mr. Horton.
Mr. Horton. And for your testimony.
Mr. Moorhead. Mr. Cornish ?
Mr. Cornish. Thank you, Mr. Chairman. Mr. Ablard, we have had
a very cordial relationship over the years and on a number of occasions.
There is something that I cannot, for the life of me, understand,
through my number of years of service with the subcommittee and on
overseas investigations, especially. Whenever we have met with USIA
people — and this has been a frequent occurrence — they have literally
begged us to take a look at the country program memoranda. Now. all
of a sudden they are out of bounds with the Congress. What has
happened to cause this rapid change of stance or attitude ?
Mr. Ablard. Well, I did not realize that our staff overseas was beg-
ging people to look at them.
Mr. Cornish. Well, perhaps that is
Mr. Ablard. I 'now, in the past, they have been shown to General
Accounting Office auditors. I cannot really answer your question as to
what might have happened on it, but I would expect that in the future
some country program memoranda might still be made available on an
individual oasis to members of the staff of this committee or the
General Accounting Office auditors.
Mr. Cornish. Are you speaking of country program memoranda
which are approved positions now ?
Mr. Ablard. Well, this is something that we are attempting to do
in an effort to accommodate the Congress. My attitude is basically the
same as Mr. Abshire's, that when we do get into these confrontations
I like to work out some accommodation to arrive at a happy solution,
because, as you pointed out earlier, there are several factors in this
executive privilege claim that the President made on the CPM. We
are attempting to develop a modified country program memoranda
which would be an approved position and would reflect not tentative
planring data but approved policy of what the goals of the USTA
were in a given country.
Now, in the past at some stage of development, in many cases CPM's
became that. Now, I would suspect in many cases those offices that
showed you those, had them in that form. In all too many instances,
3243
though, we have not had them developed to that degree. We want to
make certain they are developed to that degree, that they become an
agency policy and an administration policy in which event we will
attempt to make them available to the Congress.
Mr. Cornish. Well, of course, they wanted to show them to us so
that we could get a clear and concise understanding of what the in-
formation program was in a particular country and what problems it
faced there, and what the needs were.
And, of course, this is the nitty-gritty type of thing that we are
interested in, the objectives and goals; and whether they are specific
and whether you reach them or do not reach them, this is all part of
the audit responsibilities which we have. And, frankly, I cannot under-
stand why these documents were so readily available at one point and
now all of a sudden they are off-limits.
Mr. Ablard. One problem was the timing of it, that the request came
at a time when the CPM's were being formulated, and they were, as
the President's memorandum noted, tentative planning documents. As
the year progresses they become more formalized and become firmer
position papers.
Mr. Cornish. Do you have a firm position paper now for Cambodia
for fiscal 1973?
Mr. Ablard. I am not able to answer the question.
Mr. Cornish. I think if you do, you ought to make it available to the
Senate Foreign Relations Committee.
Thank you, Mr. Chairman.
Mr. Ablard. They did not ask for just Cambodia, of course. They
asked for all country program memoranda.
Mr. Cornish. Well, if they asked for all, then, if you have them
approved
Mr. Ablard. This is my hope, that at some point very soon we will
be able to have earlier on an approved document which we can give
that committee or any other committee that wants to see what our
policies are in one or any number of countries.
Mr. Cornish. Of course, I might make just one short final comment
on that, and that is we are not totally unsophisticated on these matters,
and we realize that these are tentative documents, and always have ;
and we do know that they are subject to changes, and we have always
regarded them in this light.
And, so, it is not new to us that they have to go through a process of
change that might come out in a totally different form when they come
out of the machine.
Mr. Moorhead. Mr. Copenhaver, do you have any questions ?
Mr. Copenhaver. No.
Mr. Moorhead. Mr. Phillips ?
Mr. Phillips. Just one brief question, Mr. Chairman.
On this question of the JUSPAO polls that Congressman Wolff
testified about, did Mr. Wolff make a direct request to USIA for copies
of these JUSPAO polls?
Mr. Hall. I do not believe so.
Mr. Ablard. I think it might be noted that Congressman WoliT was
talking about in the speech he made on October 20, CORDS polls con-
ducted by AID. Thus, there is possibly some confusion, as Mr. Abshire
3244
noted, because Mr. Wolff was talking about one type of poll, COEDS
polls, and we were responding on JUSPAO polls. We inadvertently —
and we are very regretful about this — advised Mr. Abshire, in a letter
to him that there were no JUSPAO polls. We immediately advised
State, and State, on the next day, advised Mr. Wolff.
Mr. Phillips. You recall that we discussed this same subject last
summer in our hearings as to the "pacification attitudes surveys" that
CORDS conducts, and how they were different from the JUSPAO
polls in which USIA was involved.
But is there anything additional that you can tell us to shed any
additional light, in regard to my question to Mr. Abshire as to what
caused the breakdown of communications that apparently existed be-
tween your office and his, so that he did not know, apparently, of the
existence of these polls after you had already made them available to
this subcommittee ?
Is this just one of those administrative problem areas that sometimes
crops up ?
Mr. Hall. We are not certain that it is exactly the same polls, that
on the one hand one part may have been referring to the PAAS polls
that, you know, CORDS conducts, and, on the other hand, the JUS-
PAO polls which we made available and which are USIA polls.
Mr. Ablard. We were addressing ourselves only to the JUSPAO
polls, and it is my understanding that Mr. Wolff was talking about
CORDS polls, and I do not know whether you have CORDS or
JUSPAO.
Mr. Phillips. No, in this request to Mr. Abshire he mentioned
JUSPAO polls, and what puzzles me is: Why didn't Mr. Abshire's
office call your office to see if such polls were in existence before he
told Congressman Wolff, in a letter on October 8, that there were no
such polls ?
Mr. Ablard. He did, and we inadvertently advised him in error.
Mr. Phillips. You advised him that there were no such polls?
Mr. Ablard. That is right. It was our error.
Mr. Phillips. I see. Well, I may have been putting the blame on the
wrong horse.
Mr. Ablard. Well, we will have to shoulder that one.
Mr. Phillips. Thank you, Mr. Chairman.
Mr. Moorhead. Thank you, Mr. Ablard. It is always good to hear
when somebody will say, "We will shoulder the blame for this." It is
a natural tendency to shift it off, and we appreciate your frankness
and the candor of your entire statement, which has been of great help
to us.
When the subcommittee adjourns today, it will adjourn to meet
tomorrow at 10 o'clock when we will hear again from the representa-
tives of the Internal Revenue Service, and I hope that the gentleman
from New York (Mr. Horton) will be with us, because of his expert
knowledge he has in this field and the interest he has shown.
If there are no further questions, the subcommit tee is now adjourned.
(Whereupon, at 12:15 p.m., the subcommittee adjourned, to recon-
vene at 10 a.m., Thursday, June 1, 1972.)
U.S. GOVERNMENT INFORMATION POLICIES AND PRAC-
TICES—PROBLEMS OF CONGRESS IN OBTAINING
INFORMATION FROM THE EXECUTIVE BRANCH
(Part 8)
THURSDAY, JUNE 1, 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, Frank Horton,
and Gilbert Gude.
Staff members present : William G. Phillips, staff director ; Norman
G. Cornish, deputy staff director; Harold Whittington, staff consult-
ant; and William H. Copenhaver, minority professional staff, Com-
mittee on Government Operations.
Mr. Moorhead. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
This morning, we conclude the final day of our hearings on the access
of Congress to information from the executive branch.
By way of background, members will recall that on Tuesday, May 16,
testimonv before this subcommittee by Deputy Comptroller Gen-
eral Keller leveled some very serious charges against the Internal
Revenue Service concerning their information access policies. It is also
significant that last month during our hearings on the administration
of the Freedom of Information Act, it was pointed out that IRS also
has an abysmal record in denying all types of information from in-
dividual citizens by tortured legal interpretations of the exemptions
that are permissive, but not mandatory.
Mr. Keller said in his testimony :
G-AO's review efforts at the Internal Revenue Service have been materially
hampered, and in some eases 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.
He went on for two pages of his statement to discuss this situation
in detail and to quote from an IRS legal opinion upholding its refusal
to comply with section 313 of the Budget and Accounting Act of 1921.
At the suggestion of Mr. Horton, and concurred in by myself and
other subcommittee members, IRS Commissioner Walters was re-
(3245)
3246
quested to respond last Wednesday to these specific charges. We want
to find out what entitles IRS to be the "sacred cow" of Government —
one of the very few agencies in the executive branch other than the
CIA — whose operations and activities are not subject to any meaning-
ful independent GAO audit, as required by law.
Last Wednesday's hearings were terminated because we felt that the
statement was not responsive to the questions that we were seeking.
We therefore postponed the hearing until this morning to give IRS
adequate time to respond more directly.
We are pleased to note, Commissioner Walters, that j^our revised
statement has complied with our request.
Will you proceed? Perhaps you might start by introducing your
associates.
As you know, as an investigating committee, we administer oaths to
witnesses, but we have to do that after we have a quorum present at
the hearing.
However, in view of the fact that you have a long statement, you
can read that as you wish, and we will administer the oath retro-
actively and prospectively when another member of the subcommittee
is present.
Commissioner, we are pleased to have you here, and look forward
to this very interesting discussion of the issues which are raised by
your statement. We will then have the opportunity in the questions
and answers to discuss what the proper role of the legislative branch
and the executive branch is in this area. So, will you proceed,
Commissioner ?
STATEMENT OF JOHNNIE M. WALTERS, COMMISSIONER, INTERNAL
REVENUE SERVICE; ACCOMPANIED BY RAYMOND E. HARLESS,
DEPUTY COMMISSIONER; LEE H. HENKEL, JR., ACTING CHIEE
COUNSEL; DONALD 0. VIRDIN, CHIEE, DISCLOSURE STAFE, OEEICE
OF ASSISTANT COMMISSIONER (COMPLIANCE) ; AND FRANCIS I.
GEIBEL, ACTING ASSISTANT COMMISSIONER (INSPECTION) —
Resumed
Mr. Walters. Thank you, Mr. Chairman.
I have with me this morning Deputy Commissioner Harless on my
right and Acting Chief Counsel Henkel on my left. And back of me
I have Acting Assistant Commissioner for Inspection Geibel, and Don
Virdin, with whom I believe the committee is already familiar, and
his secretary. I apologize, but I do not remember her name. It is Mrs.
Sampson.
Mr. Mooriiead. Well, we welcome all of you.
And would you like to have any of your associates come up to the
witness table with you ?
Mr. Walters. Mr. Chairman, this is fine, and they will come up
later if need be.
Mr. Moorhead. Please proceed.
Mr. Walters. Mr. Chairman, we are pleased to be with the com-
mittee again in response to your request that we comment on matters
raised by Deputy Comptroller General Robert F. Keller concerning
the alleo-ed failure of the Internal Revenue Service to make available
3217
to General Accounting Office representatives certain records and in-
formation which the General Accounting Office considers necessary
to permit that agency to conduct an effective review of Internal
Revenue Service operations and activities.
On May 24, 1972, as the chairman said, we submitted a statement
which we considered pertinent to your general inquiry. You and your
staff have copies of that statement, with attachments, and we request
that the May 24 material be associated with the current statement. We
would appreciate your associating the two for the record.
In particular, we are concerned with Mr. Keller's testimony of
May 16 and with his letter of May 23, 1972, to which was attached a
memorandum entitled "GAO Access to Records Problem at the In-
ternal Revenue Service."
In this statement, we hope, as the chairman indicated, to respond
fully to the comments of Mr. Keller.
Our response is addressed to the basic contention that the General
Accounting Office has the authority to review or oversee the admin-
istration of the internal revenue laws. You indicated your desire to
give the Internal Revenue Service an opportunity to rebut positions
stated by Deputy Comptroller General Keller testimony, as a matter
of record, before the committee.
The question as to the authority of the General Accounting Office to
review the operations of the Internal Revenue Service in all of its
phases has been a matter of concern and discussion between the Gen-
eral Accounting Office and the Internal Revenue Service for at least
10 years. The General Accounting Office has asserted a right to review
the administration of the internal revenue laws. The Internal Revenue
Service consistently has taken the position that the revenue laws en-
acted by the Congress specifically exempt the Internal Revenue Service
from review by the General Accounting Office except in matters of
housekeeping.
This question, of course, is new both to me and to Mr. Henkel. I
personally have reviewed the situation because the matter is grave.
The committee, when we were here last week, furnished us with a copy
of that letter and that memorandum. The question involves what we
believe to be the statutory exemption of the Service from review, and.
indeed, even beyond that, a possible encroachment on the separation of
powers among the branches of government. I also have asked Mr.
Henkel to review the situation from a legal standpoint. He has ad-
vised me that, in his opinion, the General Accounting Office does not
have the authority to perform the types of reviews it wishes to make
and that the Service does not have the legal authority to waive the
statutory exemption against such review.
At this point, Mr. Chairman, we stress that we are not trying to
"hold out," as the expression goes, from examination, audit or review.
The fact is that Congress created its own monitor, namely, the Joint
Committee on Internal Revenue Taxation, to oversee the administra-
tion and enforcement of the revenue laws. Indeed, on December 14,
1970, the Joint Committee on Internal Revenue Taxation met with
representatives of the Treasury Department and the General Account-
ing Office and an understanding was reached that certain specific types
of reviews would be performed by employees of the General Account-
ing Office as agents of the joint committee.
3248
I am told that on the occasion of the December 14, 1970, meeting1 the
joint committee passed a resolution which, in general effect, authorized
the General Accounting Office to act as the committee's investigative
agent under section 8022 of the Internal Revenue Code, but under
joint committee control.
In letters dated January 13, 1971, Dr. Woodworth, chief of staff
of the joint committee, states some of these control mechanisms, and
I refer to them for the full text. In summary, however, Dr. Wood-
worth made it clear that the conduct of any study by employees
of GAO as agents of the joint committee were subject to joint com-
mittee control, as follows :
1. The joint committee, ordinarily after consultation with the Com-
missioner, will authorize the GAO to act as its agent to make a par-
ticular study.
2. Before the study is begun the staff of the joint committee will
counsel with representatives of the General Accounting Office and the
Internal Revenue Service regarding the manner in which the study
is to be carried out.
3. For each study a list of the personnel designated to conduct the
studv will be furnished to the Commissioner and to the joint committee
staff by GAO.
4. During the course of the study, representatives of the General
Accounting Office will periodically consult with the staff of the joint
committee, and representatives of the Internal Revenue Service will
be expected to advise the staff if the study is producing unanticipated
demands upon the time of Internal Revenue Service personnel.
5. The draft report resulting from the study is to be submitted both
to the Internal Revenue Service and the staff of the joint committee.
The final report will go only to the joint committee with a confidential
copy to the Commissioner. The joint committee would control the
release of the report or any of its contents.
6. The General Accounting Office is enjoined not to use the study
in any report of GAO not authorized by the joint committee and not
to contact taxpayers unless authorized by the joint committee.
To date, Mr. Chairman, the joint committee has authorized only one
study. This study relates to delinquent account policies and procedures.
It has been in progress for approximately 18 months.
At this point, we would invite the committee's attention to the fact —
and I am at this point, Mr. Chairman, adding something to this pre-
pared statement. We would invite the committee's attention to the
fact that IRS has cooperated fully in this GAO study. To this, Deputy
Comptroller General Keller testified when he appeared before the com-
mittee on May 16. The fact that the joint committee so far has author-
ized only one GAO study does not mean the mechanism is not working.
The joint committee takes its responsibilities and work quite seriously,
as it should. Insofar as we know, there is no evidence indicating any
reluctance to authorize additional studies. We suspect that the joint
committee would entertain GAO proposals for further studies. It
might be worthwhile to determine whether the GAO has requested
other authorizations. We do not know whether it has or not.
Turning back to the text of the prepared statement now.
Not only do we read existing law as prohibiting GAO review of
IRS administration and operations but we also see no need for legis-
3249
lation because present law assigns the duty and responsibility for that
review to the joint committee. This statement, of course, assumes that
the Congress is satisfied with its present arrangement for review of
IRS.
Section 8022 of the Internal Revenue Code specifically provides that
it shall be the duty of the joint committee to investigate the operations
and effects of the Federal system of internal revenue taxation and to
investigate the administration of such taxation by the Internal Rev-
enue Service, In pertinent part, section 8022 reads :
It shall be the duty of the Joint Committee —
(1) Investigation —
( A ) Operation and effects of lair. — 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 * * *.
In addition, I think it would be well here to quote section 6406 of
the Internal Revenue Code which reads in essential part :
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 * * * be subject to re-
view by any other administrative or accounting officer, employee or agent of the
United States.
The present exploration of the duty, responsibility, and authority to
administer the internal revenue laws and the Internal Revenue Service,
with legislative oversight only by the joint committee, apparently had
its inception in a series of requests by the General Accounting Office
commencing in 1967, for access to Internal Revenue Service operating
procedures and information.
The first dealt with the reporting practices of certain named tax-
payers with respect to State tax refunds. The General Accounting
Office intended to relate the reporting practices of these specific tax-
payers to Service procedures and controls respecting that type of
income-deduction item. The thrust of this request would be to deter-
mine whether or not the Service in general should examine returns
of all taxpayers who had claimed in 1 year the deduction for the pay-
ment of State taxes and then compare the reporting practices of those
same taxpayers as to State tax refunds in subsequent years. They
would have to examine the returns of each taxpayer to determine
whether or not such taxpayer had properly handled the tax refund in
subsequent years. In short, there would be an audit made by the Gen-
eral Accounting Office. Moreover, for the information to have any real
definitive value, the GAO would have to contact the particular
taxpayers.
Later, in 1968, Mr. Neuwirth of the General Accounting Office re-
quested statistical studies made by the Internal Revenue Service in
connection with its taxpayer compliance measurement program. The
TCMP information was designed by the Service to furnish information
concerning the size of the audit problem, the audit problem by class
of return, and some aspects of the audit problem by source of error in
returns. As Mr. Neuwirth indicated in his letter dated January 4, 1968,
GAO expected v'to utilize the report to assist" the General Accounting
3250
Office "in planning and scheduling reviews of Internal Revenue Service
operations."
These two requests are related in purpose, namely, the review of the
administration of the Internal Revenue Code. As Mr. Keller stated
in the attachment to his letter of May 23, 1972, access to taxpayer
records would be needed in order for the General Accounting Office to
examine into the adequacy of the Internal Revenue Service returns
selection and classification teclmiques.
The fact is that if by guidelines and tolerances a return is not audited
but is accepted as filed the tax liability of the particular taxpayer has
been determined by the Service just as much as if the return had been
examined in detail and accepted as filed, or refund made, or an
additional tax assessed and collected.
From a practical point of view, we feel the Congress has been well
aware that the tax administration is unique and as far as possible must
be left to the administrators but with appropriate surveillance by the
Joint Committee on Internal Revenue Taxation.
The memorandum filed by Mr. Keller states, in part:
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
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 effective-
ness, efficiency, 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.
Quite simply and in plain language, this aim, in our opinion, is
equivalent to review of the administration of the internal revenue laws.
It is a review of the internal revenue administration which is pro-
hibited by section 6406. It is obvious that this type of review would
mean an intensive physical presence of the General Accounting Office
in the Internal Revenue Service — a type of dual administration. Bal-
ancing between the desirability of this type of review and the possible
loss of revenue efficiency which might result therefrom is a matter that
we feel should be passed upon by the Joint Committee on internal reve-
nue taxation. The secretary or his delegate has been given the exclusive
duty and responsibility for collecting and protecting the revenue. He
has the responsibility for the end result of the collection of the revenue.
He cannot pass that responsibility on to anyone else.
The Revenue Service has day-to-day contact with the general public.
There are provisions for appeal from its determinations. In addition, it
is well known that if any Internal Revenue Service employee offends
a taxpayer, that taxpayer may and often does communicate to the Com-
missioner his complaint. Taxpayers and nontaxpayers do not hestitate
to write to Members of Congress registering complaints. This is all to
the good. It illustrates that the Revenue Service is under constant sur-
veillance by the public and by Congress, as well as by the Joint
Committee.
I might add at this point, Mr. Chairman, that also we are under
constant surveillance by the courts in much litigation.
■ Mr. Keller also stated in substance that the Internal Revenue Service
has permitted Federal agencies, States, individuals, contractors, and
others to have access to tax returns and records. Apparently the focus
3251
of the remark was directed to the disclosure of income tax returns
and files. In our May 24, 1972, statement, I submitted explanations
which detail those to whom access to income tax returns and files is
granted. Nevertheless, we emphasize that IRS is constantly alert to
this extremely sensitive issue and does not make unauthorized dis-
closures. This statement, Mr. Chairman, may be unnecessary in view
of our presence here this morning, because if we were not so constantly
alert we probably would not be here this morning. Under our volun-
tary self-assessment tax system to make unauthorized disclosures
would be disastrous. We are fully aware of that and we believe this
committee also is. Mr. Keller's reference may leave the impression
from the words "individuals, contractors, and others'' that access to
income returns is handled in a "loose" manner. Such is not the case.
Our May 24, 1972, transmittals demonstrate that the Service adheres
strictly to the disclosure laws.
IRS refusals to disclose income tax returns to the General Account-
ing Office have been essentially because the review was not in connec-
tion with a matter officially before the General Accounting Office.
Income tax information is furnished to other Federal agencies only as
to matters presently before them and to States only for State tax
purposes, strictly in accordance with applicable law. Because the posi-
tion of the Service and the Chief Counsel is that the General Account-
ing Office is prohibited by statute from reviewing the administration
and enforcement of the revenue laws, the Service has not furnished
the General Accounting Office with income tax returns or related in-
formation. In addition, we have refused to make available to the
General Accounting Office the TCMP statistics referred to above for
the purpose of GAO review of Internal Revenue Service operations.
As the regulations are constituted at present, returns of income and
related material, as well as the similar material with respect to the
other taxes enumerated in section 6108 of the code, can only be made
available to the General Accounting Office on the request of the Comp-
troller General personally and on a name by name basis under section
6103(a) (1) (f ) of the regulations approved and promulgated by the
President. Under that section, the Internal Revenue Service may not
even elect to allow the General Accounting Office to have the right of
general access to income tax return files. Hence, assuming enactment
of legislation authorizing the General Accounting Office to review and
evaluate Internal Revenue Service operations, we think an Executive
order and regulations under section 6103 still would be necessary. Al-
ternately, of course, Congress could pass a law or a joint resolution
allowing that access. Without one of these prerequisites, the law does
not allow for general access by the General Accounting Office. Of
course, as already indicated, the General Accounting Office, acting
as the authorized agent of the Joint Committee, under the right of the
Joint Committee, may obtain access to income returns and files under
section 6103 (d) and section 8021 of the code.
Mr. Keller observed, at page 6 of his memorandum, that the Joint
Committee may request the opinion of GAO as to other areas which
should be examined. We see no bar to an investigation by the Joint
Committee in which that committee would utilize personnel of GAO
as its agents. The Joint Committee has the authority and undoubtedly
would listen to both the Internal Revenue Service and the General
3252
Accounting Office and decide what it feels is required, if anything,
in the way of preliminary or final studies.
The memorandum enclosed with Mr. Keller's letter of May 23, 1972,
contains specific references to "examples of recent and pending GAO
activities which involve access to records problems." We believe the
comments already made respond to his observations relating to the
administration of the Federal highway use tax and the operations of
the Alcohol, Tobacco and Firearms Division. We have under study the
recent request included in a letter dated May 5, 1972, concerning a
proposed GAO review of economic stabilization activities of the IRS,
and the additional request included in another letter dated May 5, 1972,
concerning contacts with service personnel in the expectation that the
Joint Committee will wish GAO to conduct further studies.
In our May 24, 1972, appearance before this committee, we agreed
to furnish a copy of the September 1967 chief counsel's opinion rela-
tive to this issue we are discussing. We submitted that opinion on May
26, 1972. We have attached to this statement, as exhibit A, a copy of
the chief counsel's opinion dated May 30, 1972, concerning the lack of
legal authority of the General Accounting Office.
Mr. Moorhead. Without objection, the various exhibits will be made
a part of the record.
(The September 1967 opinion, exhibits, and attachments referred
to follow:)
September 5, 1967.
William H. Smith,
Deputji Commissioner,
Lester B. Uretz, (signed Lester R. Uretz)
General Accounting Office — Audit Authority Respecting Administration
of Internal Revenue Code
We refer to your memorandum dated June 27, 1967, in which you request ad-
vice on whether or not the General Accounting Office has the authority to audit
or review Service or lack of Service controls and procedures relating to taxpayer
reporting of State individual income tax refunds as income on federal tax
returns.
The question naturally involves whether the Service may legally provide the
Comptroller General with income tax return information on specific taxpayers for
his use in acting on a matter if that matter is by law within the exclusive respon-
sibility of the Commissioner of Internal Revenue. Our ansioer to this proposition
is that the administration of the Internal Revenue Code, including the type of
review proposed by the Comptroller General, is a matter delegated by law solely
to the discretion of Secretary or his delegate and that he or his delegate is solely
responsible for the exercise of that discretion. Therefore, such a matter could not
be officially before the General Accounting Office for the purpose of the proposed
review, and under the Presidential regulations, Treasury Decision 6543, Regu-
lations. 301.6103 (a)-l(f ), the Commissioner may not furnish the requested infor-
m a Hon.
On the corollary problem, we find that the General Accounting Office, although a
legislative function, is a "Federal establishment" within the meaning of the said
Regulations and thus the Commissioner in his direction could honor a request of
the General Accounting Office to inspect income tax returns on a name by name
basis for use in a matter within its jurisdiction, and thus "officially before" it.
We have examined the correspondence passing between your office and the
Comptroller General. Without endeavoring to describe the various nuances of
the contacts concerning this matter, we will briefly note their general tenor.
Initially the Comptroller General advised that his office "is making a review of
Internal Revenue Service procedures and controls relating to taxpayers' report-
ing of State individual tax refunds as income on federal tax returns" and fur-
nished a list of taxpayers who had apparently received tax refunds from certain
states. In summary, he desired information from income tax returns for the
3253
years 1963 and L964, which would reflect the reporting practices of these named
taxpayc rs.
The Service supplied him with data in statistical form, which was readily
available without audit, but which was necessarily incomplete, and did not relate
to identifiable taxpayers. The Service in its letter of May <>, 1967, advised that
identifiable income tax information could not be properly disclosed, and ad-
mitted awareness of the compliance problem in the area of taxpayer reporting
of state tax refunds. The position taken was that at present the Service does not
have the manpower or equipment necessary to establish effective controls. (We
understand informally that from what evidence is available, this type of control
is not economically feasible.)
Tin- Comptroller General was not satisfied with statistical data. In his reply
letter of June 12, 1967, the Comptroller General defined bis purpose in the follow-
ing words :
"Accordingly, we request that the dollar amount of State income taxes claimed
as deductions by each of the 143 taxpayers be furnished us. The data will assist
us in making a further analysis of the Uf3 taxpayers' income reporting practices
and in reaching a final conclusion concerning tlrs matter." (Emphasis supplied.)
Any meaningful analysis designed to show the dollar amount of state tax
refunds not reported or reported, as related to dollar volume of itemized state
tax deductions taken, would require complete return information. Otherwise,
the analysis would have no context with Service lack of blanket controls. Essen-
tially, this review would constitute at a minimum a comparative analysis of
return information. If that was not sufficient, then an office audit of the 1963
and 1964 returns would be required. Finally, a full scale audit of the returns
might be required. There is no difference between this type of review and a
review of administrative guide lines and tolerances ; or of general audit proce-
dures : of the audit of general classes of returns or general classes of items in
returns or of the audit of specific returns or review of the effectiveness of col-
lection policies and procedures, or the review of the settlement of cases, offers
in compromise, refunds, etc.
In a larger sense Congress has delegated the administration of the Revenue
Code, including the power of discretion in such administration, to the Secretary
or his delegate. Most importantly, Congress has indicated it was their intention
to hold the Secretary or his delegate solely responsible for the exercise of all
delegated powers. (Senate Report No. 27, page 230, 69th Congress, 1st Session
1 1926) ) . See also 37 OAG 56, 60 (1933) .
A memorandum of law outlining the legal basis for our firm opinion in this
respect is transmitted herewith. However, we will briefly note some of the salient
Legal factors involved, and the prior position of this office in a somewhat similar
problem. My predecessor, Mr. Rogovin, in a memorandum dated November 24,
1965, with respect to the agricultural payments, stated :
"We have not made a study in depth of the authority of the Comptroller
General as against the authority of the Treasury in this matter; however, it
scans that the purpose of their request and the facts involved speak eloquently
of a matter solely within, the discretion of the Treasury, and, of course, the Com-
missioner as a delegate of the Secretary." [Italic supplied.]
Now we have examined this problem in some depth, within the time permitted,
and affirm that position.
As you know, section 6106 of the Internal Revenue Code prohibits the admin-
istrative review of decisions of the Secretary or his delegate upon the merits of
any claim presented or authorized by the Internal Revenue laws by any other
administrative or accounting officer or employee or agent of the United ^States,
except the review given by law to the Tax Court.
The wording of this statute and its legislative history, clearly indicate the
great breadth of this exemption from administrative review and specifically
from review by the Comptroller General.
The Budget and Accounting Act of 1921 which became effective August 11,
1921, created "an establishment of the Government to be known as the General
Accounting office and to be under the direction of the Comptroller General of
the United States," (31 U.S.C., section 41).
On September 15, 1921 (less than a month and a half after the effective date
of the Budget and Accounting Act), the Treasury spokesman pointed out to the
Congress the possibility of the duality of audit, when he said at a Senate Finance
Committee confidential hearing :
70-2.53— 72— pt. S 21
3254
"I have a new provision with relation to claims for refund of taxes in the
Treasury Department. It is a thing that yon can pass judgment upon very
quickly. The proposition is this : The new budget bill practically gives the right
to a final determination on on [sic] all claims against the Goverment. It puts it
in the hands of the Controller [sic] General. He has the final say on all claims.
The question is whether you want him to have the final say on all these technical
tax questions. In other words, you have a bureau up there which costs five. six.
seven, or eight million dollars a year. It is technical on the highest extreme. I
can not think of the Controller General performing that work satisfactorily with-
out duplicating the machinery already provided."
Congress then passed the Revenue Act of 1921 (effective November 21, 1021),
which in Section 1313 enacted the wording requested by Treasury :
"That in the absence of fraud or mistake in mathematical calculation, the
findings of facts in and the decision of the Commissioner upon (or in case the
Secretary is authorized to approve the same, then after such approval) the merits
of any claim presented under or authorized by the internal-revenue laws shall
not be subject to review by any other administrative officer, employee, or agent
of the United States."
This section, except for minor changes, is now Section (5406. The principle
announced in 1021 has been followed in all subsequent revenue laws and codes.
Under the Revenue Act of 1021 a taxpayer could not contest his tax except
by paying the tax and suing for a refund. In effect he filed a "claim" against,
the Government. Today the same theorem of Revenue Service-taxpayer relation-
ship applies because to contest an assessment the taxpayer is the claimant and
the Commissioner or the District Director is the respondent. In effect all litiga-
tion involving internal revenue taxes involves a claim against the Revenue. The
assessment of tax by the Commissioner is prima facie correct.
In 1924 Congress amended this section by inserting the word "accounting"
between the words "administrative officer" so that the new section provided that
the findings of fact and the decisions of the Commissioner "shall not * * * be
subject to review by any other administrative or accounting officer, employee or
agent of the United States." Section 1007, Revenue Act of 1024. The debates
make clear that Congress intended the 1021 exemption statute to apply to the
GAO and that through oversight the word "accounting" had been left out and
hence it was being put back in the Revenue Act (Congressional Record Vol. 65,
part 7, page 7141).
In 1026 Congress considered two other matters which emphasized that the
administration of the Internal Revenue laws is the exclusive responsibility of
the Secretary or his delegate. These are (1) the differences of opinion between
the Secretary and the Comptroller General regarding the determination of
customs duties and (2) the creation of the Joint Committee on Internal Revenue
taxation.
Referring to the first incident, GAO contended that all Customs Bureau docu-
ments had to be sent to GAO before it would settle the customs accounts.
Although the Tariff Act did not contain a statutory exemption like that in
Revenue Act of 1921, the Attorney General held that the Comptroller General
had no such audit authority. (34 OAG 311 (1924)). The Comptroller General
disa greed.
The difference of opinion was carried to Congress by Treasury, who asked for
a specific tariff act exemption statute such as the Revenue Acts had. The House
agreed, and in the Tariff Amendments Act of 1926 passed such an exemption
section. House Report No. 1137, p. 24, 69th Congress, 1st Session (1926)). The
Senate Finance Committee recommended the Law for passage. (Senate Report
No. 1026, 69th Congress, 1st Session (1926)). The Comptroller General by letter
advised the Finance Committee that the law as enacted by the House could be
interpreted as preventing even the accounting for fnnds received. (Senate Re-
port No. 1650. 60th Congress. 2d Session (1027)). He later advised the Finance
Committee that he agreed with Treasury that he could not take the records,
and agreed further that he could not audit Customs' findings of law and fact.
Apparently, in view of this agreement on respective jurisdictions. Congress did
not amend the Tariff Act. The Senate report referred to above was reported to
the Senate. (68 Congressional Record, p. 407-". 69th Congress, 2d Session (1027)).
-The debates clearly show the feeling in Congress that Internal Revenue Service
3255
was indeed exempt. (67 Congressional Record, pp. 10, 854, 10988, 12535. (1920) ).
The second incident involved the Couzens Committee investigation of the
Revenue Service in 1924 and the resultant creation in 1920 of the Joint Commit-
tee on internal Revenue Taxation.
The report of the Couzens Committee in 1920 stated in part, "By vesting all
discretionary powers under the Revenue Arts in the Commissioner, Congress
clearly evidenced an intention to hold him soleiy responsible for the exercise of
all delegated powers". (Senate Report No. 27, page 230, 69th Congress, 1st Ses-
sion (1926) ).
The Senate Committee, in commenting on the powers to be vested in the Joint
Committee, observed that Congress required a procedure so that it could be
advised of the systems and methods employed in the administration of the
Revenue laws, in order to appraise the need for future legislation. It observed
further that such a function proi>erly belonged to the Senate Finance Committee
and the House Ways and Means Committee, jointly. (Senate Report No. 52,
09th Congress, 1st Session (1920) ).
The Joint Committee so established then and now (by section S022 of the
Code) has the duty to investigate the administration of Internal Revenue taxes,
according to the above report, for legislative purposes. In addition, the Joint
Committee is composed of ten members, five from the Senate Finance Committee
and live from the House Ways and Means Committee.
With further reference to the Joint Committee, in 1932 Congress passed a
bill providing that the Joint Committee was authorized to make the final
decision on refunds of taxes proposed by the Commissioner in amounts exceed-
ing $20,000.00. The bill was vetoed on the recommendation of the Attorney
General because, in his opinion, it was an unconstitutional violation of the
principle of separation of powers. His opinion stated in part. "Where, as under
existing law, machinery has been set up in the Treasury Department for ad-
ministrative examination and allowance of these claims by executive officers,
the function of executing this law becomes an executive one and must be left
with the executive officers appointed not by the Legislative Branch but by the
Executive." (37 OAG 50, 00 (1933) ).
The veto was not overridden by Congress. Nor has the authority of the Joint
Committee been changed since that time.
Briefly stated today as in 1920 and 1932, all refunds or credits of income and
certain other taxes in excess of a stipulated amount must be reported to the
Joint Committee and no such credit or refund shall be made until after the
expiration of 30 days from the date the report is made. (Section 0405 of- the
Code).
It appears that Congress has specified the type and extent of review, and
indeed this is advisory by statute, which it is willing to exact.
Presumably, the Commissioner could make the credit or refund regardless
of the Committee's views, although for obvious reasons he does not do tins.
However, the review provisions in this particular area, and the administrative
area so reserved to the Joint Committee are an affirmation that the administra-
tion of the Code by the Commissioner is not subject to review by the Comptrol-
ler General either specifically or in general.
Nothing said here is meant to derogate the function of the General Account-
ing office to advise with the Service on accounting methods for funds collected
and their disbursement.
Incidentally, there are other federal agencies and establishments whose deci-
sion making functions are exempt from review by the Comptroller General.
Examples are the Veterans" Administration in its actions on veterans' claims -
Department of Health, Education and Welfare on social security claims ■ and
the Tennessee Valley Authority.
Eminent authors have recognized that the Comptroller General is definitely
precluded from reviewing the acts of the Secretary or his delegate Man-field
the Comptroller General, page 192-194 (1939) ; W. F. Willoughbv, The Legal
status and Functions of the General Accounting Office of the National Gov-
ernment, pp. 73-75 (1927) ; and Kohler-Wright. Accounting in the Federal Gov-
ernment, p. 78 (1950).
We are available for further discussion with respect to this matter.
Lester R. Uretz, Chief Counsel.
3258
EXHIBIT A
Memorandum
May 30, 1972.
To : Johnnie M. Walters, Commissioner.
From : Lee H. Henkel. Jr., Acting Chief Counsel.
Subject : Lack of legal authority of the General Accounting Office to review the
administration and the enforcement of the Internal Revenue Code.
Subsequent to the recent request to you by the Honorable William S. Moorhead,
chairman, Foreign Operations and Government Information Subcommittee of
the Committee on Government Operations of the House of Representatives, I have
reviewed the positions taken by this office and the Service, to the effect that the
General Accounting Office does not have the legal authority to conduct reviews
of the administration and enforcement of the Internal Revenue Code. I have
gone over the recent opinions of this office concerning requests made in the past
3 or 4 years by representatives of the General Accounting Office for access to
Service files and operations. Apparently, Mr. Keller's present conception is the
same as previously maintained but is now couched in much broader terms. It is
my belief that the positions which have been taken in the past are sound as
demonsti'ated by the following discussion.
The Internal Revenue Service advised this office that over a period of years
the General Accounting Office, hereinafter frequently referred to as the GAO, has
endeavored to implement its claimed right of review on all phases of the admin-
istration and enforcement of the Internal Revenue Code. It alleges that it has
the right and responsibility to review or audit the manner in which the tax
administration activities are conducted: that is, to analyze management discre-
tion in the administration and enforcement of the Internal Revenue Code. Indeed,
the GAO, while asserting that it would not seek to change the Commissioner's tax
determinations, has reserved the right to comment on such determinations as may
come to its attention during its management review of Service tax files.
It has been the firm view of the Internal Revenue Service that the General
Accounting Office does not have the legal authority to conduct audits and review
of the administration and the enforcement of the Internal Revenue Code. Indeed,
Congx-ess by statute has stated that except as otherwise expressly provided by
law. the administration and enforcement of the Internal Revenue Code shall be
performed by or under the supervision of the Secretary of the Treasury (sec. 7801
of the Internal Revenue Code). There is no such express exception in law other
than the duty of the Joint Committee on Internal Revenue Taxation to inves-
tigate the administration of the Internal Revenue Service (sees. 8001 to 8023,
inclusive, of the Internal Revenue Code).
The Infernal Revenue Service, in responding to requests by the GAO for
Service files relative to an ever widening scope of review, has denied access
because the GAO would be encroaching upon the exclusive functions of tax
administration.
Recent statement of the GAO position, with comments
In the November 1, 1968, communication, which is a declaration of the position
of the GAO, particular note has been taken of statements of powers possessed by
that organization, as follows :
"* * * review of the manner in which tax administration activities are con-
ducted." (p. 1)
«* * * the authority to analyze management discretion in the collection of
revenue." (p. 2)
"the purpose of any GAO audit of the Internal Revenue Service would be to
ascertain and report to the Congress on the use by Internal Revenue Service of
appropriated funds in its tax collection efforts." (p. 3)
The GAO disclaims that it would intend to violate section 6406 of the Code
which continuously since the time of the creation of the GAO in 1921 specifically
prevented review by the GAO of the merits of tax determinations made by the
Service. However, when asserting the right to revievv the use by the Service of
appropriated funds in its tax collection efforts, the GAO so qualifies its dis-
claimer of review of tax claims and decisions as to make it meaningless and in
-fact to show that it will in effect "review" this area. It states :
"* * * This would in no way involve review of tax claims and decisions with
a view to set aside or change decisions which under the law are final when made
by IRS. Similarly, such an audit of IRS woidd not entail any supervision of the
procedures followed in making tax determinations. This is not to say that our
3257
audit reports would not advise the Congress, if necessary, of weaknesses in pro-
cedures followed but we would not actually supervise these procedures."
Little difference, if any, can be discerned between the disclaimed "review of
tax claims and decisions" and an audit reporting to the Congress on the use by
IRS of appropriated funds in tax collection efforts including comments on "weak-
nesses in procedures followed in those efforts". Either would require a belief by
the GAO that it has an affirmative right to tell the IRS how IRS should be using
appropriated funds in its tax collection efforts, case by case.
The relationship among separate requests of the GAO for information ; the
specific review purposes the GAO has stated in making such requests and the
review aims stated by the GAO in its letter of November 1, li'Gs, demonstrates
that the GAO asserts its alleged review authority over the administration and
enforcement of tiie Internal Revenue Code in the broadest possible terms. (Later
herein several recent illustrative requests of the GAO will be discussed. )
The reviews sought by the GAO include examining specific tax returns ; delving
into audit and collection activities on a case by case basis, including the con-
version of such information to statistics, and from this reviewing the audit and
collection policies of the Service; analyzing the past application of Service
manpower, aud enforcement resources as related to the audit and collection re-
sults achieved; analyzing definitive IRS audit statistical studies of the dimen-
sion of the audit problems (the number of correct returns filed, the classification
of errors, and understatements of tax by tax type of return, income or expense) ;
and which classes of returns and return items should be subject to selection
for audit or not audited [selected or accepted as filed on a blanket basis, and
so forth]. The logical extension of this type of review would include a research
of management discretion analyzing the application of manpower and facilities
to the collection effort, on a current basis ; appraising the budget problem in
terms of the future size of the examining force, as related to the number of
returns anticipated ; evaluating guidelines and tolerances of litigation and settle-
ment policies, whether performed by the Tax Division of the Department of
Justice or the Chief Counsel's attorneys, and considering whether the Service
should have acquiesced in adverse court decisions which ultimately involves
administrative policies of settlement and litigation. In short, it follows logically
that the GAO review would include all phases of administration and enforce-
ment of the Internal Revenue Code. Examples later to be cited will be relevant
to these factors.
If the Commissioner's decision on a specific return is reviewable specifically
and in general terms of management analysis as proposed by the GAO, and if
such decision is a final judgment of taxes (as it would be), a logical extension
would include the principle that GAO should also review the decisions of the
Chief Counsel to appeal or not to appeal adverse court decisions and then com-
ment on whether the courts have correctly decided the cases.
These review factors show the basic impact of the Total review power claimed
by the GAO. Subsequent discussion will illustrate the concomitants of such a
review. As noted at the beginning of this memorandum, the administration and
enforcement of the Revenue Code has been confided by Congress to the Secretary
of the Treasury. On this premise alone, the GAO should recognize that it does
not have authority to review any of these discretionary and administrative
functions or to comment officially upon them.
It is apparent that the authority to review, audit and comment as proposed
by the GAO could effectively undercut the Secretary's authority to administer
and enforce the code.
There are additional factors showing that Congress never intended that the
GAO should have the review authority that it contends it has with respect to the
Internal Revenue Service. However, before commenting on these factors, atten-
tion is invited to several matters akin to the question here involved which have
in the past been considered by the Attorney General.
Prior Attorney General opinions in comparable situations
In 1924, Attorney General Harlan F. Stone considered, at the request of the
Treasury Department, the Comptroller General's contention that he had the
right to pass upon the correctness of duties collected by the Collector of Customs
on imported merchandise. Attorney General Stone concluded :
"Nowhere in the Tariff Act of 1922, or in the Budget and Accounting Act of
1921, has there been given to the Comptroller General the power of reviewing
the acts or decisions of the Collectors of Customs in the liquidation of entries
3258
of imported merchandise or the allowance and payment of drawbacks on draw-
buck entries. Nor has there been conferred upon the Comptroller General the
power to review or modify the regulations promulgated by the Secretary of the
Treasury for the administration of the Customs Laws.
"It is my opinion, therefore, that the Comptroller General is not clothed with
such reviewing power.
"Answering your specific questions I have the honor to advise you that:
"1. The Comptroller General has no statutory authority to require to be for-
warded to him any other papers relating to entries of imported merchandise
than those prescribed by the Secretary of the Treasury.
"2. The Comptroller General has no authority, express or implied, to review
the collectors' liquidations of entries of imported merchandise and drawback
entries." (34 0.A.G. (1024) 311,319.)
It is of significance that this decision was reached even though the Tariff
Act did not have any specific provision precluding review by the GAO. The
Comptroller General, disagreeing, carried the conflict to Congress. When it was
there proposed to pass an exemption statute similar to that in the Revenue Acts,
he concluded an arrangement with the Treasury which recognized that he could
not review Custom's findings of law and fact. The debates on the proposed
exemption statute evidence the congressional view that the Internal Revenue
Service was exempt from the GAO review (see House Report No. 1137, p. 24,
69th Congress, 1st session (1926) ; Senate Report No. 1026, 69th Congress, 1st
session (1926) : Senate Report No. 1650, 69th Congress, 2d session (1927) : 68
Congressional Record, p. 4975, 69th Congress, 2d session (1927) ; and 67 Congres-
sional Record, pp. 10,854, 10,988, 12,535 (1926) .
In another instance the Department of Justice issued an opinion concerning the
constitutionality of a revenue bill passed by Congress in 1932 providing the
Joint Committee on Internal Revenue Taxation with authority to make the final
decision on tax refunds in excess of $20 thousand. The bill was vetoed on the
recommendation of Attorney General Mitchell who stated in his opinion, 37
O.A.G. 56, 60, 61, 64, 65 (1933) :
"There are various ways in which refunds of illegally collected taxes may be
provided for. Congress, if it chooses, acting under the power to make appropria-
tions from the Public Treasury and the power to maintain the immunity of the
Federal Government from suit in the courts, may withhold the power to make
refunds from the executive branch and from the courts, and itself deal with the
subject by the method of making specific appropriations from time to time to pay
specific claims which it deems just. Dealt with in that manner, the authoriza-
tion of the refund constitutes a legislative act. If Congress confers jurisdiction
on the courts to examine such claims and award judgment against the Gov-
ernment, the function of allowance becomes a judicial act, although there still
remains the necessity for legislative action in the form of appropriations to pay
the judgments. Where, as under existing law, machinery has been set up in the
Treasury Department for administrative examination and allowance of these
claims by executive officers, the function of executing this law becomes an execu-
tive one and must be left with executive officers appointed not by the legislative
branch but by the Executive.
"It will be seen, therefore, that the matter of making refunds may involve
either legislative, executive, or judicial functions, depending on the system
adopted, but in the present case it is unnecessary to make any close analysis of
the nature of the function of refunding illegally collected taxes. If it be an
executive or judicial function, clearly a joint committee of the Congress may
not execute it, and if it is a legislative function it is equally clear that a joint
committee may not perform it. Action by a committee is not legislation, and
a committee of the Congress can not legislate.
***** * *
"* * * To acquiesce in legislation having a tendency to encroach upon the
executive authority results in establishing dangerous precedents.
* * * * * * *
"* * * Encroachments on the executive authority are not likely to be deliberate
but that very fact makes them all the more insidious."
Factors showing congressional intent not to permit the GAO to revieiv the ad-
ministration of the Interval Revenue Code
Tn addition to the broad principles already mentioned, there are specific fac-
tors which demonstrate that Congress did not intend the GAO to have the review
authority for which it contends with respect to the Internal Revenue Service.
3259
These factors are summarized as follows :
(1) Congress in section 6406 of the Internal Revenue Code of 1954 prohibits
the administrative review of decisions of the Secretary or his delegate upon the
merits of any claim presented or authorized by the Internal Revenue law, by any
other administrator, accounting officer, or employee of the United States, except
the review given by law to the Tax Court (when the law was passed the Tax
Court was considered an administrative tribunal). This law has been on the books
continuously since November 21, 1921, oniy several months after the effective date
of the Budget Act which created the GAO. This exemption was originally in-
serted, later made more specific and still later retained, with the specific pur-
pose of keeping the Comptroller General out of the administration and enforce-
ment of the Internal Revenue laws and codes. The exemption of section 6406 is
larger than merely a question of the GAO reviewing or commenting upon a single
claim. The enforcement and administration process on claims begins with the
Commissioner's decision to audit a specific return or accept it as filed. Obviously,
not all returns can be audited economically. There must be guidelines and toler-
ances for the audit and collection efforts. A decision pursuant to guidelines to
determine to accept certain classes of returns as filed, or after a cursory examina-
tion to accept a specific return as filed, is just as final, barring fraud, as a deci-
sion finding a refund or a deficiency. It is thus apparent from the outset that the
expenditure of manpower and Service resources of enforcement and administra-
tion, are inseparable from the Commissioner's determining the merits of claims.
(2) The Revenue laws since 1926 have charged the Joint Committee on Internal
Revenue Taxation with the continuous duty of investigating the administration
of the revenue (see sections S001 to 8023, inclusive, of the Internal Revenue
Code). The creation of the Joint Committee was made after a searching investi-
gation by the Couzens committee which started in 1924, only a few years after
the GAO was created, and while the predecessor to section 6406 and the customs
import duties conflict were before Congress.
(3) When Congress has desired to review the administration operation of the
revenue laws, it has acted through the Joint Committee, the House Ways and
Means Committee, the Senate Finance Committee, or specially designated com-
mittees or groups.
The above points are elaborated in the following :
( 1 ) The administration and enforcement of the Revenue Code in all phases is
specifically exempt by section 6406 of the code, from any review or audit bv
the GAO.
Section 6406 of the Internal Revenue Code prohibits the administrative review
of decisions of the Secretary or his delegate upon the merits of any claim pre-
sented or authorized by the Internal Revenue laws by any other administrative
or accounting officer or employee or agent of the United States, except the re-
view given by law to the Tax Court.
The wording of this statute and its legislative history, indicate the great
breadth of this exemption from administrative review and specifically from re-
view by the Comptroller General.
The Budget and Accounting Act of 1921, which became effective August 11,
1921, created "an establishment of the Government to be known as the General
Accounting Office and to be under the direction of the Comptroller General of the
United States," (31 U.S.C., sec. 41).
On September 15, 1921 (less than a month and a half after the effective date of
the Budget and Accounting Act), the Treasury spokesman pointed out to the
Congress the possibility of the duality of audit, when he said at a Senate Finance
Committee confidential hearing :
"I have a new provision with relation to claims for refund of taxes in the
Treasury Department. It is a thing that you can pass judgment upon very
quickly. The proposition is this : The new budget bill practically gives the right
to a final determination on on [sic] all claims against the Government. It puts
it in the hands of the Controller [sic] General. He has the final say on all claims.
The question is whether you want him to have the final say on all these technical
tax questions. In other words, you have a bureau up there which costs five, six,
seven, or eight million dollars a year. It is technical on the highest extreme. I
can not. think of the Controller General performing that work satisfactorily
without duplicating the machinery already provided."
Congress then passed the Revenue Act of 1921 (effective Nov. 21, 1921), which
in section 1313 enacted the wording requested by Treasury :
"That in the absence of fraud or mistake in mathematical calculation, the find-
ings of facts in and the decision of the Commissioner upon (or in case the Secre-
3260
tary is authorized to approve the same, then after such approval) the merits of
any claim presented under or authorized by the internal-revenue laws shall not
be subject to review by another administrative officer, employee, or agent of
the United States."
This section, except for minor changes, is now section 6406. The principle an-
nounced in 1921 has been followed in all subsequent revenue laws and codes.
Under the Revenue Act of 1921, a taxpayer could not contest his tax except by
paying the tax and suing for a refund. In effect be filed a '•claim" against the
Government. Today the same theorem of Revenue Service-taxpayer relationship
applies because to contest an assessment the taxpayer is the claimant and the
Commissioner or the district director is the respondent. In effect all litigation
involving internal revenue taxes involves a claim against the Revenue. The as-
sessment of tax by the Commissioner is prima facie correct.
In 1924 Congress amended this section by inserting the word "accounting"
between the words "administrative officer" so that the new section provided that
the findings of fact and the decisions of the Commissioner "shall not * * * be
subject to review by any other administrative or accounting officer, employee,
or agent of the United States." Section 1007. Revenue Act of 1924. The debates
show that. Congress intended the 1921 exemption statute to apply to tbe GAO
and that through oversight the word "accounting" had been left out and hence
it was being put back in the Revenue Act (Congressional Record, vol. 65, pt. 7,
p. 7141).
In 1926. Congress considered two other matters which emphasized that the
administration of the Internal Revenue laws is tbe exclusive responsibility of
the Secretary or his delegate. These are (1) the differences of opinion between
the Secretary and the Comptroller General regarding the determination of
customs duties, which has been discussed above, and (2) the creation of the Joint
Committee on Internal Revenue Taxation, which will be discussed under point 2
hereof.
Of even greater significance is the action taken by the Congress in enacting
the Revenue Act of 1928. The Senate had proposed a provision which would have
given review authority to the GAO because it read as follows :
All claims, rebates, refunds, compromises, set-offs, and credits in any form
whatsoever allowed by the Commissioner of Internal Revenue in excess of
$10,000 on account of income taxes shall be audited by the General Accounting
Office the same as other expenditures of the Government, notwithstanding the
provisions of any other law.
At conference the amendment proposed by the Senate was stricken. Con-
ference Report No. 1S82, dated May 25, 192S, states :
Amendment No. 200: The House bill made no change in the provisions of
existing law (section 1107 of the Revenue Act of 1926) [section 1107 was a suc-
cessor provision to section 1313 of the Revenue Act of 1921 and a predecessor
to section 6406 of the 1954 Code] prohibiting a review by the General Account-
ing Office of decisions by the Commissioner under the internal revenue laws.
The Senate amendment provides that all claims, refunds, etc.. allowed by the
Commissioner in excess of $10,000 shall be audited by the General Accounting
Office. The audit now accorded by the Bureau of Internal Revenue is entirely
adequate to protect the interests of the Government, and there is no necessity
for the Senate amendment ; and the Senate recedes, thus leaving 1101 applicable.
(Italic supplied.)
The significance of the action taken by the Congress is further emphasized
by the comments of Senator Howell who had proposed the amendment adopted
by the Senate. Senator Howell stated :
Mr. President, the expenditures of every department of Government, or
nearly every department of Government are audited by the Comptroller Gen-
eral, no matter how small the purchases may be. However, that is not true of
a division of the Treasury Department, the Bureau of Internal Revenue. Al-
though expenditures made by that department have involved billions of dollars
there is no audit whatever by the Comptroller General to determine whether
the expenditures are made according to law or in accord with the regulations.
Section 3220 of the Revised Statutes, as amended by section 1111, Act of
February 26, 1926, authorizes the Commissioner of Internal Revenue to remit.
■ refund, and pay back all taxes erroneously or illegally assessed or collected
without authority, and all taxes that appear to be unjustly assessed or excessive
in amount or any manner wrongfully collected. (Italic supplied.)
By rejecting the amendment the Congress preserved the independence of the
administration of the Revenue from review by the GAO.
3261
The purposes of two requests for review by GAO will illustrate the application
of section 6406 and its predecessors, and its prohibition against review by
the GAO.
in 1967, the Comptroller General requested that the dollar amount of State
Income taxes claimed as deductions in the income tax returns for certain years
iiied by 143 named taxpayers. As he said, "The data will assist us in making a
further analysis of the 143 taxpayers' income reporting practices and in reach-
ing a final conclusion in this matter," which was that his office "was making
a review of Internal Revenue Service procedures and controls relating to tax-
payer's reporting of State individual tax income on Federal tax returns."
In short, the returns of these 143 taxpayers and the Service's action as to them
were to be a statistical study from which the GAO would draw large conclusions.
The point is that they were going to review the merits of each of these returns
and the Commissioner's action or inaction with respect to them and what man-
agement decision he had made, if any, concerning the audit of this class of
income and deduction item.
Any meaningful analysis designed to show the dollar amount of State tax re-
funds reported or not reported, as related to dollar volume of itemized state tax
deductions taken, would require complete return information. Otherwise, the
analysis would have no meaning in relation to audit controls. Essentially, this
review would constitute at a minimum a comparative analysis of return informa-
tion. If that was not sufficient, then an office audit of the 1963 and 1964 returns
would be required. Finally, a full-scale audit of the returns might be required.
There is no difference between this type of review and a review of administrative
guidelines and tolerances ; or of general audit procedures ; of the audit of
general classes of returns or general classes of items in returns or of the audit of
specific returns or review of the effectiveness of collection policies and proce-
dures; or the review of the settlement of cases, offers in compromise, refunds,
et cetera.
The GAO subsequently made a request for Service research material for the
same type of review noted above, but involving much wider vistas. The informa-
tion sought was an interim report of a comprehensive research project known as
the taxpayer compliance measurement program. The GAO representative asked
for the report to assist them "in planning and scheduling review of Internal Reve-
nue Service operations."
The informational aspects of TCMP include bringing together and coordinating
into one integrated system all data and reports required to measure the dimen-
sions of and trends in Federal tax administration workloads; to establish the
related requirements, such as manpower, training, equipment, and buildings ; and
r<> analyze the basic economics involved, such as total and marginal costs, and
direct and indirect tax yields.
The individual income tax phase used on a probability sample (92,000) of the
61 million 1963 individual returns filed in 1964. Each individual return drawn by
the sampling was thoroughly examined by an experienced examining officer.
The instant report among other matters reflects: (1) The size of the audit
problem, (2) the audit problem by class of return, and (3) some aspects of the
audit problem by source of errors.
It was necessitated by the volume of returns filed. But if there were only one
return filed and there were only one revenue examiner, the problem would be the
same. Would the tax shown on that return require an examination; and how
much should the employee be paid, considering the income yield?
The concept is simplicity itself. If the Service cannot audit all of 70 million
returns, then which of those 70 million returns will be accepted as filed, or
which will be examined? This basic problem is followed by many variations.
The operation of a system of taxation is a unique function in that it is a
welding of assessment, collection, refund, and the cost of discharging these
functions. It requires a final determination of tax. either by acceptance of a
return as filed, or by examination, or resort to the courts.
Congress has wisely recognized that no static taxation system can be success-
fully applied to the myriad types of financial enterprises of a complicated and
constantly evolving industrial society. Accordingly, it has given the Com-
missioner broad authority to issue regulations and adopt policies which supply
the necessary details and which accommodate for the dynamics of change.
Part and parcel of the system are guidelines and tolerances, which include
Litigating policy : guides as to those classes of returns, or items in returns which
should be examined or not examined ; compromise policies and so forth. The
3262
necessity for new legislation is a part of revenue administration. We do not
here pretend to delineate all of these interrelated and inseparable elements of
revenue administration.
Section 6406 has the same effectiveness here. Additionally, the basic question
could very well occur to GAO ; namely, to test the 92,000 tax examinations
upon which the report is based.
It is clear that this particular TCMP report is useful only in reviewing present
operations, and budgeting and planning for the future; in fact, the complete
administration and enforcement of the Revenue Code.
(2) The Revenue laws since 1926 have charged the Joint Committee on
Internal Revenue Taxation with the continuous duty of investigating the ad-
ministration of the revemie.
The establishment of the Joint Committee on Internal Revenue Taxation
further emphasizes congressional intent to exclude the Comptroller General
from exercising any supervision over the administration of the revenue laws.
In 1924, Congress created the Couzens committee to investigate the Bureau
of Internal Revenue.
This committee examined the same type of subjects in general, as covered by
the two case illustrations above noted.
The joint committee is the successor to the Couzens committee.
It is helpful to examine the type of review performed by the Couzens committee.
(All references are to the Couzens committee report known as "Senate Rept.
No. 27, 69th Congress, 1st Session, parts 1, 2, and 3; and the hearings, in 69th
Congress, 1st session, Investigation of Bureau of Internal Revenue 1924, 26,
parts 1 through 5.")
Previously mentioned was the basic factor of the filing of a return by a
single and only taxpayer and the auditing of that specific return as related to
the filing of millions of returns requiring guidelines and audit tolerances to
reduce the work load to economic dimensions.
The Couzens committee fully recognized this factor, at page 230 of part 1
of its report, as follows :
"By vesting all discretionary powers under the revenue acts in the commis-
sioner, Congress clearly evidenced an intention to hold him solely responsible for
the exercise of all delegated powers. If the commissioner is to exercise the author-
ity vested in him by the revenue acts, and is to be responsible for the administra-
tion of the law, all rules interpreting the law and providing for its application to
particular cases should be personally approved by him in writing.
"While it may be assumed that Congress did not intend that the commissioner
should pass on individual cases, it must be assumed that the revenue acts do
contemplate that he shall determine the principles, rules, and formula which
shall be applied by his subordinates. If this task is too great to be performed by
one man, Congress should create a board or commissioner of several members to
exercise the authority now vested in the Commissioner."
The committee investigated and reported on policies, or lack of them, guide-
lines, procedures of the Bureau of Internal Revemie concerning amortization, de-
pletion, compromise, et cetera. Among other matters, the committee also dealt
with the following types of subjects :
Statistical studies of enforcement
Study made by committee showed marked year to year increase in variations
of taxable income reported, particularly by those in higher brackets and extent
income was not reported (rept. pt. 1. p. 2).
During years 1917 to 1925. the Bui-eau collected and accounted for 30 billion
dollars in taxes; and determined and collected 2.8 billion in additional taxes, at
an average cost of $1 per $100 collected (rept. pt. 3 (minority) p. 22).
Bureau income statistics did not adequately reflect the effect of provisions of
the Revenue Acts; therefore, the committee assembled its own statistics from
original returns. In fact, one purpose was to determine how different classes of
deductions affected net taxable income (rept. pt. 2, p. 3).
Manpower — operation
In reviewing the various steps of the Bureau's function, beginning with the
revenue agents' audit of a return, the minority report found that every step had
been taken to protect the Government's interest (rept. pt. 3 (minority), p. 20).
The number of cases, 3, 4, and 5 years old. was increasing because of the tend-
ency of setting up fictitious claims to serve as a bargaining and compromise
3263
basis, whereas law contemplated assessment and not bargaining (rept. pt. 1,
p. 238).
Discussion in hearings of returns audited, and not audited — gtiidelines on re-
turns coming to Washington for audit (hearings, pt. I— II, p. 77).
It. is significant that Congress did not then call in or rely upon or mention the
GAO as an agency to investigate the revenue administration.
In fact, as will be demonstrated, it even reserved to Members of Congress —
iudeed, Ways and Means and Finance Committee members — the duty of in-
\ est i gating the revenue.
The Revenue Act of 1026 as proposed in the House in December 1925 pro-
vided for the establishment of a joint commission to review the operation ami
administration of the Bureau of Internal Revenue (67 Cong. Rec., p. 525 ) • This
commission was to have fifteen members: Five to lie chosen from the Senate, live
from the House, and five to be selected by the President from the general public.
The commission was to expire on December 31, 1!)27.
On January 30, 1920, the Senate debated that section of the proposed act creat-
ing the Commission on Internal Revenue and the Finance Committee suggestion
(bat provision be made for a permanent Joint Committee on Internal Revenue
Taxation. Significantly, their proposal eliminated the five public members and
in lieu thereof proposed (and the committee was ultimately constituted in this
way) five members from the House Ways and Means Committee and five members
from the Senate Finance Committee (67 Cong. Rec. 3021). One Senator queried
whether it would not be better to have experts, nol Members of Congress. Senator
Smoot pointed out that while the committee could employ outside experts, the
committee could call upon Treasury for expert assistance. It was his feeling,
and that of Senator Couzens, that there should be no outside members on the
Committee (67 Cong. Rec. 3021 ) . Ultimately the proposal became law.
Apparently Congress felt the need for creating from those of its membership
concerned with taxation a body charged with the responsibility of investigating
the operation and administration of internal revenue.
At another point, Senator Norris favored an amendment to insure that an em-
ployee of the Bureau of Internal Revenue would not be prohibited from com-
plaining to any Member of Congress (67 Con. Rec. 3872). Senator Reed, in de-
bating this issue, noted that the joint committee would be authorized with
■ •* * * power to investigate any and every return, to go into every audit and
paper in the Bureau, to question any employee, to get any information he pleases
* * *. It. will have all the power that the so-called Couzens committee had. and
if it does not do its duty the Senate or the House of Representatives can call it
to account * * *" (67 Cong. Rec. 3873).
When it created the Joint Committee on Internal Revenue in 1926, the Congress
set up a special investigation body to oversee the operation and administration
of the Internal Revenue Act and codes to the exclusion of the General Account-
ing Office which it had just created a few years previously. There was no inten-
tion on the part of Congress to release any of the broad investigating and infor-
mation gathering powers of the Joint Committee to the GAO.
Furthermore, the foregoing illustrates how Congress defined the exclusive
functions of the Commissioner as well as the all-inclusive nature of Congress'
review through the Joint Committee. In actual fact, the internal revenue laws
of those and succeeding years speak for themselves in evidencing the exclusive
jurisdictions of an original action by the Commissioner and review by Congress.
Incidentally, the Joint Committee does not have the statutory authority to
set aside tax refunds proposed by the Internal Revenue Service. Reference has
been made to the bill passed by Congress in 1932 by which the Joint Committee
would have been authorized to make the final decision on refunds of taxes pro-
posed by the Commissioner in amounts exceeding $20,000, and vetoed by the
President because of the Attorney General's opinion to the effect that the func-
tion of executing must be left to the executive officers. This veto was not over-
ridden by Congress. Investigative authority of the Joint Committee has not been
changed since its creation in 1926. So here Congress itself agreed that the final
decision is with the Commissioner, thus recognizing the constitutional principle
of separation of powers. In the area of withholding credit or refund until after
the matter has been before the Joint Committee for 30 days, the Congress
through the Joint Committee and the Commissioner have established together
a working relationship which is advisory in nature. This is characterized by the
mutual forbearance that must necessarily be exercised between equal branches of
3264
the Government. Congress can, of course, take away or amend any taxing
authority.
Shortly after the Revenue Act of 1926 became effective, the Joint Committee
organized. Bv the middle of November 1927, it submitted its report of some
365 pages to the House Ways and Means and Senate Finance Committee. The
subjects of its inquiry were as many and as varied as its characterization of the
investigation; that is. the "operations, effects, and administration of the income
tax." The report includes statistics on collection cost and personnel.
Then, as today, of primary concern to the Congress, the Joint Committee and
the administration of the revenue, was the cost of collecting taxes. Although in
1927 this subject was referred to as "job selection" for the income tax unit in the
auditing of returns, and today it is spoken of in terms of "dimensions of and
trends in Federal tax workloads," the problem remains the same. Which returns
should be audited and under what guidelines and tolerances?
"The comptometer process is, in fact, the so-called preliminary audit, but the
term 'preliminary audit' is directed at this time to a wider range of effort. Today
it means also 'job selection.' This means that instead of looking upon the job for a
current year as an intensive audit of all returns filed, the appropriate representa-
tives of the unit (revenue agents) familiar with local conditions, and who in
many instances have conducted investigations of the taxpayers for prior years,
now survey all the returns that are to be forwarded to Washington for the
purpose of' segregating them into the following classifications: Accepted,' 'Office
audit.' and "Field audit.'
* * * * * * *
"As a consequence of the preliminary audit, the bureau, within a few months
after the returns of the current year have been filed, has selected as the job
of the Income Tax Unit -for audit about 25 per cent of the returns, and 75 per
cent have been closed. The confusion incident to an attempt, under the lengthy
procedure previously followed, to handle the great number of returns has been
eliminated, and the job is found to be an intensive audit, not of 1,200,000 returns,
but of 600,000 returns." (Emphasis supplied).
(The report of joint committee dated Nov. 15, 1927, vol. Ill, p. 28.)
(3) When Congress has desired to review the administration operation of
the revenue laws it has acted through the Joint Committee, the House Ways
and Means Committee, the Senate Finance Committee, or specially designated
committees or groups.
The Legislative Reorganization Act of 1946 which while not dealing with or
changing jurisdiction of the Joint Committee on Internal Revenue Taxation,
provided for "legislative oversight by standing committees" of the administra-
tion of executive agencies, and referred to limited functions of the GAO concern-
ing "expenditure analyses." Incidentally, as will be explained later, this last
provision, according to the GAO. was never effective.
The provision for "legislative oversight" by standing committees is as follows :
LEGISLATIVE OVERSIGHT BY STANDING COMMITTEES
"Sec. 136. To assist the Congress in appraising the administration of the
laws and in developing such amendments or related legislation as it may deem
necessary, each standing committee of the Senate and the House of Representa-
tives shall exercise continuous watchfulness of the execution by the adminis-
trative agencies concerned of any laws, the subject matter of which is within
the jurisdiction of such committee ; and, for that purpose, shall study all pertinent
reports and data submitted to the Congress by the agencies in the executive
branch of the Government." (60 Stat. 832).
Under this law, the Appropriations Committee was authorized to conduct
studies of the organization and operation of any executive agency (60 Stat. 832).
The report of the Senate Special Committee on the Organization of Congress.
stated that the bill was designpd to strengthen "congressional surveillance."
through standing committees, of the execution of laws by agencies within their
jurisdiction.
While the report uses the term "congressional surveillance," the laws as
finally amended in the Senate provided for "continuous watchfulness." The
debates made clear that Congress did not wish to interfere with the executive, nor
to make itself an "adjunct" to the executive department, nor to reverse adminis-
trative decisions. Congress intended only to observe "watchfulness" to make
improvements through needed legislation. There was no intent to create a "spy
32(55
system." In fact, one Senator stated that he was " * * * opposed to the use of
the word 'review,' because * * * that would be * * * placing- both the privilege
and the responsibility on the Congress of practically undertaking to administer
the laws which it enacts." (92 Cong. Record 6446).
Contrast this with statutory power of the permanent Joint Committee to
"review" the operation and administration of the revenue. Senator La Follette
(the sponsor of the bill) said that the reorganization did not affect the Joint
Committee (92 Cong. Record 6395). It is traditional that the Joint Committee
has continuous contact with the Service.
Congress intended that these standing committees would be in touch with the
executive agencies to cooperate, exchange views, and gather information to
insure proper administration of the laws (02 Cong. Record (5455).
A signal purpose was to avoid the appointment of special investigative com-
mittees. Of course, both the Ways and Means and Finance Committees have
jurisdiction of revenue. The Joint Committee long before 1946 had cognizance
of the Internal Revenue Service. The Legislative Reorganization Act as above
indicated did not affect the Joint Committee.
The Joint Committee has the broader permanent authority to gather informa-
tion and to review.
One other matter remains lor discussion. From Mr. Keller's presentation of
May 23, 1972. I gather that he is of the impression that the Service has the
discretion to allow the General Accounting Office to have general access to income
returns and other returns enumerated in section 610:3. He cites certain regula-
tions. These are regulations approved and promulgated by the President and
not by the Secretary or his delegate. They were issued with appropriate Execu-
tive orders which allow general inspection by the Department of Commerce, the
Department of Health, Education, and Welfare, the Advisory Committee on
Intergovernmental Relations, the Federal Trade Commission, the Renegotiation
Board, the Securities and Exchange Commission. These general inspection rights
are allowed only for specific official purposes. For example, the Commerce
Department may procure general access to income returns for statistical pur-
poses only, which means, according to the restriction in the regulations, that
such use shall not reveal directly or indirectly the name and address of any
taxpayer. If the Commerce Department wishes to use an income tax return for
any other purpose than statistical, the Secretary of Commerce under section
0103(a) (1) (f) of the regulations must make a written request to the Commis-
sioner specifying the name of the particular taxpayer whose return is desired
for inspection. The General Accounting Office for a matter officially before it
may be similarly granted inspection of a return of a given taxpayer. However.
even if a law were passed giving the General Accounting Office statutory author-
ity to review the administration of the Internal Revenue Service, the Service
would not. have the authority to allow that office to have general access to
income returns and files. General access could be granted only upon the promul-
gation of an appropriate Executive order and regulation by the President. Certain
specified committees of Congress, including the Joint Committee on Internal
Revenue Taxation, have the right to general inspection as provided in section
0103 td) of the code. Obviously, if the General Accounting Office is acting as
the duly authorized agent of the committee, then it may procure general access
under the statutory authority enjoyed by the Joint Committee.
Of course, Congress may enact a law specifically amending section 6103 to
grant access to the General Accounting Office. It has given access to the House
Ways and Means Committee, the Senate Finance Committee, and certain select
committees. Also, Congress has given by statute inspection rights to States for
tax purposes, and to corporation shareholders.
Under our present position and the law we could not recommend that the
President promulgate an executive order and regulation which would allow gen-
eral access to the General Accounting Office for review of the revenue admin-
istration, because that review is not a matter officially before it.
Conclusion
The GAO's claimed right of review encompasses the full gamut of revenue
administration — that is all areas of management analysis, decision, and discre-
tion from the first point of determining whether to examine a return to and
through all phases of enforcement even including current and long-range budget-
ing and planning. Such review right could effectively eliminate the executive
function.
3266
It is concluded, as first noted, that in view of the exclusive authority given to
the Secretary of the Treasury or his delegates to administer and enforce the
Internal Revenue Code, the GAO does not have the right, authority, or responsi-
bility to review or audit or officially comment upon such administration and
enforcement, save possibly in the area of some types of housekeeping activities.
Additionally the specific exemption of section 6406 of the code, plus the wealth
of material referenced, emphasizes these conclusions.
L. H. Henkel, Jr.
Acting Chief Counsel.
J. Walter Feigenbaum,
Director, General Litigation Division Office of Chief Counsel.
Jean G. Guise, Jr.
Chief, Disclosure and Summons Enforcement Branch General Litigation
Division Office of Chief Counsel.
EXHIBIT B
Congress of the United States,
Joint Committee on Internal Revenue Taxation,
Washington, D.C., January 13, 1971.
Hon. Randolph Thrower,
Commissioner, Internal Revenue Service,
Washington, D.C.
Hon. Elmer B. Staats,
Comptroller General, General Accounting Office,
Washington, D.C.
Dear Messrs. Thrower and Staats : As you know, the Joint Committee on
Internal Revenue Taxation has the duty under section 8022 of the Internal
Revenue Code of investigating the operation, effects, and administration of the
Federal tax system. To assist the Joint Committee in carrying out this duty, it
would like to have the General Accounting Office act as the agent of the Joint
Committee in performing certain reviews of the operations, policies, and proce-
dures of the Internal Revenue Service.
If the General Accounting Office is able to carry on this activity as the agent
of the Joint Committee, the committee would like to proceed in the following
manner :
1. The Joint Committee, ordinarily after consultation with the Commissioner,
will authorize the General Accounting Office to act as its agent to make a par-
ticular study, under the authority of chapter 92 and section 6103(d) (2) of the
Internal Revenue Code of 1954.
2. The Staff of the Joint Committee will then counsel with representatives of
the General Accounting Office and the Internal Revenue Service regarding the
manner in which the study is to be carried out. It is contemplated that the plan
for the study will be reviewed by the General Accounting Office with the Joint
Committee staff and the Commissioner or his designated representatives before
the study is begun. To avoid unnecessary duplication of effort, the General
Accounting Office will to the extent appropriate review and utilize pertinent in-
formation from prior studies on the same subject, such as studies performed by
the Assistant Commissioner (Inspection), which are brought to its attention by
the Internal Revenue Service.
3. For each study, the Comptroller General will designate the personnel of the
General Accounting Office who are to perform the study on behalf of the Joint
Committee, and will supply a list of such personnel to the Commissioner and to
the staff of the Joint Committee.
4. During the course of the study, representatives of the General Accounting
Office will periodically consult with the Staff of the Joint Committee as to the
progress of the study and any problems which are encountered. In addition,
representatives of the Internal Revenue Service will advise the Staff of the Joint
Committee if the study is producing unanticipated demands upon the time of
Internal Revenue Service personnel.
. 5. The draft report resulting from the study will be submitted to the Internal
Revenue Service (as is normally done in the case of General Accounting Office
studies of Internal Revenue Service matters) and to the Staff of the Joint
Committee.
3267
6. The final report will be .submitted only to the Joint Committee, but ordinarily
with a confidential copy to the Commissioner, and no release of the report or any
of its contents will be made except by the Joint Committee.
It is understood that the General Accounting Office may inspect tax returns
and other confidential information, where appropriate to the conduct of a study
authorized by the Joint Committee and where it is acting in its capacity as the
agent of the Joint Committee, pursuant to chapter 92 and section 6103(d) (2) of
the Internal Revenue Code of 1954. It is further understood that none of the
information obtained from the Internal Revenue Service by the General Account-
ing Office in its capacity as agent of the Joint Committee will be used in any
report of any other General Accounting Office study which has not been authorized
by the Joint Committee, unless the Joint Committee authorizes such use.
It is not intended that the studies which the Joint Committee contemplates
having done by the General Accounting office are to involve the reconsideration
Of tax assessments or collections made by the Internal Revenue Service in indi-
vidual cases. Rather, the studies are to be concerned with the policies and pro-
cedures which have been established by the Revenue Service in the area under
consideration, and the effectiveness of those policies and procedures in obtaining
the desired goals.
Unless authorized by the Joint Committee to do so, the General Accounting
office will not contact any taxpayers concerning their dealings with the Internal
Revenue Service ; if such contacts are authorized, General Accounting Office
personnel will advise the taxpayers they contact that they are acting on behalf
of the Joint Committee. Additionally, plans for contacting taxpayers ordinarily
will be reviewed in advance with the Internal Revenue Service to minimize tax-
payer relations problems that might be created by such contacts.
I would appreciate hearing from you, Mr. Comptroller General, as to whether
the General Accounting Office will be able to conduct such studies as an agent
of the Joint Committee, and from both of you as to whether the above procedures
are satisfactory from your point of view. I am sending a copy of this letter
to the Secretary of the Treasury.
The enclosed letter describes the first study the Joint Committee would like
the General Accounting Office to undertake.
Sincerely yours,
Laurence N. Woodworth.
Congress of the United States,
Joint Committee on Internal Revenue Taxation,
Washington, B.C., January 13, 1911.
Hon. Elmeb B. Staats.
Comptroller General,
General Accounting Office,
Washington, D.C.
Dear Mr. Staats : The Joint Committee hereby requests and authorizes the
General Accounting Office to undertake a study concerning the policies and pro-
cedures established by the Internal Revenue Service in connection with the
handling and collection of taxpayers' delinquent accounts. This study is to be
conducted in accordance with the understanding set forth in my letter dated
January 13. 1971, to you and the Commissioner of Internal Revenue. In order to
achieve the objectives of this study, it is contemplated that the General Account-
ing Office will examine into :
1. The effectiveness of Internal Revenue Service programs to collect past due
accounts.
2. The equities of collection procedures as applied to all taxpayers.
3. The policies and practices in regard to delinquent accounts considered
currently uncollectible.
4. The policies and practices in regard to offers in compromise.
5. What changes, if any, in policies or practices need be considered to reduce
the number of delinquent accounts.
6. The adequacy of the resources devoted to carrying out the Internal Revenue
Service's responsibilities in regard to the collection of delinquent accounts.
I would appreciate it if you would arrange a meeting in the near future be-
tween representatives of the General Accounting Office, the Internal Revenue
Service, and the staff of the Joint Committee, to discuss the manner in which
this study of delinquent account policies and procedures will be carried out. The
3268
Joint Committee also has requested that your office submit reports from time to
time of the probable cost of the investigation contemplated together with the
potential benefit therefrom.
Sincerely yours,
Laurence N. Woodworth.
Mr. "Walters. In summary, Mr. Chairman, I would like to make
just two or three further statements.
First, no one at IES objects to the exercise by GAO of all normal
audit functions to insure the integrity of our accounts, compliance with
the statutory appropriations limitations, and obedience to all laws
relating to personnel, purchasing, and other nontax matters.
By law, the Secretary and the Commissioner have responsibilities
for making operating decisions. By lavr, the Joint Committee on In-
ternal Eevenue Taxation is designated as the agency for overseeing
the operations of IRS; and, as already indicated, it is perfectly proper
and feasible for the Joint Committee to review our administration and
operations through an agent, including GAO.
By law, tax decisions of the Commissioner and the Internal Eevenue
Service are not reviewable by GAO at present, Of course, the legal
questions, as we indicated earlier, are reviewable by the courts ; and
the conduct of our responsibility is consistently under review by the
courts.
We appreciate the opportunity of returning today to present our
position on this important question, and we will be pleased, in any
way we can, to respond to your inquiries, sir.
Mr. Moorhead. Mr. Commissioner, we thank you very much. I
think that your statement has illuminated the issues which the sub-
committee and the Congress in general should be focusing on.
I do want to make it clear that, as you said on page 3 of your testi-
mony, this is new to you and Mr. Henkel ; and if we disagree with
you, I hope you understand this is nothing personal. This controversy
has been going on for many years before your administration, and the
issue is not whether you were trying to hide your particular adminis-
tration of the tax laws from GAO. This is purely an issue of what is
proper government and what is proper construction of the Laws. That
is the only issue. It is nothing critical of you personally. I just want
to assure you of that, sir.
Mr. Walters. We appreciate that, Mr. Chairman, and we realize,
as you do, that this lias been a longrunning question. And, frankly,
we appreciate the Committee looking at it because too much time has
been consumed in debating the issue, not here, but you might say
over the years, as to whether we can or we cannot ; and we would very
much like to see the issue resolved finally one way or the other.
And we think that the position we are taking, as the law stands, is
right, But it does need to be resolved, and we think it is good that you
are looking at it, sir.
Mr. Moorhead. Well, I appreciate your feeling that way. That is
just the way that I construe it. We might differ in the result, but I
think we would agree that there should be a clear decision made so
that we will not be going through this in the future. I think it is ex-
tremely important, as far as the country and the people are concerned,
that they have total and absolute confidence in the Internal Eevenue
Service, And if they have that confidence, with the oversight of the
Joint Committee and the arrangement of the Joint Committee and the
3269
GAO, that is one thing. If they believe that there should be oversight
on what I will call the "overall efficiency and economy of the Internal
Revenue Service," in addition, then, we should act that way. That
is the purpose of this hearing; to clear this up.
I am disturbed by a statement that you make on page 3 of your
testimony where you talk about the statutory exemption of the IRS
from review, and then you say "a possible encroachment on the separ-
ation of powers among the branches of Government." Do you really
mean that ?
Mr. Walters. Yes, sir. Let me say, the statutory exemption from
review does not include the Joint Committee because, as we see it,
the Joint Committee lias been designated by the Congress as its organi-
zation or arm that will review us. And they do.
And, of course, we welcome this, because we need review.
Mr. Moorhead. But if you are talking about separation of powers
among the branches of Government, the Joint Committee would be
just as much of an encroachment on the executive branch as the GAO.
It is just that the Congress, if your legal position is correct, has de-
cided to use this particular technique of "encroaching" rather than
another technique. I mean, I do not believe that there is a constitu-
tional issue which appears to come out of your statement on page 3.
Mr. Walters. I think I would turn to counsel on that.
Do you have any response ?
Mr. Henkel. Yes, I would like to respond to that, if I could. I think
it is significant to look at a proposal— just a minute, until I get to it
in my notes, please, sir.
In the 1932 Revenue Act, there was a proposal passed by Congress
which would allow the Joint Committee to make decisions on refunds
in excess of $20,000. This was vetoed by the President and not over-
ridden, pursuant to an opinion by Attorney General Mitchell at the
time to the effect that the Congress could pass revenue laws and de-
termine as they passed the law that they, themselves, would admin-
ister the law.
His opinion went on to say that they could also pass a revenue law
and determine that the courts would administer the law.
Mr. Moorhead. You are making my point, sir — really. We are sug-
gesting that the GAO should do no more, really considerably less,
than the Joint Committee. We are not suggesting that GAO admin-
ister your laws. We are merely saying that if the Congress can have
oversight through the Joint Committee, the Congress could elect to
have additional or replacement oversight by the GAO, all without
encroachment on the separation of powers of the Government. We
are not, again
Mr. Henkel. To that specific point, sir, let me make this simple
comparison, and maybe this will explain the way we feel on that score.
Let us suppose thorp were just two returns and that was the whole
revenue system, and, pursuant to the authority that the Secretary and
the Commissioner have, they determined to audit return A but to leave
return B stand just as it was filed. Now, that is the administration of
the revenue laws.
Now. if an agency were permitted to come in after this decision
was made and say: "Mr. Commissioner, you should have done just
76-253— 72— pt. 8 22
3270
the opposite; you should have accepted A and audited B, and you
should do this in the future.''
I think that is effectively administering the revenue laws thereafter,
and that is exactly the point we make, a post review of the decisions
and then suggestions for the future, or reports as to how it should be
administered in the future, which is effective administration of the
revenue laws, and you
Mr. Moorhead. And the Joint Committee cannot do that?
Mr. Henkel. The Joint Committee has the power to review specif-
ically by statute, and certainly they may.
Mr. Moorhead. Then, it is not a question of encroachment on the
separation of powers. If one committee of Congress can do it, then
another a£oncv of Congress can do it ; right?
Mr. Henkel. Well-
Mr. Moorhead. At least, constitutionally? I am not talking about
under
Mr. Henkel. The Attorney General in his opinion in 1932 made the
point that it was a question of separation of powers.
Mr. Moorhead. Well, but you again miss my point. I am not saying
that the GAG can do any more than the Joint Committee. I am jnst
saying that if the Joint Taxation Committee can constitutionally
exercise its authority, then the Congress can constitutionally ask the
GAG to do the same or similar thing ; right ?
Mr. Horton. If the gentleman will yield ?
I think what you are saying is that the Joint Committee, if there
is any encroachment, is encroaching?
Mr. Henkel. That is correct.
Mr. Horton. Now, do you agree or do you disagree with regard to
an encroachment by the Joint Committee ?
Mr. Henkel. Well, let me make the point — I see I have not made my
point clear.
Mr. Horton. You have not made the point clear, and I really do not
see it. I think it is an unfortunate use of terminology to talk in terms
of a possible encroachment in reference to a separation of powers issue.
Mr. Henkel. Let me explain it this way
Mr. Horton. I agree with the chairman on that.
Mr. Henkel. All right, sir.
Tot me explain it this way : We do not question the fact that Con-
gross can enact a revenue law and have it administered any way they
see fit. It could have it administered by the legislative branch if they
saw fit in the first place. But the Attorney General said "Gnce a rev-
enue law is passed and the duty to administer it is put in an executive
agency, then if Congress, without further power, come in and ad-
minister it, you do get into the separation doctrine."
Mr. Horton. You are not talking about administration; GAG is
not an administrative agency. Congress is not an administrative agency.
Nobody is talking about administering the Internal Revenue Code or
the provisions of the Internal Revenue Act. Nobody is talking about
taking away the act of or interfering in administration, as you are
talking about when you talk about the possible encroachment.
Are you suggesting that GAG might be engaged in administration
! >y the action that they take ?
Is that what you are saying?
3271
Mr. Henkel. Yes.
Mr. Walters. Yes, Mr. Chairman, yes. Tliat is exactly what we
are saying, that if they were to get in and review, actually get into
this thing to the extent they have indicated that they wish, they would
be reviewing the administration and operation of the internal revenue
laws, and the law, as it stands, we do not think makes that permissible.
Now, let me say, Mr. Chairman, turning back to the point we
started out on until we got off on this side discussion. If Congress were
to decide to substitute GAO for the joint committee, we would see
no objection to that. This is something for Congress to decide. Hav-
ing decided as it did in the early 1920's, then we think that Congress
clearly indicated who was to oversee us on behalf of the Congress
and excluded everybody else.
Mr. Horton. Well, 1 will want to talk to you later about that state-
ment. I do not want to let that stand as it is.
Mr. Moorhead. Go ahead.
Mr. Horton. But I want you to go ahead and finish your questioning.
Mr. Moorhead. Go ahead, Mr. Horton.
Air. Horton. Again, I want to emphasize that when you have talked
here about possible encroachment, you are talking about the GAO
administering, and the GAO is not going to be administering your
agency.
Mr. Walters. But, Mr. Horton, going back to the example that Mr.
Henkel used, when you have an agency that is supposed to exercise its
independent judgment in administering a law and then you have some-
one else sit on top of them and say "Look, you are doing this wrong ; do
it this way," then, you get into the question : "Who is administering?"
Mr. Horton. All right, now. But the point is — and this is a well-
established legal precedent — and I would assume that your counsel
would agree with this — that the power to the legislature includes
power of oversight.
In other words, when we pass a law and say for you to administer
that law, that does not mean that you go off in the corner and do what-
ever you want to do.
Mr. Walters. Right ; we agree.
Mr. Horton. Well, no, that is not what you are saying, because you
are saying that the Congress cannot, through its duly authorized
agency, namely, the General Accounting Office, come in and exercise
this oversight.
Mr. Walters. Xo, sir; we are not saying that.
Mr. Horton. You are also saying that this Government Operations
Committee cannot do that, but we have the authority to do that.
Mr. Walters. Xo. sir ; we flatly disagree.
What we are saying, Mr. Horton
Mr. Horton. Well, your point is very fine, and I wish you would
make it, because I do not get it.
Mr. Walters. Let me try again.
Mr. Horton. All right.
Mr. Walters. What we are saying — and we agree with you — is
that we are subject to legislative oversight.
What we are saying is that the Congress determined many years
ago who would do that for the Congress and how it would do it, and
you named the joint committee.
3272
You also said specifically that nobody else would do it, and Ave say
that to be responsible in doing what you have told us to do
Mr. Horton. Well, OK. Now, I think I ought to make a point here
which should be made. I do not find in any statement that you have
presented here today, a citation of the authority that supports your
action in excluding the General Accounting Office.
Maybe what you say is true, and let us accept it from a legal stand-
point, that the joint committee does have the authority that you say
it has. But the law does not say that it has exclusive authority, and
therefore, the General Accounting Office is prohibited from doing this.
Now, there is no place that says that. I would like to read into the
record here the basic authority for the General Accounting Office,
which as you understand, I am sure, is an agency of the Congress
Mr. Walters. Yes, sir.
Mr. Horton (continuing). To perform oversight authority. We
could do it ourselves without them, and we did it before the General
Accounting Office was set up. But the General Accounting Office
was set up as an arm of the Congress, and it is a congressional arm.
The Comptroller General is appointed for 14 years, and he is not
subject to the whims of the Executive. It is quite an unusual agency.
It is not a part of the executive branch; it is a part, of the legislative
branch, and I am sure you understand that.
Mr. Walters. Yes, sir ; perfectly.
Mr. Horton. In section 313 of the Budget and Accounting Act of
1921, 31 U.S.C. 53, 54, it says 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 them ; and the Comptroller General, 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.
Now, that is the basic authority of the General Accounting Office
to function, and my position is that unless — and I am talking now
strictly from a legal standpoint — that unless the Congress has specifi-
cally exempted the Internal Revenue Service, that law pertains to the
Internal Revenue Service like it pertains to any other agency.
Now. what, you have said is, in essence — and I am again emphasizing
what Mr. Moorhead said, I am not talking about you personally,
I am
Mr. Walters. You do not have to worry about that, sir.
Mr. Horton. Because you are the Commissioner of Revenue at the
time you are testifying, and it could have been somebody else 2
years ago, and so forth. You are in the position now; so, I am not
talking in terms of you personally, but I am talking in terms of the
office, and this is a decision made over a period of time. But those
decisions apparently said, and you are here testifying to the fact
that those decisions of your general counsels, past and present, said,
that your agency is exempt from the authority of the General Account-
ing Office. I say that that has to be spelled out specifically.
. Now, you read it into the language — and when I say "you," again,
I mean the individual appointed as Commissioner. You react the
language to say that you are exempted because the Congress has made
specific reference to the relative exclusiveness of your administrative
3273
functions. But the joint committee, although a legislative and not an
executive branch agency, is not performing the same function as that
of the General Accounting Office, I think they are almost mutually
exclusive as far as I am concerned. So, I do not sec the legal authority
for exemption of your agency under the provisions of the Budget and
Accounting Act of 1921, as amended.
Mr. Walters. May I respond, Mr. Ilorton, and Mr. Henkel might
want to supplement my comment.
In November of 1921 which was just, as you know, a few months
after the Budget and Accounting Act was passed establishing the
GAO, Congress enacted the Revenue Act of 1921 which contained a
section which been specifically recommended by the Treasury. That
section reads as follows :
Mr. Horton. Is that in your statement \
Mr. Walters. No, sir, it is in the brief attached to the statement.
Mr. Horton. What page is it on ?
Mr. Walters. I do not know, sir.
Mr. Henkel. It is page 11. and the following pages.
Mr. Horton. Pardon me I
Mr. Henkel. Page 11, and following, in the brief.
Mr. Horton. What ?
Mr. Henkel. Eleven, and the following pages of discussion.
Mr. Horton. Eleven ?
Mr. Henkel. Yes.
Mr. Horton. That is in your memorandum ?
Mr. Walters. May I go ahead and read it, sir?
It was shortly after that act was passed, and that Revenue Act said
as follows :
"That in the absence of fraud or mistake in mathematical calculation,
the findings of facts in and the decision of the Commissioner upon the
merits of any claim presented under or authorized by the internal-
revenue laws'shall not be subject to review by any other administrative
officer, employee, or agent of the United States."
Mr. Horton. Now, if it went on to say that this section repeals
Mr. Walters. May I finish this, sir ?
Mr. Horton. All right. Go ahead.
Mr. Walters. In 1924, as a part of the Revenue Act of 1924, Con-
gress inserted in that paragraph a specific reference to "accounting
officers." Now, these were being barred from reviewing claims under
the revenue laws.
Now, during the Senate debate on that measure in 1924, Senator
McKellar asked Senator Smoot whether this new language referred
to the Comptroller General, and Senator Smoot replied : "Yes, it refers
to the Comptroller."
Now, it seems to us, from the legislative history, it is perfectly clear
that the insertion of those words were specifically intended to cover
GAO.
Mr. Moorhead. It seems to me. on the legal issue, that we are like
two ships crossing; but we are not meeting head on. Where an
individual tax return is involved, and where the question is "Should
the tax laws be amended so that this particular individual and others
like him should not be able to escape taxation?" — that the Congress
did say that the joint committee should be the reviewing agent for
3274
amendments to the tax laws. Our committee lias no jurisdiction to
amend the tax laws. This committee — and I am talking about the full
Government Operations Committee — has jurisdiction over the econ-
omy and efficiency of Government. And where the economy and ef-
ficiency of the Internal Revenue Service is concerned, this committee
and the GAO does have jurisdiction. In instances where the Congress
decided that neither this committee nor the GAO should have juris-
diction to review economy and efficiency — and I think of, for example,
the Central Intelligence Agency — Congress clearly said there shall
be "mo accounting of that fund," and. as far as the President's dis-
cretionary funds are concerned, Congress also said "No accounting
of that fund.'' We were able to write laws that clearly excluded review
of economy and efficiency of such governmental operations.
But in the Internal Revenue Service, I do not believe that we did
{ hat. Except where individual tax return-- are concerned, Congress said
that the IRS is just like every other agency, except maybe the CIA.
as to their being subject to review of economy and efficiency of their
operations. We vote funds for you to have — and I think wisely —
computers, to review individual tax returns. Are you using these com-
puters as efficiently and as effectively as you can? The joint committee
on taxation is not concerned with the economy and efficiency of your
operations; but this committee and the GAO are truly concerned about
the economy and efficiency of your operations.
Therefore, I think the legislative history is very clear that so far as
economy and efficiency of your operations are concerned, the GAO and
this committee do have jurisdiction, not to amend the tax law, but to
exercise oversight on your economy and efficiency, and we have desig-
nated the GAO to be our agent to check on the economy and efficiency
of vour operations.
Mr. Walters. Yes, Mr. Chairman. As both you and Mr. Horton
have indicated, commissioners come and go. and, naturally. I do
not expect to be around here forever. And let me say on this very
specific question we are discussing, for at least the last 10 years every
chief counsel and every commissioner, after reviewing this thing inde-
pendently, has come to the same conclusion. And I do not believe you
would find that many reputable, trained, professional people who
would just swallow what has been said before. I know, in my own
case, I can vouch that I have looked at this thing deeply and have
satisfied myself that there is a serious legal question which, if we did
not bring it to you, we would be irresponsible.
Mr. IIorton". I want to underscore that I accept that, and I accept
what you say in good faith. We do have a legal problem here, and
it is very helpful, I think, that we have this memorandum from Mr.
Keller and that you have had an opportunity to look at it and then
to come back and testify following that, because that certainly presents
the issues very squarely.
What I am asking you and what Mr. Moorhead is asking you, with
regard to the authority of the General Accounting Office, and your
reply with regard to your interpretation and your predecessors1 inter-
pretations of section 6406, is your understanding of what the law is.
Mi-. Walters. Yes, sir.
Mi\ Hortox. And I think it is important for us here and now to
learn what your thinking is so that Ave have before us in this hearing
what we think the problem is.
3275
And, again, I want to emphasize, with regard to section 6406, and,
as the chairman has indicated, that that section presents a very special
type of a situation. It provides that the findings of fact in and the
decision of the Secretary upon the merits of any claim presented under
or authorized by the Internal Revenue laws and any allowances or
nonallowances of interest on any credit or refund under the Internal
Revenue laws shall not be subject to review in the absence of fraud
and mistake in mathematical calculation.
Now, that has to do with a claim; that does not have to do with
the thing that Mr. Moorhead or that I am talking about; namely, the
review of the operations of the Internal Revenue Service. And. as a
matter of fact, as I read Mr. Keller's memorandum, he indicated that
the GAO is not interested in looking at individual claims or taxes or
lax returns for the purpose of second-guessing the IRS on its dispo-
sition of such claims. What they are interested in is going into the
subjects that we are concerned about, that the Congress 3ias the right
to look at from the legislative oversight view. And we have that
responsibilitv.
I mentioned, and I want to cite the Supreme Court case of McGra'm
v. Daught rty, 273 U.S. 135, a 1927 decision which indicated that the
Congress has this broad authority of oversight.
So, there is no question about that. That has been decided.
Now, then, I must take issue with your legal counsel on the issue of
who is to determine when fraud or mistake in mathematical calcula-
tion occurs.
I think GAO has the function there, because section 6406 clearly
says, "in the absence of fraud or mistakes in mathematical calcula-
tion," there is not to be a review. Who is going to check to find out
if there is a mistake in mathematical calculation? That can be a
function of the GAO under the legislative oversight.
Mr. Walters. Well, on that specific point. Mr. Horton, let me say,
as you probably know, we have our Internal Security Division which
has the responsibility for checking on just this type thing.
Mr. Horton. That is not the point. The Congress has the legislative
oversight, and this committee can do it. We have delegated it to the
General Accounting Office who would exercise this oversight jurisdic-
tion.
Mr. Walters. Well, of course, as we read the law, you have said
it will be the Joint Committee. Now, we do not question — and
none of us question at all — the power of the Congress to do what
it wants to do, but we do net agree that you have clearly done it. If
you intend for GAO to do it, we do not agree that you have done it. If
Congress should decide in its judgment to have GAO and the Joint
Committee as well as Ways and Means and Finance oversee us, we
would not raise any fuss about that, because you can do it. But at this
point, we say you have not done that,
Mr. Horton. All right, Well, again, I want to emphasize, and I
wish you would reply to this — or your counsel would reply to this :
How do you extend the merits of any claim to include all aspects of
the. Internal Revenue Service's activities so as to obviate the section
of the Budget and Accounting Act of 1921 that, I read? Because, as
I read that, that onlv has to do — that is a verv narrow limitation that
3276
you are talking about in 0406. You are talking about the merits of any
claim.
Mr. Henkel. Our system of revenue collection is basically a claim
system. Even a petition, you know — if you dispute a tax that the
Internal Revenue Service asserts, you can pay the tax and file a claim
in the court of claims or the district court. And in a tax court con-
troversy, where you file a petition, it is the taxpayer that petitions and
makes the claim against the Internal Revenue Service, and. the In-
ternal Revenue Service is the respondent. It is essentially a claims
system. Even more specifically, I think it might be of help if I very
briefly
Mr. Horton. Well, could I interrupt you there?
The section says, "Not subject to review by any other administra-
tive or accounting officer or employee or agent of the United States."
Now. on the basis of your and vour predecessors' broad arguments,
you could argue that you should not have any review by a court.
I am surprised that you all have not taken that attitude.
Mr. Henkel. I would not interpret the words "administrative offi-
cer, employee, or agent of the United States" as including a court.
I would not render that opinion.
Mr. Horton. You have got a narrow one there.
Mr. Henkel. Let me say this: I think the chronology of exactly
how these things came about in the 1920's is of critical importance,
and I think it is important to get what happened here year by year.
As the Commissioner said, the Budget and Accounting Act of 1921
was passed on August 11, 1921. Less than a month and a half later, a
Treasury spokesman came to the Senate Finance Committee meeting,
and said — and I am paraphrasing — that the new budget bill prac-
tically gives the Comptroller General the right to a final determina-
tion on all claims against the Government. The question is whether
you want him to have the final say-so on all of these technical tax
questions. In other words, you have a bureau up there which costs
$5 million, $6 million, $7 million, or $8 million a year. It is technical
to the highest extreme. I cannot think of the Comptroller General per-
forming that Avork satisfactorily without duplicating the machinery
already provided.
Pursuant to this request of the Treasury spokesman, as the Com-
missioner said, section 1313, which is the predecessor to section 6406,
was enacted in 1921 ; in fact, only a short time after the law wdiich
created the General Accounting Office on November 21, 1921.
Now, several years later, after this law settled down a little bit,
in 1924, several things happened which point right to the question
of what this particular section means.
Congress took this into account — and let me go through three things
that happened during 1924.
The Comptroller General asserted to the Treasury that he had a
right to pass on the correctness of duties collected by the Bureau of
Customs. An opinion was obtained from the Attornev General in
1924, and he said, "While there is no expressed prohibition of the
General Accounting Office coming into the Bureau of Customs, the
authority was delegated to the Treasurv and the Bureau of Customs,
and, in our opinion" — in his opinion — "there is no right of the Gen-
eral Accounting Office to come in." I think it is significant that this
3277
opinion was rendered without anything like section 6406 or section
1313, its predecessor in the law, pertaining to Customs.
Xow, the Comptroller General was not satisfied with the Attorney
General's opinion, and he took the fight to the Congress, to the floor
of the Congress. He argued on the floor of the Congress that he ought
to have the right to review Customs, and in the ensuing debate, an
exemption was proposed, very similar to the one that was provided in
section 1313 pertaining to the Internal Revenue Service. When the
Comptroller General found that that was likely to pass in Congress
so that a similar exemption would be put in the Customs Act, he ac-
ceded and said he would no longer attempt to check Customs. In the
debate, it was made clear that the Congress had intended that the
General Accounting Office had no right to review the administration
and operation of the Internal Revenue Service.
Another thing happened in 1024. All during this particular year,
this subject was being talked about in the Halls of Congress. The
Commissioner already mentioned that during the year, 1021, Con-
gress went back to section 1313 of the original 1021 act and added the
word ''accounting." The debates make it quite clear that they intended
in 1021 that this exemption would apply to the General Accounting
Office, that it should have no right to review the administration and
operation of the Service and that the word was left out in 1021 through
an oversight.
In the same year, while the same debates were going on. Congress
created the Couzens committee. It was a committee that had the full
power of review and the broadest scope of review of the Internal
Revenue Service. In our brief, we cite the fact that Congress made it
perfectly clear that this committee, this Couzens committee, had a
right to go into almost everything in reviewing the Internal Reve-
nue Service.
I think it is also significant that only 2 years later in the Revenue
Act of 1026, a proposal was made in the House that a joint commis-
sion be set up to review the Internal Revenue Service. The House pro-
posal was that that commission would be composed of five members
from the House Ways and Means Committee, five members from the
Senate Finance Committee, and five public members. In the debates,
it was determined that there should be no public members on this
committee, no one outside of the Congress itself should have a right
to look into the Internal Revenue Service and its administration and
operation. I think it is, again, significant, that the Congress said. "We
want the congressional committee to be the one to have the oversight
and no outside people.*' This particular act created the joint commit-
tee, and from that time the joint committee has had this authority.
I think, again, another most significant point to me is that in 1028,
in the Revenue Act of 1028, the Senate proposed that the General
Accounting Office have a right of review. Let me quote the specific
language that was proposed :
All claims, rebates, refunds, compromises, setoffs, and credits in any form
whatsoever allowed by the Commissioner of Internal Revenue in excess of $10.-
000 on account of income taxes, shall be audited by the General Accounting
Office.
This was stricken in conference, and the conference report in 1028
made this specific point. The House bill made no change in the pro-
3278
visions of the existing: law prohibiting a review by the General Ac-
counting Office of decisions by the Commissioner under the Internal
Revenue laws.
Faced with this legislative history, and it was all so close in time,
we can come to no other conclusion. I could not possibly read the legis-
lative history of what this particular section means otherwise. It just
cannot come out any other way, as the law now stands. And I think it
is highly significant to note that in the General Accounting Office
Manual, at least up to 1968 when we reviewed it in connection with a
request from the General Accounting Office, stated in section 1055.10:
As to the following agencies and activities, an audit by the General Account-
ing Office is either not required by law or the law is not adequate to permit an
effective audit by this Office.
And they cite as No. 5 under the list under that, "the Internal Rev-
enue Service."
Another interesting point — and I think this gets to the crux of
what Congress can do now if they so wish : In that same manual, sec-
tion 1055.10, there was an exclusion of the Stabilization Fund under
the Gold Reserves Act of 1931. They had no right, as they said in their
manual, to go into that fund. The section of the code provided in
general that the Exchange Stabilization Fund shall be under the exclu-
sive, control of the Secretary of the Treasury, with the approval of the
President, whose decisions shall be final and not be subject to review
by any other officer of the United States. Pursuant to that, the General
Accounting Office, in their manual, in effect said: "We have no right
to look at the Exchange Stabilization Fund." But now, in 1970.
December 30. this law was amended to give the General Accounting
Office some specific authority in the Exchange Stabilization Fund.
This proviso was added :
Subject to the foregoing provisions, the administrative expenses of the fund
shall be audited by the General Accounting Office at such times and in such
manner as the Comptroller General of the United States may, by regulation,
prescribe.
This gets right to our point. This is the correct way, if it has merit,
to have the General Accounting Office review the Internal Revenue
Service in any specific area, since the Joint Committee now has this
authority, which is, that the law has to be amended to give them the
authority as was done in the case of the Exchange Stabilization Fund.
Mr. Hortox. Now, I would just like to again emphasize that it
seems to me that section 6406 is a narrow and limited authority to rely
upon: it is a very small hole, and you have put a camel through that
little hole and, mixing metaphors, have now come forth with this
umbrella to cover the entire area.
I, personally, do not feel that it was ever intended that Congress did
not have or could not have general legislative oversight in this area.
Let us assume that with regard to the one area of claims that legally
you are right. It does not seem to me that all of these other areas
ought to be excluded insofar as the General Accounting Office is
concerned.
Mr. Walters. Excuse me, sir.
Mr. FTortox. Go ahead.
Mi-. Walters. I was going to say. Mr. Horton — may I just respond
to that specific point ?
3279
It seems to me that if we read — well, first, let me say I do not think
wo can read it quite that narrowly, because if you take a claim by
a taxpayer against IRS. that claim relates to a tax return which relates
to his books" and records, relates to the whole thing. So, you could
not make a realistic determination on a claim unless you examine and
audit what is behind it. So, you get into the whole works that way.
Mr. Horton. The other point that I wanted to make in this area
is: How do you deny the General Accounting Office access to the
economic stabilization program records?
I am curious how you plan to extend your umbrella that far.
Mr. Henkel. Can I respond to that ?
We have not denied them the right at this point. We have this
under study. And let me point out our problems — and it is not that
we are being difficult about this, but we have several problems, and
I would like to make sure that the Committee understands our legal
problems in trying to respond to this request.
We are faced with a new section of law, section 205 of the Stabiliza-
tion Act of 1071. which says that the information gathered in the
stabilization program shall' not be disclosed. It says generally that
such shall only be disclosed to persons empowered to carry out this
title, solely for the purpose of carrying out this title, and which are
relevant in any proceedings under this title. We are studying that
particular language a-' to whether or not that was intended to exclude
review by t lie General Accounting Office. We have not come to any
conclusion as to that.
We have another basic problem in responding to this request.
We are not the only agency involved in this stabilization program.
It has a multiple-agency type concept, the Cost of Living Council— —
Mr. Hortox. That, in and of itself, is not reason for denying it?
Mr. Henkel. Pardon me \
Mr. Horton. That, in and of itself, is not reason for denying it?
Mr. Henkel. No, but the point I am making is this: before any
7'esponse is made, the information that is gathered in the stabilization
program may be on our own initiative; it may be pursuant to the
request of the Cost of Living Council or the Pay Board or the Price
Commission. Whose information is this and who is to authorize its
disclosure \
That is our problem, just trying to sort out whose information is
what in the program.
And we have a third problem, and we get back to our basic problem,
and that is that we do play a dual role in the stabilization program,
agents investigate both tax cases and stabilization matters.
It may be that in connection with this there will at times be in-
formation incorporated in one file from the other investigation. We
iret back to the same problem : Is this Internal Revenue information
and does (U06 prohibit it from beino; disclosed? There are many
problems, and we have this under study, and as soon as we are able,
basicallv — I think the Commissioner would agree that what we try
to do is to give the professionals, the people who have been on this for
years, the opportunity to study and discuss this. They are a bright
group of people. We "review their conclusions, and we will respond
then to this request ; but we have not, at this point, made any con-
clusion!: about it.
3280
Mr. Hortox. Well, again, from my study of it I feel that there is no
justification for elaboration of this theory, this camel through the
pinhole theory, to include the exemption from GAO of this Economic
Stabilization Board affair.
The other point I wanted to ask about : According to the memo of
Mr. Keller, there was a request by the chairman of the Legal and
Monetary Affairs Subcommittee of the House Committee on Govern-
ment Operations on June 28, 1971, requesting GAO to review IRS's
effectiveness in collecting the Federal Highway Use Tax, and they
were advised by your Chief Counsel that the Internal Revenue Code
limited the right of review of IRS's administration of the tax laws to
the Joint Committee on Internal Revenue Taxation.
Now, how7 in the world can you exclude a specific direction from the
Government Operations Committee for the GAO to audit or to check
on the effectiveness in collecting the Federal Highway Use Tax ?
How can you exclude our committee which under the law has general
oversight authority conferred by law ?
Mr. Hexkel. Congressman, we get back to the same question of
who has the authority to direct such an investigation. As we read the
law, the joint committee is the one that is given that authority.
Mr. Hortox. In other words, what you are saying to me now is
that the Government Operations Committee does not have that juris-
diction ?
Mr. Hexkel. Not under the law as it is now passed ; no, sir.
Mr. Hortox. I just wanted to get that clear .
Mr. Hexkel. That would be my opinion that I would give to the
Commissioner.
Mr. Hortox. In other words, if the Government Operations Com-
mittee directed you to submit to a General Accounting Office study or
review, you would advise the Commissioner not to submit.
Mr. Hexkel. Yes, sir; I would have to, under the law as I under-
stand it.
I might say that with respect to the question of the highway use
tax, the IRS did have a study of this program, and we made the statis-
tical data available to the GAO, which permitted them to respond to
this congressional inquiry. They agreed to this, and did so make a
study.
Mr. Hortox. Counsel has just asked me how do vou interpret sec-
tion 6103 ?
Mr. Hexkel. I think you get to the basic question.
Certainly, we would respond in some instances to an agency of the
Federal Government such as the General Accounting Office if it was a
matter officially before them. That is the question. If they had a ques-
tion about the responsibility or the honesty of one of their employees,
has he filed his tax return, and they made a request, why, that is a mat-
ter before them and that is within their jurisdiction. But we then get
back to the question of what Congress intended the GAO to have offi-
cially before them, and we say that the law, as it stands, would not put
officially before them the question of overseeing the operation and the
administration of the revenue laws.
Mr. Hortox. So, it is your contention, as I understand it, just so we
can define it very clearly — it is your contention that no committee of
Congress has any jurisdiction over the Internal Revenue Service on an
32S1
oversight jurisdiction basis except the Joint Committee on Taxation?
Mr. Henkel. No, sir. The law provides also that the Senate Finance
Committee and the House Ways and Means Committee have a right
to information also, and the appropriations committees.
Mr. Horton. I am not talking about the right to information: I am
talking about the right to oversight.
Mr. Henkel. If you are talking about administration and operation,
the answer is "yes."
If you are talking about housekeeping activities, "no," the General
Accounting Office does have a right in certain areas but not as we read
the law in the administration and operation of the revenue laws.
Mr. Hortox. Thank you.
Mr. Moortiead. We could go on for a good many hours discussing
what the proper interpretation of the law is. I would say to you that in
my judgment when the Congress specifically wanted to exclude the
overall oversight of the Government Operations Committee or the
General Accounting Office. Congress knew how to write that law to
exclude it. like the CIA. We have not done so in the case of the Internal
Revenue Service in my judgment. We have said that for administra-
tion, for amending the tax laws, the joint committee is the over-
sight authority, but for the economy and efficiency of the IKS opera-
tions, there is no specific language, in my judgment, excluding the
General Accounting Office. And, as a matter of fact, in 1946 we passed
a law directing and authorizing the Comptroller General to make an
expenditure analysis of each agency and report to the Appropriations
Committee, a standing committee, and the Government Operations
Committee. And, again, in my judgment, this was the proper inter-
pretation of what the law should be.
But I can see that we are not going to persuade you to overrule your
General Counsel — and, again, it is not personal. This is the attitude
of your predecessors. I will say that because your predecessors did not
want to be reviewed by the General Accounting Office does not mean
that you take the same position. The General Accounting Office has
not been set up to win popularity contests with the executive branch
and its agencies. They are supposed to be mean and tough, and 1
know if I were administering an agency I would just as soon not have
an outside agency reviewing me. So that, while again it means nothing
to you personally, I can understand why an agency would like to
construe the law to exclude the General Accounting Office.
Mr. Walters. Mr. Chairman?
Mr. Mooriiead. Yes.
Mr. Walters. Excuse me. May I comment at that point — if I
may, just on that point ?
I agree with you. Looking at it in one way, a head of an agency
might be more comfortable if he did not have some review, but let me,
if I may, say something about our tax system.
In my opinion, at the very base of our whole governmental system
is our tax system, and we absolutely must keep it healthy and strong
and viable, which means that the IRS must conduct its affairs in a
high, professional, evenhanded basis, being evenhanded, fair but
vigorous where it has to be.
Now. with that kind of thought in mind, let me say, as Commis-
sioner, I do not object to having someone look at us and say : Are you
32S2
doing it right? — because I think that is healthy; I really think that
is healthy.
So, we are not in disagreement, really, in that. The only thing we
say is that you have said how that is going to be done, and, as you
have said, we have talked about this before.
So, I would just assure the committee that we do not object to over-
sight, and, of course, GAO does look at us in our housekeeping func-
tions, and we welcome that.
And where we have conducted or started this study for the joint
committee, as Mr. Keller indicated, we have cooperated fully.
So far as I know, we have nothing to hide, and we are not trying
to avoid oversight, and we would welcome the committee's effort to
clarify once and for all this question.
Mr. Moorhead. Well, Mr. Commissioner, I think that where we
are missing the point is that in economic terms they talk about micro-
economics and macroeconomics. Microeconomics in your case would be
the individual return, and I think you may be correct that the Congress
said that — so far as any funny business with respect to an individual
and how the law should be amended — it was the joint committee. But,
then here is what I call macroeconomics which is a sampling, let us say,
of unnamed taxpayers, to say whether you are auditing too many or
too few returns in this category or that one, whether the money that
the Congress appropriates for the operation of the Internal Revenue
Service is being spent as wisely, as efficiently, and as economically as
possible, I think that is a separate function which, under general
statute, is reserved to the General Accounting Office.
But, as I say, we probably will not be able to persuade you today.
I think Mr. Horton and I are in substantial agreement in what we
think the Congress intended. It happens to disagree with your view.
But let us think of what the law ought to be and what this com-
mittee can do.
For example, could it — imder your interpretation of the law — if
the Joint Committee on Taxation directed the GAO to furnish them
an overall examination of the economy and the efficiency of the Inter-
nal Revenue Service, would that grant the GAO access?
Mr. Walters. If the joint committee did that, we would have
no question but that wTe would make it all available.
Mr. Moorhead. Second
Mr. Walters. I might say that is basically illustrated by this
study which the}' are now making as agents of the joint committee.
This is a study on taxpayer delinquency accounts which has been
going on now for about 18 months, and we understand a report
will be issued sometime in August.
Mr. Moorhead. That, of course, is just a narrow look at the opera-
tions. What I am talking about is a kind of broad look at your opera-
tions, which is the same kind of oversight that GAO has over all
agencies except where they have specifically been exempted, such
as the Central Intelligence Agency, and which I think is the way the
law ought to be. They do recognize that there is one aspect of your op-
eration which is different from other agencies, and what I am asking
now is what the law ought to be, I think that the public has to have
confidence in the confidentiality of the individual returns.
Mr. Walters. Ri<rht.
3283
Mr. Moorhead. But I think the taxpayers also ought to know that
their tax dollars are collected and spent as efficiently as possible, and
that is where I think the GAO role should come in.
Let me ask you, sir: You have stated that States and certain com-
mittees of the 'Congress have statutory right of access to individuals'
tax returns.
Mr. Walters. That is right, sir.
Mr. Moorhead. Other than the public's right of inspection of cer-
tain returns such as tax-exempt organizations and foundations, are
there any other private parties or organizations given statutory right
of access to IKS returns?
Mr. Walters. Yes, sir. The code provides that shareholders in
corporations owning a specified percentage of stock may inspect the
corporate return.
Mr. Moorhead. May I ask you, Mr. Commissioner, if, to achieve
better management, you have ever given access to returns by private
management consultant firms to aid vou in doing the best job for the
Nation I
Mr. Walters. Xot that I know of. and I would be surprised if we
have, because I think before we do that we would have to have a
provision authorizing it.
Mr. Moorhead. Well
Mr. Walters. If I follow your question.
Mr. Moorhead. Yes. I was informed that when you were setting up
your automatic data processing computer system that you gave access
to employees of such firms of Control Data, Homestead Facilities
Corp., and General Electric. Is that correct, sir?
Mr. Walters. Of course, as you know, I was not here at that time.
We might have given them certain information, but I do not know that
this would include the confidential information on tax returns. I can-
not answer that question. I will provide you with an answer if you
would like.
Mr. Moorhead. Are there any of your associates here who can
answer?
Mr. Walters. Mr. Virdin, sir.
Mr. Moorhead. Incidentally, before we start, just so that I keep the
record clear, I think I ought to administer the oath, which I have not
done before, to those of you who might be testifying.
Would you please rise?
Do you solemnly swear that the testimony you have given and will
give this subcommittee is the truth, the whole truth and nothing but
the truth, so help you God ?
Mr. Walters. Yes, sir.
Mr. Henkel. I do.
Mr. Virdin. I do.
Mr. Harless. I do.
Mr. Geibel. I do.
Mr. Moorhead. Mr. Virdin.
Mr. Virdix. Mr. Chairman, in answer to your question, insofar as I
know, we have never made available to a private contractor copies of
any income tax returns. Now, there have been one or two studies that
I have known of — there was a study in one of the regions, not the spe-
cific ones you have mentioned, but this is the example where they could
not see returns. We wanted to have a study made of our Audit Divi-
3284
sion, so Ave covered up all identifying material on the returns and audit
reports. They had to see this material, but the taxpayers were not iden-
tified. We let them have this. But I know that we told (in our system
of the 197(fs study) that private contractors simply could not see re-
turns, and, so, if there has been any improper disclosure, I do not know
about it.
And just recently, the question has come up because there is a new
machine that we are developing, or trying to develop, and the private
contractor wants to see raw data. We have held that there is no way
they can see it. So, insofar as I know, there have never been any, except
in a limited number of cases where the contractor did not see anything
about the taxpayer but saw the report with no identification.
Mr. Moorhead. Well, in that very instance, you had a private con-
tractor come in and perform an audit, concealing the names of the tax-
payers. It seems to me there you were asking a private contractor
to do the very job that Congress intended the General Accounting Of-
fice to do. It seems to me that an accommodation could be reached so
that you could conceal the names of the taxpayers, permitting the GAO
to see how you are auditing ; if you are auditing properly, if you are
spending too much money on auditing, if you are spending too little. I
think that this is a kind of a job that a Government agency designated
by the Congress should do. I should like to ask you : Is there statutory
authority for giving this kind of data, carefully concealing identity, to
a private contractor?
Mr. Walters. Mr. Chairman, I see the two cases differently. It seems
to me that in the case that Mr. Virdin referred to, we had a consultant
doing this work for us. It was as if we were doing it ourselves, whereas
if the GAO were to come in, as you suggest, then, that is a different
situation and we get back to this legal block which we have.
Mr. Horton. If you will yield just a minute on that ?
I assume you have a contract with whomever is involved in this. Now,
how do you audit that contract to find out whether or not it was an ade-
quate sum paid, or inadequate sum paid, or too much p.aid ; whether
you used enough personnel ?
Mr. Walters. GAO would, sir.
Mr. Hortox. They would ?
Mr. Walters. Our housekeeping functions, they audit.
Mr. Hortox. That is a housekeeping function?
Mr. Walters. Yes, sir.
Mr. Moorhead. I think what you are saying then is that you can
trust a contractor because you hire him and pay for him, but you can-
not trust the GAO because you cannot hire and pay for GAO?
Mr. Walters. No. sir, Mr. Chairman. I hate to disagree with you,
but that is not what we are saying. We are saying that we think
Congress told us: "Do not let GAO do this," and we are following
the law. which is quite different.
Mr. Moorhead. Can you point to me a place where the Congress
says: "Let a contractor go in and do that?"
Is it not true that there were suggestions in the early 1960's that the
code be amended to specifically provide for access to management-con-
sultant firms or for computer technology, but that proposal was never
adopted by Congress ?
Mr. Walters. I cannot respond to that, Mr. Chairman.
3285
Do any of you have any information ?
Mr. Mooriiead. On these proposals in the 87th Congress which were
never adopted?
Mr. Walters. I am not familiar with them, sir, and I cannot respond
intelligently.
But let me say this, that where we go out and hire a consultant to
help us, they are doing so for us in the discharge of our responsibility,
to administer the revenue laws. That is quite different than having
someone come in and review the administration of the revenue laws.
Mr. Mooriiead. Mr. Horton ?
Mr. Horton. In the memorandum that Mr. Keller submitted to us,
on page 7, it refers to the integrated data retrieval system, and he makes
this statement — he said :
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 correspondence problems and otherwise render suffi-
cient 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 informa-
tion into the system; (3) computer preparation 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
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 GAO should be permitted to make an independent evaluation
to ascertain.
And there are three items.
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 sys-
tem ; and
Whether IDRS from an operation standpoint can provide the services on
which its installation was based and how effective, efficient, and economical
such operation can be accomplished.
Access to taxpayer records would be needed to determine the operational
feasibilities of the system and the effectiveness and efficiency of its operation.
Now, how would you deny GAO the access there to make those
studies ?
Mr. Walters. Mr. Horton, as to the adequacy of the feasibility
study, our Assistant Commissioner for Planning and Research had
prime responsibility
Mr. Horton. I understand that, but in the Department of Defense,
they have somebody who is responsible for the acquisition of the
C-5A, but we still have oversight jurisdiction and, so, we send in the
GAO to check to find out whether or not he exercised all of the things
he did properly.
Mr. Walters. GAO may review at any time all of the available
information directty related to the feasibility study, as to the adequacy
of information supplied Congress on the IRS costs.
GAO may also review it any time, all of the available budgetary
information.
76-25::— 72— pt. 8 23
3286
Now, as to the effectiveness, efficiency, and economy of the opera-
tion, as Mr. Keller indicated, to determine that they would have tc-
get into the basic raw taxpayer documents ; here again, it is our posi-
tion that we cannot make those available to the GAO.
Mr. Horton. All right. Now, you have indicated in your testimony
hei<e this morning that this function is performed by the joint com-
mittee.
I want you to now explain to us how the joint committee goes about
performing this function, whether or not they make studies, what
studies they make, and what information is made available to Con-
gress, and how you make this information available to them.
"" Mr. Walters. Well, Mr. Horton, I would respond to that by saying
that I think that to get a full answer to that question you should
prove it by the joint committee because I would not presume to tell
you, and t could not tell you. what all they do. All I know is that
they are in touch with us constantly about things, orally, in writing,
and otherwise.
Mr. Horton. Do you make reports to them?
Mr. Walters. Do we make annual reports to them, do you know,
Mr. Virdin?
I will ask Mr. Virdin, who has been around much longer than I
have.
He says that we make a semiannual disclosure report to the joint
committee, and other than that we do not make an operational report.
However, let me say this : I am sure you appreciate that the Ways
and Means Committee and the Finance Committee and, of course,
the joint committee which is a part of both committees, constantly re-
view what we are doing. They receive complaints often, from people
who think we are misbehaving, and they check on them.
Mr. Horton. Well, I understand that, but they are primarily en-
gaged in legislative matters and I doubt that they have much time to
exercise oversight so far as I know. They might, to some extent, get
involved to check with regard to legislation, but I question whether
they have an adequate staff to do the necessary oversight functions.
As a matter of fact, I do not think the Government Operations Com-
mittee has a sufficient staff. That is why we have formed the General
Accounting Office to begin with, so that we would have an agency of
the Congress to perform this function.
I do not go into the philosophical positions that Mr. Moorhead did,
that you wanted to try to avoid having somebody looking over your
shoulder, and is it not better for an agency not to have this, and all that
sort of thing. But I am attacking this on purely a legal basis. And,
again, I want to emphasize that I just do not think that the legal au-
thority has been demonstrated, as far as I am concerned, to exclude
the IRS from the provisions of the 1921 statute and subsequent amend-
ments that give the General Accounting Office authority over your
agency to perform these types of functions. I think, again, you have
pointed it out in the illustration I asked of you with regard to the
IRS proposal, because there you indicated some phases of it would be
subject to a survey bj' the General Accounting Office, and then another
would not. It seems to me that the whole gamut of what was being
asked by Mr. Keller is reasonable under the provisions of their author-
ity. And I do not read into the language, with all due respect to your
32S7
General Counsel— and I respect his legal ability; I am not critical of
that — I do not read into that the exclusion of your agency from these
functions of the General Accounting Office.
Mr. Mooriiead. It seems to me another precedent we should con-
sider is the Atomic Energy Commission. There the Congress spe-
cifically set up a Joint Committee on Atomic Energy and said that
the Atomic Energy Commission should keep the Joint Committee
full}' informed, and so forth. This Joint Committee, which is really
more powerful than the Joint Committee on Taxation because it is a
legislative committee, but, nevertheless, the General Accounting Office
does have access to the Atomic Energy Commission operations. So, the
Congress there specifically gave jurisdiction to a joint committee, but,
still, the Budget and Accounting Act of 1921 applies, because there
was not a specific exclusion.
So, I believe you are wrong on your legal position.
But let us get back to the proposition that possibly the Congress — -
if your legal position is correct or we cannot persuade you to the con-
trary—should enact legislation to make GAO access specific. We do
recognize the importance of the confidentiality of the individual in-
come tax returns, but I think that the General Accounting Office has
a very good track record. They have access to Top Secret documents
that, if disclosed, would affect the life of every individual in the
United States. I think that lives are much more important than the
dollars that might be involved in the tax returns. GAO has an ex-
traordinarily good record in such sensitive areas.
We well recognize that individual taxpayers* returns are very sensi-
tive matters; however, there are sensitive matters in other agencies,
and GAO has demonstrated its awareness of the sensitivity of contact
with the public. For example, in the Department of Agriculture's
meat and poultry inspection activities — which could be very em-
barrassing to individual companies and people involved in it— they
do not investigate the plants individually. They go with the Depart-
ment of Agriculture supervisors to selected plants and observe how
they apply their inspection techniques, not with the idea that they are
reviewing the individual, but the economy and efficiency of the opera-
tion. Unless the contacts with the individual is still resting with the
agency involved — as would be in the case of a review of the operations
of the IRS — I think if we enacted special legislation which would
entitle GAO to contact taxpayers, this could be worked out just as we
do in other agencies. Where the contact is made by the Internal Rev-
enue Service, it could be done in the presence of the General Account-
ing Office employees, not because they are concerned about that indi-
vidual, but to get an accurate picture of the economy and efficiency of
the operations of the Internal Revenue Service. Do you think this
could be done I
I am not arguing the legal question of what the law now says about
it, but in the best of all possible worlds, could this not be done to the
benefit of the country \
Mr. Walters. Well, Mr. Chairman, let me say this, that we certainly
agree with you in your complimentary remarks about GAO. ( Jertainly,
they do have a good track record. We agree with you wholeheartedly,
and we are not arguing against GAO, as you and Mr. Horton have
observed. What all of us here this morning are concerned with is this
question of law.
3288
Mr. Moorhead. Now, I am suggesting, if we were starting with a
clean slate — what the law ought to be.
Mr. Walters. Well, let me say I would be quite presumptuous if
I were to state here what I thought it ought to be, because, basically,
it is a question for the Congress to decide what it wants.
I have no doubt that, if Congress says in its judgment "We want this
done, and we want it done this way," we could accomplish it.
Mr. Moorhead. I appreciate your position. Right now, if I were
voting, or if 1 were to give you my opinion as to what I think the law
would be or should be, it would be that the GAO presently does have
legal access to IRS operations. What I am saying now is that if Con-
gress decided that there may be certain unique factors in the IRS's
operations and if Congress decided to enact legislation stating that
GAO should have complete access to everything except the names and
addresses, and so forth of the individual taxpayers. This is as if we
were writing some new law now.
Would that action, in your opinion, protect the integrity and con-
fidentiality of tax returns made to the Internal Revenue Service?
Mr. Walters. I think — And let me say at this point that you and
I are talking academically — we might say, although let us be realistic
about it also, it seems to me that if you were going to pass a law such
as that, you would have several things to consider. First, of course,
is your desire for oversight, which we cannot argue with, and we do
not argue.
But, second, you would want to give some concern — particularly to
this committee — some concern to the costs involved, what would do it,
because, in effect, you would have a dual system. You would have IRS
doing one thing, and GAO doublechecking it.
Now, I am not saying you would decide against it, but I am saying
that we also would have to recognize that, in effect, the IRS, or who-
ever it might be, would not be the sole administrator in this case, be-
cause the kind of oversight you are contemplating at this point would
involve the dilution of the sole responsibility. It would be a question of
wrhat you wanted to do.
Mr. Moorhead. Do you have internal audits in the IRS ?
Mr. Walters. Yes, sir ; we do.
Mr. Moorhead. That is a dual system ; is it not?
Mr. Walters. It is, but let me say this : It is dual but it is a minimum
duality, and it is one that is designed, and is used, to protect both the
Service, the taxpayer, and also Service employees.
Mr. Horton. Who performs the other audit? You have an internal
audit, but who performs the other, the dual ? You have got two ; and
who is the other ?
Mr. Walters. Well, it is the Service, itself, the overall operation
of the Service, The revenue agent audits the taxpayer, makes his report.
Internal Audit spot checks these to see whether or not they are done
in accordance with programs established.
Mr. Horton. Well , but that is dual within the Service ?
Mr. Walters. Right.
Mr. Horton. You do not have any external audit; you do not have
anyone else that comes in except the joint committee, but I question
how much they can do.
Mr. Walters. Except the joint committee.
3289
Mr. Horton. But how much of that do they do ?
Mr. Walters. On any case, Mr. Horton, where there is a refund
of $100,000 or more they review it before any refund is made. Now,
that is all of them.
Mr. Horton. How many of those do you have a year ?
Mr. Walters. I do not know, but there is quite a few. I could
provide that answer.
Mr. Horton. Are you talking about five, 10, 100, 1,000 ?
Mr. Walters. No; not 100,000.
Mr. Horton. I say a hundred or a thousand ?
Mr. Walters. I would like to provide that answer for the record.
I just would be guessing;.
(The information follows :)
Department of the Treasury,
Internal Revenue Service,
Washington, D.C., June 5, 1972.
Hon. William S. Moorhead,
chairman. Foreign Operations and Government Information Subcommittee,
Committee on Government Operations, House of Representatives,
Washington, D.C.
Dear Mr. Chairman : During our testimony on June 1, 1972, before your
subcommittee, Congressman Horton asked how many refund cases of $100,000
or more were reviewed by the Joint Committee on Internal Revenue Taxation.
The subcommittee was advised that we did not know, but that we would provide
the information.
Accordingly, thi.s is to let you know that the number of cases reviewed by the
joint committee for the periods indicated are as follows :
Year Number
Fiscal year 19GS 642
Fiscal year 1969 685
Fiscal year 1970 638
Fiscal year 1971 790
Fiscal year 1972 (estimated) 1,100
With kind regards,
Sincerely,
Johnnie M. Walters,
Commissioner.
Mr. Horton. Well, just a ballpark figure, and you can correct it.
I thought I would just get one concept.
Mr. Walters. I just do not know, and I cannot guess that wildly,
and I will provide it. sir, and give it to you by phone this afternoon,
Mr. Horton. Well, that is all right.
Mr. Moorhead. I think we come down to a more philosophical ques-
tion, as to whether the Internal Revenue Service is so unique that, un-
like almost all other departments or agencies, it should not have an
external audit. It seems to me that a real audit by an independent ac-
counting firm, just the way private corporations — if they are listed on
the Stock Exchange — are required to have an external audit, just the
way almost every department and agency of the Government has an
external audit by the GAO — that this principle, with proper safe-
guards should certainly apply to the IRS. That is my fundamental
position here.
Mr. Henkel. Mr. Chairman, let me make one comment.
Mr. Horton. Before you do that, I want to say before we get away
from here : I have a letter from Mr. Staats dated May 25, 1072. He sent
me a copy of this, in which he has also been denied access to informa-
tion that he wants obtained from the Bureau of Customs.
3290
This is a letter from Mr. Rossides, and T was wondering if perhaps
we ought to get this one pretty well defined. This is outside of j^our
jurisdiction.
Mr. Walters. We have not seen that.
Mr. Horton. I mean, you referred to that line of decisions. But I
think we ought to draw this issue a little bit more firmly than we have.
I do not think we have looked into that area sufficiently.
Are you familiar with this letter?
Mr. Phillips. Yes; the staff has a copy in the subcommittee files.
Mr. Horton. I think it would be a good idea, Mr. Chairman, if we
could get the Bureau of Customs, or Mr. Rossides in before the com-
mittee to talk about and sharpen up the issues involved in regard to
the Bureau of Customs' refusal to furnish information to GAO along
the same lines we have done here with the Internal Revenue Service.
Mr. Moorhead. You are suggesting we call up Mr. Rossides or some-
body else?
Mr. Horton. Well, I would suggest Mr. Rossides; and, perhaps. I
ought to put the letter from Mr. Staats in the record here at this
point.
Mr. Moorhead. And Mr. Rossides' letter?
Mr. Horton. And Mr. Rossides' letter.
Mr. Moorhead. Without objection, they will be made a part of the
record at this point.
(The letters referred to follow :)
Comptroller General of the United States,
Washington, D.C., May 25, 1912.
Hon. William S. Moorhead,
House of Representatives,
Washington, B.C.
Dear Bill : Knowing of your interest in GAO's problem of access to informa-
tion from the executive branch, I thought you would be interested in having a
copy of a letter dated May 12, from Assistant Secretary Rossides denying this
office access to information with respect to the Bureau of Customs.
The Treasury Department's action in this case is consistent with the action
taken to limit GAO's access to records of the emergency loan guarantee board.
In that case, they are construing our authority to be limited strictly to what they
call ''financial transactions." In other words, GAO's audits would be limited to
determining whether there was an adequate record of receipts and disbursements.
It would deny GAO access to any records bearing upon the efficient and economi-
cal management of programs and as to whether the programs are carried out
as intended by the Congress.
We believe that this construction of our authority is contrary to the basic
authorities of the General Accounting Office. It would make it impossible for the
GAO to render the kind of assistance it is now providing to the Congress and
would make it impossible for us to carry out effective audits of executive agency
programs.
Less than 10 percent, of our present professional staff is presently concerned
with the kind of "financial transactions" to which the treasury letter refers.
I am sending an identical letter to Congressman Frank Horton.
Elmer B. Staats.
The Department of the Treasury.
Washington, B.C., May 12. 1972.
Hon. Elmer B. Staats,
Comptroller General of the United States,
Washington, B.C.
Dear Mr. Staats : Your letter of April 7, 1972, in which you request complete
access to records of the Bureau of Customs and the Department of Treasury
pertaining to the administration of section 303 of the Tariff Act of 1930 has been
referred to me for reply.
3291
We are, of course, aware of the general statutes regarding your review and re-
porting functions that you cite in your letter. Our reasons for denying access to
the records in question, other than those available pursuant to the Freedom of
Information Act and the pertinent regulations, were explained in detail to your
representatives from a legal and policy point of view.
The treasury regards participation by your office in the areas of our substan-
tive statutory responsibilities under the Tariff Act of 1930 as inappropriate. It is
the treasury's responsibility to inform the Congress, including the appropriate
committees such as the Committee on Ways and Means of the House and the
Committee on Finance of the Senate, of our approach to substantive matters
and we shall continue to do so as the need arises.
While the Treasury Department wishes to cooperate with your office in any
way consistent with our statutory responsibilities so that you may carry out
your audit functions and advise Congress of our financial transactions, we cannot
grant your request.
Sincerely yours,
Eugene T. Rossides.
Mr. Horton. I would suggest we try to get Mr. Rossides or someone
from the Treasury Department to talk on this subject of the denial
to the General Accounting Office of access to records at the Bureau of
Customs and the Department of the Treasury.
I do not know whether Mr. Rossides is the one who would testify
or not, but somebody from the Treasury ought to testify with regard
to this denial of access, because, again, it is the same type of problem
that we have here.
Mr. Moorhead. Would that also include the subject of the refusal
of access to records of the Emergency Loan Guarantee Fund?
Mr. Horton. Well, that is the IRS, and we have talked with them
about that today.
Mr. Mooriiead. No, I mean the Emergency Loan Guarantee Fund.
Mr. Horton. OK. That is different.
Mr. Moorhead. That would be Treasury also.
Mr. Walters. We have enough problems.
Mr. Horton. We have the Stabilization Board, and we did talk
about that.
Mr. Walters. Yes, sir ; we did.
Mr. Horton. And that decision has not been made vet, as I under-
stand it?
Mr. Walters. That has not been made. It is under consideration, sir.
Mr. Moorhead. Mr. Phillips?
Mr. Phillips. Thank you, Mr. Chairman.
Mr. Walters, at the bottom of page 8 and the top of page 9 of
your statement, you discuss a 1968 GAO request for statistics from
the taxpayer compliance measurement program to assist GAO in plan-
ning and scheduling reviews of IRS' operations. Then, you state on
page 13 that the statistics were not made available to GAO. Does this
mean that all of the TCMP studies are not being made available to
GAO, or that some of them have been made available to the Joint
Committee ?
Mr. Walters. Well, if they have been made available through the
Joint Committee — and I do not know — that would be all right, so
far as we are concerned, if it is through the Joint Committee. But
the studies, Mr. Phillips, are, as you probably know, actually dealing
with an in-depth review of actual tax returns, and we could, under our
position, not — we could not make those available to GAO except
through the Joint Committee.
3292
Mr. Phillips. So, this would follow your same line of reasoning that
you detailed earlier?
Mr. Walters. Right.
Mr. Phillips. This would apply to individual studies as well as
across the board ?
Mr. Walters. Yes, sir.
Mr. Phillips. At the top of page 16, you refer to a May 5, 1972,
request from GAO concerning advance contacts with Service per-
sonnel in the expectation that the Joint Committee will wish GAO
to conduct further studies.
From the memorandum that Mr. Keller submitted to this subcom-
mittee on May 23, it appears to us that all GAO wants to do is to
interview IRS officials and obtain information that has already been
made public. Are you going to deny GAO the right to interview these
officials and obtain this type of information?
Mr. Walters. Have we responded, in other words, to that May 5
letter?
Mr. Harless. We have not yet responded to that letter, Mr. Phillips.
If I read this correctly, they were interested in making some studies,
one of which, as I recall, was in the exempt organization area, and
they had some sort of exploratory discussions about it. The question
of what did they want to audit was sort of open-ended, and, so far as
I know, we were to receive a letter defining what it was they were
interested in, and when we would have it, then we would give it con-
sideration.
Mr. Phillips. So, you have not made any decision on that request ?
Mr. Harless. No, it has not been made as yet.
Mr. Phillips. This would require, I assume, some additional con-
sultations with them, some discussions of the precise areas of study in
which they are interested ?
Mr. Harless. That is correct.
Mr. Phillips. Have any meetings of that type been arranged or
scheduled ?
Mr. Harless. Not to my knowledge, they have not, Mr. Phillips.
Mr. Phillips. Notwithstanding the question of GAO's right to ac-
cess to records under your interpretation of these two sections of the
tax law we have discussed, do you have any reservations about the
concept of an independent review of IRS activities by GAO?
Do you anticipate any operational or management problems if GAO
were permitted to conduct these types of management surveys or
audits ?
Mr. Walters. First, let me explain— I think you have two questions,
if I follow you.
The first one, as I listened, would be: Do we have any fear of
such ■
Mr. Phillips. Any concern.
Mr. Walters (continuing). Of such review, and I would answer
that if the law were such that they could do it. no, flatly. In fact, if the
law permitted it, we would be pleased to have them come in.
Now, second — your second question: Would this cause any man-
agement and operational problems? The answer is, "Yes," because
it would consume a lot of time. We already are stretched so thin that
we cannot do the job we ought to be doing. So, the answer is, "Yes,
it would cause problems."
3293
Mr. Phillips. Could you answer a question which has been raised
in the past about the allocation of your manpower and budgetary
support? Is it true that you are currently spending about three quar-
ters of a billion dollars ; in other words, three-fourths of your total
appropriations each year to collect only 3 percent of the taxes ?
Mr. AYalters. I think that statement could not be answered in a
few words. And I would say that the answer to the questions
Mr. Phillips. Could you supply something for the record?
Mr. Walters. I would say that the answer is: "No, that
is not true." You are referring to a statement that various Commission-
ers— going back several years, I believe beginning with Commissioner
Caplin, where we have all stated, and I have so stated, too, that the
American public is a law-abiding citizenry, and they perform well,
that they pay in voluntarily 96 percent of the amount collected each
year.
Mr. Phillips. That is probably where I saw the figure.
Mr. Walters. That is right.
Now, let me say that is a correct statement. However, if you analyze
it in detail, then you have some worries, because that money comes in
through withholdings, estimated payments — and all of this comes in
as a result of the total effort to administer the tax system. So, the
answer to your question is "No."
Mr. Phillips. So, if there were not the enforcement club, you do
not feel that there would be 96 percent that would be so voluntary?
It is part of the whole system ?
Mr. Walters. It is part of the whole system, and if we did not have
the enforcement club — to use your term — we would not have as great
a voluntary compliance as we do.
Mr. Phillips. Just one final question — and this is addressed to Mr.
Henkel.
In your legal analysis of the legislative history of sections 8022
and 6406, did you take into consideration the provisions of title 31,
United States Code, section 60, which was enacted on August 2, 1946,
which is some 30 vears after most of the history you have cited in the
middle 1920's?
Let me read this provision, because I think it is quite relevant to
the earlier discussion of the legislative history and the intent of
Congress.
This deals with the analysis of the executive agency expenditures by
the Comptroller General and reports to congressional committees, and
it reads as follows :
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 ail ministered and expended. Reports on such analysis shall be
submitted by the Comptroller General from time to time to the Committees on
Government Operations and to the Appropriations Committees and to the legis-
lative committees having jurisdiction over legislation relating to the operations of
the respective agencies of the two Houses.
I would submit that since this statute was enacted two decades after
the history that you were talking about and makes no specific exemp-
tion of IRS, I would submit that the most recent clear intent of Con-
gress would be that Congress intended for IES to be included in the
term "each agency.*'
3294
I do not see any reference to this statute in your memorandum, and
what I am asking you is: Did you take this' legislative history into
consideration when you formulated your legal opinion ?
Mr. Hexkel. Yes ; we did. We looked at it very carefully, and there
are some references to that, beginning on page 25 of the memorandum
we submitted. In our opinion this did not change the concept of
review. There was some discussion on the floor of the Congress at the
time this was being enacted which talked in terms of one Senator
stating that he was opposed to the use of the word "review" in the
bill as it was passed, and we contrasted that on page 27 of our mem-
orandum with the review authority that is given the joint committee.
We consider that that did not change the authority of the joint com-
mittee to look at and review the operations and management of the
Internal Revenue Service.
Mr. Phillips. You mean because the Legislative Reorganization Act
of 1946 did not specifically change the jurisdictional authority of the
Joint Committee on Internal Revenue Taxation, you felt that Con-
gress by not specifically doing that did not mean to cover it under this
particular section ?
Mr. Henkel. Yes.
Mr. Phillips. I do not think that the mere fact of exclusion would
necessarily lead anyone to that opinion. I do not follow your legal
reasoning.
Mr. Henkel. Well, I think one of the real purposes in this was to
avoid the appointment of special investigative committees over areas
where there is a standing committee, and, of course, the Ways and
Means and the joint committee long had jurisdiction in this particular
area. As to the sufficiency of the law at present as we see it, as we see
it — and the chairman and Congressman Horton were mentioning the
fact that the joint committee does not have the staff to do an in-depth
audit : In 1970, in December, what we thought was a happy arrange-
ment was made. The joint committee said the GAO should go into a
certain area as their agent, and we have cooperated. All GAO has to
do is to go back to the joint committee and say, "We think we ought to
go into this area.'* If the committee says, "OK," as a practical matter
to do the particular audit, the law has an avenue for GAO to go through
if they want to investigate the Service in more detail, in more depth.
All we say is that GAO ought to go back to the joint committee rather
than coming around and requesting it independently.
Mr. Phillips. Well, I do not think we need to rehash that earlier
discussion. Where we part company is over the jurisdiction of the Gov-
ernment Operations Committee and its reliance on the Comptroller
General to carry out the oversight functions which both the 1946 and
1970 Legislative Reorganization Acts clearly includes the juris-
diction of the Government Operations Committee, but that does not
mean that such oversight is not shared. The Government Operations
Committee shares oversight responsibilities with every other commit-
tee, because the 1970 Reorganization Act specifically directs legislative
committees to increase their oversight responsibilities as well. But the
fact that this is shared does not defer to the exclusive jurisdiction of
the joint committee, and that is where I think wc are very strongly of
different opinions.
3295
Mr. Hexkkl. Mr. Phillips, let me respond to that in this way : I think
it is significant that the legislative history of the act in 1946, the pro-
posed bill as the Senate proposed it used the term "expenditure anal-
ysis" as what they were talking about in terms of what should be done.
This was amended during the Senate debate and sent to the House
with the substitute wording "administrative management analysis." In
other words, there was a proposal to use the word "administrative man-
agement analysis," but as the law was finally passed they went back to
the term "expenditure analysis." As we read it, we think this is highly
significant ; "management and operation" is basically what we are talk-
ing about, and we consider this to be legislative history and proof that
the Congress was reserving to its committees, its standing committees,
the continual watchfulness over the administration of the laws, to wit :
the joint committee.
Mr. Phillips. Of course, in those days the Government Operations
Committee was called the Committee on Expenditures in Executive
Departments, and that title was not changed until 1952, so that the
terminology — the semantics of it — may have had something to do with
it, too. because the traditional jurisdiction of what is now the Govern-
ment Operations Committee dealt with expenditures. I mean, this was
the terminology applied to the committee as a whole in its oversight
responsibilities.
Mr. Walters. Mr. Phillip?, may I just add to what Mr. Henkel said
in relation to the 1946 enactment? I do not think we ought to overlook
the fact that in 1954 the Congress completely reenacted the Eevenue
Code which includes 6406 and all of these other provisions; so, the
timing I do not think is decisive along the way you presented it. And,
of course, they have, as we have all taken note, this argument has been
going on now for several years, and Congress keeps amending the
Eevenue Code every year, to our disadvantage at times. But it seems
to us that we have to' take into consideration also the fact that where
you have these multiple revisions and the reenactments, we ought
ito, at least, give some consideration to the old principle that knowing
the interpretations that are being placed on a provision when it is
reenacted, it means that the Congress adopts that view.
Mr. Phillips. Of course, this was not an issue in 1954, because I do
not believe there was any effort made by GAO to even request that an
external audit be made of IRS and, of course, this was partly due to
a lack of manpower and concentration in other agencies of Govern-
ment. This issue was not really raised until perhaps the last 5 or 6
years when GAO was in a position to go into other agencies that it
had not touched before. That is what precipitated this disagreement,
I take it.
Mr. Walters. That very well may be.
Mr. Moorhead. I yield to Mr. Cornish for a question.
Mr. Corxish. Thank you, Mr. Chairman.
Mr. Walters, did I understand you correctly to say that you would
make available to GAO all of your budgetary data ?
Mr. Walters. I think we were talking. I believe, at that point about
the IDRS system, were we not ?
Mr. Corxish. That is right.
Mr. Walters. And I indicated that the budgetary information, the
adequacy of the budgetary information, furnished to Congress was
3296
available throughout GAG on this system. And, of course, I guess
the budgetary information is available anyway generally.
Mr. Cornish. But would this include all of your budgetary data for
the Service as well as that ?
Mr. Walters. I think it is probably already available, Mr. Cornish.
Mr. Cornish. Well, what I really want to know is : Would this in-
clude the budget requests to the OMB and also the recommendations,
interagency, from various offices and divisions ?
Mr. Walters. I do not — just being candid with you — I do not think
it would be appropriate because, you know, by the time a budget re-
quest is presented to Congress, there are certain policy decisions made
that change it, and I do not believe it would be appropriate for GAO
to have what our thought might be before it is crystallized.
Mr. Cornish. I just wanted to get that clear in my own mind.
Mr. Walters. And let me say this: This would "not be any sur-
prise to the Congress, because the Appropriations Committees have
asked the same questions and we have given, essentially, the same
answers.
Mr. Cornish. I just want to say, personally, that I think your audi-
tors should be congratulated because they are doing a very good, hard-
nosed job in auditing my return every year.
Mr. Walters. Well. Mr. Chairman, I hope this has nothing to do
with our being here today, but I am glad to know we are doing a good
job.
I might say that we have some fear, actually, about doing a good
enough job generally, because we are concerned, very concerned, about
our capabilities in view of the increasing taxpayers, increasing returns,
more complex situations.
Mr. Moorhead. Well, Mr. Commissioner, your appearance here has
nothing to do with that, nor does it have any connection with this
subcommittee thinking that you are not doing a good job. I, personally,
have great admiration for the Internal Revenue Service. I hope that
your duties under the Economic Stabilization Act are not spreading
you too thin. We commend you, and we do think that you would have
even more confidence of the American people if they knew also that
you had an independent GAO audit outside of your internal audits,
and the fairly and properly limited review of the Joint Committee.
That is the purpose of this hearing, and no criticism explicit, implicit
or implied was intended. We do appreciate your coming. You have
been very frank and forthright.
I admire your able advocacy of what I think is a very weak legal
position, but the able advocacy T applied.
Mr. Horton. I would say you have a xery resourceful counsel who
does a good job with very little to work with.
Mr. Walters. Well, I think that if a commissioner needs anything
he needs a very able counsel.
Mr. Horton. That is right; you have a good one.
Mr. MooRHEAn. Yes, and we are impressed with his ability to make
a good legal case.
Mr. Horton. And push that camel through that legal hole pretty
well.
Mr. Walters. Mr. Chairman, may I just say one thing, if you are
about to adjourn ?
3297
And that is that I think, as all of us can see, really too much time
has been spent over the years talking about this issue, so we assure you
that we would welcome, and would urge you, to solve it for us one way
or the other so that we can go ahead with our business and not have tx)
worry about this, not only year after year but, as indicated by the
letters from GAG, week after week.
So, we are not offended by this, and we appreciate your compliments,
sir.
Mr. Moorhead. We thank you very much.
The second bells have rung, and if the members of the subcommittee
have a few questions in writing, could we submit them to you and have
you answer them at anytime ?
Mr. Walters. Yes, sir. We will be pleased to.
Mr. Moorhead. Again, thank you very much, Commissioner, and
your able associates. I think that this has been a healthy exchange. We
have not solved anything, but we have at least got the problem out on
the table.
When the subcommittee adjourns, it will adjourn to meet Tuesday.
June 6, in this room at 10 a.m. We will then begin our review of the
information activities of advisory committees of the various agencies,
then.
Again, thank you very much, gentlemen.
And the subcommittee is now adjourned.
( The IRS statement of May 24, 1972, and additional material sub-
mitted for the record follows :)
Testimony Before Foreign Operations and Government Information Subcom-
mittee, Committee on Government Operations, House of Representatives,
Wednesday, May 24, 1972
Statement of Johnnie M. Walters, Commissioner of Internal Revenue
Mr. Chairman and Members of the Committee : We are here today in response
to your request that we comment on matters raised by Deputy Comptroller Gen-
eral Robert F. Keller concerning the alleged failure of the Internal Revenue
Service to make available to General Accounting Office representatives certain
records and information which would permit an effective review of Internal
Revenue Service operations and activities.
In Mr. Keller's testimony of May 16, he quoted a letter to the Comptroller
General dated June 6, 1968, from former Commissioner of Internal Revenue
Sheldon S. Cohen which stated that the Commissioner of Internal Revenue is
barred by Sections 6406 and 8022 of the Internal Revenue Code from allowing
General Accounting Office representatives to review documents for purposes of
reviewing and evaluating the Internal Revenue Service operations in the adminis-
tration of the internal revenue laws. Section 6406 is a prohibition of administra-
tive review of decisions by any other administrative or accounting officer, em-
ployee, or agent of the United States. Section 8022 specifically provides that it
shall be the duty of the Joint Committee on Internal Revenue Taxation to inves-
tigate the operation and effects of the Federal system of internal revenue taxes
and to investigate the administration of such taxes by the Internal Revenue
Service.
Mr. Keller pointed out that, under the provisions of 20 U.S.C. 6103. tax returns
are open only upon order of the President and under regulations prescribed by
the Secretary of the Treasury and approved by the President. Under these
provisions, some Federal agencies have specific rights of access to certain tax
returns; however, the General Accounting Office is not among those agencies.
There is no prohibition, however, to the General Accounting Office obtaining
tax return data in connection with some matter officially before the General
Accounting Office, provided the information is needed in connection with matters
nor involving the administration of internal revenue laws.
3298
Mr. Keller also stated. "IRS has permitted Federal agencies, States, individ-
uals, contractors, 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 Taxa-
tion. Otherwise we have been denied records requested for reviews of IRS
operations. The reviews of IRS conducted at the request of the Joint Committee
have been made pursuant to an arrangement whereby GAO and the Joint Com-
mittee agreed on certain priority matters involving the administration of the
internal revenue laws. Under this arrangement we, in effect, made reviews for
the Joint Committee, and we have had the complete cooperation of the Service."
This statement may be somewhat misleading since it indicates that the
Internal Revenue Service would permit anyone, in effect, to "rummage" through
Service files. This is simply not true. We have attached, as Exhibit "A," four-
teen fact sheets concerning the release of informatiou to Federal agencies.
States, and individuals. Tax returns are not made available to private con-
tractors, except for processing as authorized by statute (26 U.S.C. 7513). The
Chief Counsel has held that the Service is prohibited from making available to
private contractors confidential tax return data. We are not aware of any in-
stance where such information has been made available except in accordance
with the statute.
We have attached, as Exhibt "B", Manual Supplement 51RDD-15. "Disclo-
sure of Information to The General Accounting Office," which contains our basic
guidelines for furnishing information from Service documents to General Ac-
counting Office investigators in connection with their audits of Internal Reve-
nue Service activities.
We are pleased to note that Mr. Keller mentioned our complete cooperation
in the General Accounting Office's review of the Service conducted at the re-
quest of the Joint Committee on Internal Revenue Taxation. It was only a little
over eighteen months ago that such arrangements were made. At that time,
Comptroller General Staats met with members of the Joint Committee, the
Joint Committee Staff, and officials of the Treasury Department, to set out
ground rules regarding such reviews. Once these rules under which General
Accounting Office representatives would function as an arm of the Joint Com-
mittee were established, studies were begun. The first one concerned procedures
of the Service in connection with the collection of taxpayer delinquent accounts.
It was begun in our Southwest Region. This study has been expanded and, at
the present time, reviews of Internal Revenue Service activities are being con-
ducted in four of our seven regions. Other studies have been planned by the Joint
Committee to begin when the present study is completed.
The position we have taken is not new. In fact, almost ten years ago, the same
position concerning disclosure to the General Accounting Office was taken by
former Commissioner Caplin on the advice of the Office of Chief Counsel. Suc-
ceeding Commissioners of Internal Revenue, or Acting Commissioners of In-
ternal Revenue, including Mr. Harding, Mr. Cohen, Mr. Smith, and Mr. Thrower,
have also concurred in opinions of Chief Counsel.
It is clear that Congress did not intend the General Accounting Office to
have access to income tax returns for the purpose of reviewing the administra-
tion of the Internal Revenue Service. We believe that Congress has demon-
strated that the legislature itself, through the Joint Committee on Internal Rev-
enue Taxation, shall review the administration and operation of the internal
revenue laws. The Congress concluded that the Joint Committee should be the
legislative arm for review to report to Congress, and should bave complete
access to returns and records. We have attached, as Exhibit "C". a copy of
Manual Supplement 51RDD-14, which provides guidelines in this type of in-
vestigation.
We will answer, to the best of our ability, whatever questions you have. Thank
you.
Exhibit "A" — Disclosure of Income Tax Information
FACT SHEET NO. 1
Requesting agency : All Executive Departments and Establishments of the
Federal Government.
Authorization: 26 U.S.C. 6103(a) ; T.D. 6543; E.O. 10006 dated January 17,
1961 ; 26 CFR 301.6103 ( a ) -1 ( f ) .
3299
Purpose : In connection with some matter officially before the requester. The
information may be used as evidence in any proceeding conducted by or before
any department or establishment of the United States, or to which the United
States is a party.
Limitations: A written request must be signed by the head of the executive
department or other establishment and must specify the name and address of the
person for whom the return was made, the kind of tax, the period covered, the
reason why inspection is desired, and the name and official designation of the
person by whom the inspection is to be made.
FACT SHEET NO. 2
Eequesting agency : Department of the Treasury.
Authorization: 26 U.S.C. 6103(a) and 26 CFR 301.6103 (a) -1(e).
Purpose: (1) Official duties requiring inspection of returns; (2) some matter
other than tax administration officially before the head of a bureau or office in'
the Department of the Treasury not a part of the Internal Revenue Service.
Limitations: (1) Officers and employees of the Department of the Treasury
whose official duties require inspection of returns may inspect without making
written application; (2) the head of a bureau or office in the Department of
the Treasury, not a part of the Internal Revenue Service, desiring to inspect or
have an employee inspect a return in connection with some matter officially be-
fore him for reasons other than tax administration must make a written request
specifying the name and address of the person for whom the return was made,
the kind of tax, the period covered, and the reason inspection is desired.
FACT SHEET NO. 3
Requesting agency : Department of Justice.
Authorization: 26 U.S.C. 6103(a) ; 26 CFR 301.6103 (a )-l(g) and (h).
Purpose: (1) For inspection by a United States Attorney or by an attorney of
the Department of Justice where necessary in the performance of his official
duties: (2) for use in litigation if the United States is interested in the result.
Limitations: When the inspection is to be made by a United States Attorney,
the application must be signed by such attorney. When the inspection is to be
made by an attorney of the Department of Justice, the application must be signed
by the Attorney General, Deputy Attorney General, or an Assistant Attorney
General. Returns or copies may be furnished without request in cases arising
under the internal revenue laws and referred by the Department of the Treas-
ury to the Department of Justice for prosecution or defense.
FACT SHEET NO. 4
Requesting agency : Department of Commerce.
Authorization: 26 U.S.C. 6103(a), T.D. 6547; E. O. 10911 dated January 17,
1961 ; 26 CFR 301.6103 ( a )-104.
Purpose : In the interest of the internal management of the government.
Limitations : A written request must be made by the Secretary of Commerce.
Inspection may be made by any duly authorized officer or employee of the De-
partment of Commerce. Information obtained shall be held confidential except
that it may be published in statistical form.
FACT SHEET NO. 5
Requesting agency : Department of Health, Education, and Welfare.
Authorization: 26 U.S.C. 6103(a) ; T.D. 6135; E.O. 10019 dated June 29. 1955:
26 CFR 301.6103 (a) -100.
Purpose : Administration of Title II of the Social Security Act, as amended
(42 U.S.C. Ch. 7).
Limitations: An application signed by an officer or employee duly authorized
to sign such applications must be made on Form OAR-7057 and specify that the
requested information will be used solely in connection with administering pro-
visions of Title II of the Social Security Act and regulations issued thereunder.
FACT SHEET NO. 6
Requesting agency : Advisory Commission on Intergovernmental Relations.
Authorization: 26 U.S.C. 6103(a) ; T.D. 6570; E.O. 10962 dated August 23,
1961 ; 26 CFR 301.6103 (a )-103.
3300
Purpose: Making studies and investigations in connection with the per-
formance of its function of recommending methods of coordinating and simpli-
fying t;>x laws and administrative practices.
Limitations : A written request must be made by the Chairman of the Com-
mission. Inspection may be made by any duly authorized member or employee.
Information obtained shall be held confidential except that it may be pub-
lished in statistical form.
FACT SHEET NO. 7
Requesting agency : Federal Trade Commission.
Authorization: 20 U.S.C. 6103(a) ; T.D. 6545; E.O. 109G8 dated January 17,
1961 ; 26 CFR 301.6103 (a ) -106.
Purpose : As an aid in executing the powers conferred by the Federal Trade
Commission Act of September 26, 1914 (38 Stat. 717).
Limitations: A written notice must be signed by the Chairman of the Com-
mission. Inspection may be made by any duly authorized officer or employee of
the Commission. Information obtained shall be held confidential except that it
may be published in statistical form.
FACT SHEET NO. 8
Requesting agency : Renegotiation Board.
Authorization: 26 U.S.C. 6103(a) ; T.D. 6544; E.O. 10907 dated January 17,
1961 ; 26 CFR 301.6103 (a ) -105.
Purpose : In the interest of the internal management of the government.
Limitations : A written request must be made by the Chairman of the Board.
Inspection may be made by any duly authorized officer or employee of the Board.
Information obtained shall be held confidential except that it may be published
in statistical form.
FACT SHEET NO. 9
Requesting agency : Securities and Exchange Commission.
Authorization: 26 U.S.C. 6103(a) ; T.D. 6374; E.O. 10814 dated April 29, 1959;
26 CFR 301.6103 ( a ) -102.
Purpose : Gathering .statistical information in carrying out its functions under
the Securities Exchange Act of 1934 (15 U.S.C. 78a-78jj) as amended or in
complying with directives or recommendations of the Bureau of the Budget pur-
suant to Section 103 of the Budget and Accounting Procedures Act of 1950 (31
U.S.C. 18b).
Limitations : A written notice must be signed by the Chairman of the Secu-
rities and Exchange Commission. Information obtained will be held confi-
dential except to the extent that it shall be published in statistical form.
FACT SHEET NO. 10
Requesting agency : ( 1 ) The Committee on Ways and Means of the House of
Representatives; (2) the Committee on Finance of the Senate; (3) the Joint
Committee on Internal Revenue Taxation ; (4) a select committee or joint commit-
tee authorized bv resolution or joint resolution.
Authorization : 26 U.S.C. 6103(d) ; 26 CFR 301-6103 (d)-l.
Purpose : Investigative.
Limitations : Applications for inspection of returns by one of these Commit-
tees should be made to the Secretary of the Treasury or to the Commissioner
of Internal Revenue.
FACT SHEET NO. 11
Requesting agency : Committees of Congress authorized to inspect returns by
Executive Order.
Authorization : 26 U.S.C. 6103(a) ; 26 CFR 301.6103 (a) -101 ; Applicable Execu-
tive Orders.
Purpose : Investigative.
Limitations : A written request signed by the Chairman of the Committee must
give the names and addresses of the persons whose returns are to be inspected
and the period and type of return. The request must state that the returns desired
to be inspected are returns specified in a resolution adopted by the Committee
in accordance with the rules of the appropriate House of Congress then appli-
cable to the reporting of a measure or recommendations from such Committee.
3301
The .application for inspection must be consistent with the terms of the applicable
Executive Order and must be approved by or on behalf of the Secretary of the
Treasury.
FACT SHEET NO. 12
Requesting agency: States, The District of Columbia, Puerto Rico, and Posses-
sions of the United Slates.
Authorization: 26 U.S.G. 6103(a)— District of Columbia. Puerto Rico, and
Possessions. 26 U.S.C. 6103(b)— States. 26 CFR 301.6103(a)-l(d)— District of
Columbia. Puerto Rico, and Possessions. 26 CFR 301.6103(b)-! — States.
Purpose: For administration of the tax laws of the States. The District of
Columbia, Puerto Pico, and the Possessions of the United States, or for furnish-
ing information to local taxing authorities.
Limitations: A written application from the Governor of the State (or execu-
tive head of the District of Columbia, Puerto Rico, or Possessions of the United
Stares) shall state the title of the official, body, or commission to make the
inspection, the State tax law being administered, the purpose of the inspection,
and, if the purpose is to furnish information to local taxing authorities, the title
of the official, body, or commission lawfully charged with the administration of
the tax laws of such political subdivision, and the purpose for which the informa-
tion is to be used. Programs for supplying tax return information on magnetic
tape exist to minimize the need to inspect or obtain copies of returns.
FACT SHEET NO. 13
In addition to the foregoing Establishments of the Federal Governments,
Committees of the Congress, and Governments of the States, the District of
Columbia. Puerto Rico, and the Possessions of the United States, the return
of an individual shall be open to inspection by —
the individual for whom the return was made ;
the committee, trustee, or guardian of his estate if the individual for
whom the return was made is legally incompetent ;
the administrator, executor, or trustee of the estate of a deceased tax-
payer ;
any heir at law, next of kin, or beneficiary under the will, of a deceased
taxpayer, upon submission of satisfactory evidence that such heir at law,
next of kin. or beneficiary has a material interest which will be affected
by information contained in the return ;
the receiver or trustee if the property of the individual for whom the
return was made is in the hands of a receiver or trustee in bankruptcy ;
the duly constituted attorney in fact of any of the foregoing persons,
subject to the conditions of inspection prescribed for such person.
FACT SHEET NO. 14
The unauthorized disclosure of information from income tax returns is made
unlawful and punishable by a fine of not more than $1,000.00 and imprisonment
for not more than one year by 26 U.S.C. 7213(a)(1) (applicable to federal
employees and other persons), and 26 U.S.C. 7213(a) (2) (applicable to employees
Of States and Political Subdivisions thereof).
Additional legal restrictions against unauthorized disclosure are contained
in IS U.S.C. 1005. and in the various titles under which the receiving agencies
operate.
Exhibit "B" — Manual Supplement, November 10, 1971
DISCLOSURE OF INFORMATION TO THE GENERAL ACCOUNTING OFFICE
Section 1. Purpose
This Supplement provides guidelines and instructions for furnishing informa-
tion from Service documents to General Accounting Office investigators in con-
nection with their audits of Internal Revenue Service activities.
Si ct ion 2. Background
.01 The (;. neral Accounting Office is an independent agency in the legislative
branch of the Federal Government. GAO is required by statute to conduct inde-
pendent reviews, audits, and investigations of the programs, activities, and finan-
76-253 72 pt. 8 24
3302
cial transactions of Federal agencies, and to report its findings directly to the
Congress. In addition, it renders legal decisions relating to Government fiscal
matters; reviews and evaluates Federal agency accounting systems; settles cer-
tain claims for and against the Government; and advises and assists the Con-
gress and Government agencies in matters relating to public funds.
.02 The Secretary of the Treasury or his delegate is charged by law with the
administration of the Internal Revenue -Code. IRC 6406 and S022 limit the au-
thority of the GAO to review the administration of the revenue laws by the Sec-
retary or his delegate. Furthermore, regulations issued under IRC 6103, 6106,
and 7213 specifically set forth the conditions under which GAO may be given
access to confidential tax information. See also 18 U.S.C. 1905 and 26 CFR
301.9000-1.
.03 The Service desires to cooperate with GAO, but has a legal obligation
at the same time to maintain the confidential nature of tax information which
falls oiuside the scope of GAO's authority to inspect in accordance with Section
2.02.
Section 3. Matters Within the Scope of General Accounting Office Audits of The
Internal Revenue Service
.01 GAO is required to settle accounts of disbursing and collecting officers. In
this regard, the audit of administratise expenses provides the basis of settling
such accounts in the Internal Revenue Service. In addition, the payment of per-
sonnel, the purchase of supplies, the rental and use of office space, the accounting
for money received, and general housekeeping details, which concern every Fed-
eral agency, are all matters about which the Service has furnished or would
furnish some information to GAO.
.02 ADP Handbook 2708.02(3) sets forth the records to be made available for
GAO audits.
.03 Other documents or information available to the public generally, of
course, may be made available to GAO. See text (17)50 of IRM 51(10)0, Dis-
closure of Official Information Handbook.
Section If Activities of The Internal Revenue Service Outside the Scope of General
Accounting Office Reviews
.01 In general, GAO may not review our actions or question our judgment
in matters relative to the administration of the tax laws without specific ap-
proval of the National Office as set forth in Section 6. For example, the selection
of returns for audit ; the determination of the depth or intensity of such audits ;
the recommendations to impose penalties or criminal sanctions ; the acceptance
of offers to compromise tax liabilities ; the determination of what collection ac-
tivities should be instituted ; the establishment of guidelines or tolerances ; and
the findings in the TCMP program are not matters subject to review by GAO.
These examples are directly concerned with the administration of the tax laws
within the exclusive statutory responsibility of the Secretary of the Treasury
or his delegate.
.02 The Joint Committee on Internal Revenue Taxation has a duty under
IRC 8022 to investigate the operation, effects, and administration of the Federal
tax system. For reviews of this type, the General Accounting Office will act as
agent for the Joint Committee. See 51RDD-14, CR 12RDD-30. 4SRDD-10,
S9RDD-1, 93RDD-22, and (10) 2RDD-* dated June 15, 1971.
Section 5. GAO Revieivs Under Section 3 for which National Office Approval is
not Required
.01 GAO will notify the Service officials concerned as far in advance as pos-
sible before starting any audit activity authorized under Section 3.
.02 An opening conference should be arranged to enable GAO to explain
their audit plans and to permit a free and open discussion of any problems.
.03 Service officials should attempt to define as clearly as possible the limits
of information from Service files which will be made available for the GAO audit.
Section 6. National Office to be Notified if GAO Indicates a Desire to Expand Their
Review
.01 Field personnel should not authorize the inspection of any information de-
scribed in Section 4. Any indications that GAO wishes to shift or expand their
audit beyond matters covered by Section 3 or to examine information referred
to in Section 4. should be brought to the attention of the Regional Inspector who
should endeavor to resolve the matter. If the matter cannot be resolved, then the
3303
Regional Inspector should refer the problem to the National Office, Attention :
I :IA.
.02 The Commissioner will take the matter under advisement and the National
Office will notify the Regional Inspector and the Service officials concerned to the
extent the Commissioner authorizes GAO to go beyond what is set forth in Sec-
tion 3.
.03 Should the Commissioner authorize any extension of the GAO review. Serv-
ice officials should lie alert to make sure that the GAO audit remains within the
bounds covered by the Commissioner's authorization. Should any problems arise
which are not covered by the authorization from the Commissioner, the matter
should be referred to the National Office, Attention : I :IA.
Section 7. Regional Inspector to be Responsible for Liaison with General Account-
ing Office
The Regional Inspector will be responsible for field liaison with GAO investiga-
tors : will make the necessary arrangements for an opening conference with GAO
officials before the start of each audit; and will serve as the advisor to Regional,
District, and Service Center officials in these matters.
Section S. Effect on Other Documents
This supplements MS (10)2RDD-3. CR 12RDD-25 dated June IT. 1060, and
51RDD-14.1 CR 12RDD-30. 4NRDD-10, 5(17)RDD-3, 89RDD-1, 93RDD-22, and
(10)2RDD-4 dated June 15, 1971, which should be annotated by pen and ink with
a reference to this Supplement.
William H. Loeb,
Acting Commissioner.
Exhibit "C" — Manual Supplement, June 15, 1971
REVIEW OF INTERNAL REVENUE SERVICE ADMINISTRATION OF THE FEOERAL TAX SYSTEM
BY THE GENERAL ACCOUNTING OFFICE ACTING AS AGENT FOR THE JOINT COMMITTEE
ON INTERNAL REVENUE TAXATION
Section 1. Purpose
This Supplement provides cuidelines and instructions for furnishing informa-
tion from tax returns, investigative reports, or other Service documents to desig-
nated representatives of the General Accounting Office acting as agents for the
Joint Committee on Internal Revenue Taxation.
Section 2. Background
.01 On the basis of an understanding reached between Comptroller General
Staate, Commissioner Thrower, ami the Joint Committee, it was agreed that the
Joint Committee would authorize the General Accounting Office, acting as repre-
sentative of the Joint Committee, to make studies of specified Internal Revenue
Service programs or activities selected and approved in advance by the Joint
Committee.
.02 After consultation with the Commissioner, the Joint Committee will
authorize the General Accounting Office to make a particular study. For each
study, the Comptroller General will designate the personnel of the General
Accounting Office who are to perform the review on behalf of the Joint Committee,
and will supply a list of such personnel to the Commissioner and to the Staff of
the Joint Committee.
.0.3 Regional Commissioners will be advised in writing when new Joint Com-
mittee activities are to begin in their Region. At that time, a list of GAO employees
representing the Joint Committee will be furnished, together with any addi-
tional instructions which may lie necessary.
.04 The first study which the Joint Committee has authorized concerns the
policies and procedures of the Service in connection with the handling and collec-
tion of taxpayer delinquent accounts.
.05 At the present time, GAO audits for the Joint Committee are limited to
Collection activities in the Southwest Region.
.06 The draft report resulting from the study will be submitted to the
Internal Revenue Service fas is normally done in the case of General Accounting
Office studies of Internal Revenue Service matters) and to the Staff of the Joint
1 Manual Supplement f»!RDD-14. with its cross-references, is in the process of helnsr
reissued, with CR 5(17) RDD— 3 being added. Dispose of all previous copies of Manual
Supplement, also dated June 15, 1971, which inadvertently omitted CR 93RDD-22.
3304
Committee. The final report will be submitted only to the Joint Committee, but
ordinarily with a confidential copy to the Commissioner, and no release of the
report or any of its contents will be made except by the Joint Committee.
.07 The Joint Committee on Internal Revenue Taxation is empowered under
26 U.S.C. 8022 to investigate the operation and administration of the Federal
tax system ; under 26 U.S.C. 8023 it has powers to obtain directly from the Internal
Revenue Service or from the Office of the Chief Counsel of the Internal Revenue
Service any information necessary for the purpose of making investigations,
reports, and studies relating to internal revenue taxation ; and under section
6103(d) it ha»s authority, acting directly as a committee, or through such ex-
aminers or agents as it may designate or appoint, to inspect any or all tax returns
at such times and in such manner as it may determine.
08. Except when conducting examinations authorized by the Joint Commit-
tee. General Accounting Office employees are not authorized access to confidential
tax data, and Service employees dealing with the General Accounting Office con-
cerning regular General Accounting Office examinations should continue to follow
procedures established by Manual Supplement (10)2RDD-3, CR 12RDD-25,
dated June 17, 1966.
Section 3. Procedures
.01 The following instructions and procedures will be used in the study of
Collection activity by the General Accounting Office on behalf of the Joint Com-
mittee on Internal Revenue Taxation :
1. The Service will give the broadest possible cooperation and will make every
effort to expedite the furnishing of information or the answering of inquiries.
2. GAO employees will be furnished working space and telephone facilities with
adequate security safeguards.
3. Confidential tax data will be furnished only to those GAO employees who
have been named by the Comptroller General to act on behalf of the Joint Com-
mittee.
4. Oral requests for information will be compiled with. If it is necessary to
obtain taxpayer delinquent accounts, records of seizure and sale, or other Collec-
tion documents not available in the District or Regional office, they will be
promptly obtained from the Federal Records Center or the Service Center.
5. If GAO employees ask to inspect taxpayer delinquent accounts or other
material which is in active use — for example, TDA's assigned to a Revenue Officer
in a distant post of duty — such data may be furnished as soon as it can be ob-
tained without interfering with the work of the Revenue Officer.
6. If the GAO employees find that a TDA or other Collection case has been
transferred to another Region, action should be taken to obtain the file from
the other Region or cooperative arrangements made with the other Region for
GAO employees to inspect the file in such Region and to discuss it with employees
in that Region.
7. GAO employees should not remove records from official IRS files, but they
may be furnished copies of any documents requested. The copies will be made
in accordance with established IRS procedures.
8. GAO employees may discuss Collection cases with Collection Management,
Group Supervisors, Revenue Officers, or other employees who participated in any
actions in the cases.
9. GAO employees may be permitted to observe Collection activity provided
they do not interview taxpayers. If GAO employees ask to interview taxpayers,
the purpose of the interview should be ascertained. The Regional Commissioner
or District Director should then contact the Office of the Assistant Commissioner
(Compliance) for approval.
10. In the event GAO employees request income tax returns, clearly necessary
to their study of delinquent accounts, such returns may be furnished.
11. Xo information should be disclosed which would identify or tend to
identify a informant, nor should other information which was voluntarily fur-
nished to the Service in confidence and for internal use only, and which informa-
tion is not required to be disclosed in the administration of the internal revenue
laws, be furnished.
12. If GAO employees want to look at Audit. Intelligence, or Appellate files
which may be relevant to the Collection study, the files should not be made
available without prior approval of the Office of the Assistant Commissioner
(Compliance).
13. Information which may be made available to the designated GAO em-
ployees without approval of the Assistant Commissioner (Compliance) includes
3305
documents which are normally processed by the Collection Division in District
offices. Examples of such documents are :
(a) Manual instructions and supplemental instructions issued by the Na-
tional, Regional, or District offices; (b) collection Division investigative case
files; (c) taxpayer delinquent accounts and related records ; (d) inve
gation assignment records; (e) tax liability correspondence; (/) liens, levies,
and discharge records; (g) property seizure and sale records; (ft) liens
and levy record books; (i) program and production reports; (j) daily report
of collection activities ; and (k) transmittal registers.
14. In order that documents involved in the review by the Genera1.
ing Office may be retrieved as necessary, appropriate records of the documents
requested should be maintained.
15. Because of the interest of the Joint Committee in the impact of this .study
on the resources of both the General Accounting Office and the Internal Revenue
Service, appropriate records shall be maintained of the time devoted to this
project by IRS personnel.
Section .'f. Reports
.01 A record should be kept of the time spent by IRS employees in orienta-
tions and in connection with the actual audits conducted by GAO for the Joint
Committee. The format for a noncumulative memorandum report of "Time Ex-
pended by IRS Employees in Connection with GAO Audits for the Joint Commit-
tee on Internal Revenue Taxation", Report Symbol NO-D :MI-S9, is as follows:
Time Expended by IRS Employees in Connection with GAO Audits for the
Joint Committee on Internal Revenue Taxation :
Region.
Report Symbol NO-D :M 1-89 For the Quarter Ending
ITime expended (hours)]
Management
supervision Technical Clericaf
Orientation
During audit .- - ---
After completi&n of field work ...
Totals.. _ --
.02 This report should be prepared quarterly by each Region in which GAO
is conducting a review for the Joint Committee and shouid be submitted in time
to reach the National Office, Attention : D :MI :P. by the tenth workday of the
month following the end of the calendar quarter. Negative reports are not
required, and it will be unnecessary for those Regions having no GAO activity
on behalf of the Joint Committee during a given quarter to submit a report.
Section 5. Effect on Other Documents
This supplements MS (10)2RDD-3, CR 12RDD-25. dated June 17, 1986, which
should be annotated by pen and ink with a reference to this Supplement.
Raxdolph W. Thrower. Commissioner.
[From the Washington Evening Star, May 26, 1972]
Counsel fob Taxpayers — IRS Refuses To Be Audited
(By E. Edward Stephens)
Dear Counsel: In fiscal 1971. which ended last June 30. the Internal Revenue
Service collected nearly $192 billion and spent almost $1 billion. Does the Gen-
eral Accounting Office audit these operations and report results to Congress'/
A. GAO has tried to do so. but has failed. Reason: IRS wouldn't let GAO
auditors see tax returns and other records.
This bombshell was exploded by Deputy Comptroller General Robert F. Keller,
testifying May 16 before the House Foreign Operations and Government Infor-
mation Subcommittee, chaired by William S. Moorhead, D-Pa.
3306
Hepresentative Frank Horton, R-N.Y., was amazed. He asked Keller if he was
saying that GAO had '"really" been accorded "literally no access" to information
sufficient to make an audit or any study as to what IRS is doing.
"Yes. sir: that is what I am saying," Keller replied. Without access to IRS
records, he said, "The management of this very important and very large agency
will not be subject to any meaningful independent audit."
When asked why he thought IRS balked at the prospect of any GAO audit,
Keller implied that some IRS operations might not stand the light of day. "I
guess IRS doesn't want anything to happen to break down public confidence in
the Service," he said.
Confidence of taxpayers and their Representatives on Capitol Hill already has
been seriously shaken by recent disclosures of statistics that IRS keeps under
wraps. To pick one example, they show that Manhattan taxpayers in fiscal 1971
were able to settle tax deficiencies at an average of 35 cents on the dollar, while
New Jersey taxpayers had to pay S3 cents.
This is the type of information that GAO wants to unearth by auditing IRS
operations, just as it examines the activities of other Federal agencies. As an
example, Keller said GAO would like to know whether IRS treats delinquent
taxpayers the same from coast to coast. If not, GAO would recommend changes
in operating procedures.
It certainly can't be argued that IRS doesn't need watching. Over the years,
scandalous practices have been exposed in various offices of the Service, includ-
ing those at Boston, New York, and San Francisco.
In refusing to open its records to GAO, IRS relies on sections 6406 and S022
of the Internal Revenue Code. But any law school dropout could see that the
IRS interpretation of these sections is ludicrously strained. Subcommittee staff
director William G. Phillips put it succinctly when he said IRS is "leaning on
two weak reeds."
IRS completely ignores the Budget and Accounting Act of 1921, which set up
the GAO to serve as the watchdog of Congress. There's no room for doubt about
what Congress always has intended this organization to do. The act gives GAO
sweeping authority to examine the "books, documents, papers, or records" of
all Federal departments and agencies. IRS is not exempted.
Phillips said it isn't only the GAO that has been straight-armed when attempt-
ing to examine IRS records. He said taxpayers also have had "great difficulty"
in obtaining information from IRS under the 1967 Freedom of Information Act.
This is the understatement of the year.
Phillips said "many, many" IRS denial of information cases had been called to
the subcommittee's attention. "I think there is an attitude here on the part of
IRS that extends to Congress, the GAO, and the public at large," he concluded.
[From the Washington Evening Star, June 16, 1972]
Counsel for Taxpayers — Congress Unit Pushing IRS
(By E. Edward Stephens)
Dear Counsel : All U.S. taxpayers are losers if the Internal Revenue Service
doesn't administer the tax laws fairly, efficiently, and economically. Is there a
practical way to improve IRS administration?
A. Yes> — give the General Accounting Office a free hand to audit IRS opera-
tions and come up with recommendations. If IRS won't adopt recommended
improvements, Congress can force compliance by appropriate legislation.
IRS officials shudder at the thought. They contend that, since Congress has
authorized the House-Senate Joint Committee on Internal Revenue Taxation
to keep an eye on IRS administration, this cuts GAO out.
So IRS now collects nearly $200 billion a year, and spends about $1 billion
a year — all without any independent audit by a disinterested organization.
Congress soon may end these freewheeling operations. If so, it will be one of
the biggest tax reform developments in U.S. history.
Since Congress wants to keep tabs on how U.S. agencies handle money, it set
up the GAO to audit them. The 1921 Budget and Accounting Act gave GAO
3307
sweeping authority to examine the books and records of all U.S. departments
and agencies.
There are a few exceptions. For example, Congress has specifically exempted
the Central Intelligence Agency from Budget and Accounting Act requirements.
But it never has exempted IRS. Yet the Service claims that Internal Revenue
Code sections 6406 and 8022 let IRS off the GAO audit hook.
Deputy Comptroller General Robert F. Keller brought the matter to a head
in his May 16 testimony before the House Foreign Operations and Government
Information Subcommittee. He said that IRS officials wouldn't let GAO per-
sonnel see tax returns and other records essential to any meaningful audit of
IRS operations.
The subcommittee bristled. Chairman William S. Moorhead, Democrat, of
Pennsylvania, called Commissioner of Internal Revenue Johnnie M. Walters on
the carpet May 24. But committee members — Republicans and Democrats alike —
could see from Walters' prepared statement that IRS was evading the question.
So, instead of taking Walters' testimony, committee members lectured the IRS
team and instructed them to come back in a week, prepared to meet the issue that
Keller had raised very clearly. All members in attendance — Republicans and
Democrats — joined in this action.
The IRS first string turned out in full force for the June 1 subcommittee hear-
ing. Walters was supported by Deputy Commissioner Raymond F. Harless, Act-
ing Chief Counsel Lee H. Henkel. Jr.. Disclosure Chief Donald O. Virdin, and
Francis I. Geibel, Acting Assistant Commissioner for Inspection.
Walters and Henkel performed eloquently, but left the subcommittee members
convinced that IRS had the wrong side of the case. Moorhead called the IRS legal
position "very weak." And Representative Frank Horton. Republican, of New
York, said Henkel had tiled to push a camel through a legal peephole.
The subcommittee expects to conclude hearings on June 27. Hopefully, the
Government Operations Committee then will draft legislation to remove all doubt
about GAO's right to audit IRS operations and report results to the ladies and
gentlemen on Capitol Hill who represent all U.S. taxpayers.
[From the Washington Post, June 15, 1972]
Lockheed Loan Disclosure Urged
The Senate Banking and Currency Committee yesterday admonished the Nixon
administration for failing to provide complete data to the Government Account-
ing Office on the Government's $250 million loan guarantee for Lockheed Aircraft
Corp.
The GAO and the Emergency Loan Guarantee Board — the three-man commit-
tee that administers the loan guarantee — have been feuding for months over the
disputed data.
The Emergency Loan Guarantee Board has given GAO all Lockheed's internal
financial data. but. has insisted that the auditors have no right to the Board's own
internal documents, such as credit analyses done by the Federal Reserve bank
in New York. The bank is a consultant to the Board, which consists of the Secre-
tary of the Treasury, head of the Federal Reserve, and head of the Securities and
Exchange Commission.
GAO insists it needs the additional documents to determine whether or not the
Board had adequate information about Lockheed before making up its mind. So
far, the Board has allowed Lockheed to borrow $100 million of the $250 million.
"In view of the highly controversial nature of the Lockheed loan guarantee and
the size of the U.S. financial commitment, this committee believes the Emergency
Loan Guarantee Board should fully cooperate with the GAO in making its records
available." the Banking and Currency Committee said yesterday in a statement
inserted in legislative report on the Defense Production Act.
It was unclear yesterday whether the statement — offered by Senator William
Proxmire, Democrat, of Wisconsin, and passed 9 to 5 — would settle the issue.
Samuel R. Pierce, Jr., the Treasury's General Counsel and counsel for the
Board, had no comment on the action. The office of Comptroller General Elmer
B. Staats said the GAO is trying to arrange a meeting with new Treasury Secre-
tary George Shultz to resolve the issue.
330S
[From the Evening Star, Thursday, May 4, 1972]
Supervisory Panel for Lockheed Bars Disclosure to GAO
(By Dana Bullen)
A high-level board watching over $250 million in federally guaranteed loans to
the Lockheed Aircraft Corp. has flatly refused to give the Government Account-
ing Office data about its activities.
"We are not going to let the GAO push us around," said Samuel R. Pierce, Jr.,
executive director of the Emergency Loan Guarantee Board headed by Treasury
Secretary John B. Connally.
Senator William Proxmire, D-Wis., and Elmer B. Staats, U.S. Comptroller
General, promptly assailed the board's decision as the withholding of facts needed
to evaluate the controversial loan program.
The sharply conflicting views came out yesterday at news conferences held
by the loan board and by Proxmire and Staats an hour later.
Last August, Congress passed controversial legislation to guarantee the private
bank loans to Lockheed amid reports tiie big defense contractor was nearing
bankruptcy. So far $100 million has been advanced to the firm. The board headed
by Connally is charged with seeing whether Lockheed, as it draws on the money,
will be able to repay the loans.
GAO "HARASSMENT"
As Congress' budget watchdog agency, the GAO, which Staats heads, is respon-
sible for seeing to it that Government agencies carry out laws as Congress
intended.
The new battle over the Lockheed loans opened with Pierce charging GAO
"harassment." At their later press conference, Proxmire and Staats denied the
charge.
"It's not the first time the GAO has moved in to interfere and harass people
making decisions in the executive branch of Government," the board's spokesman
said. "We do not intend to be bullied."
Pierce, with Proxmire sitting quietly in the back of the room, denied that
Lockheed is in financial trouble or that taxpayer's money is in any danger in
connection with the loans.
"making money"
"Nothing could be further from the truth," he said. "The U.S. Government has
been making money on Lockheed."
Under terms of the loan guarantee arrangement, Lockheed pays the Govern-
ment a fee for its help. So far, Pierce said, $1 million has been paid the Govern-
ment under these terms.
Among the items of information the GAO wants, Proxmire said, are credit
analyses on Lockheed prepared by a New York City bank for the loan board. The
board has paid ,$5,000 a month for these reports.
Pierce said that the government has such a "tight grip" on Lockheed assets
that even if the firm should "go down the drain" the Government would get all
of the $250 million back safely.
Asserting GAO has no right to "staff memoranda" and "correspondence" with
loan agents in New York, Pierce said, however, the board would provide com-
mittees of Congress specific data upon the request of the appropriate committee
chairmen.
At their later press conference, Proxmire and Staats asserted that the loan
board is violating the laws establishing the GAO by refusing the unit its own
access to records and other information.
Attacking Connally for refusing to come before the Senate Banking Committee
to testify on the loan board's refusal to give GAO data on its operations, Prox-
mire said :
"What does the Secretary have to hide? Is the Lockheed loan guarantee in such
jeopardy that it has driven Secretary Connally to this extraordinary and inde-
fensible posture of defying the law and the Congress?"
. Proxmire, who spotlighted the large overrun on Lockheed's C5A transport pro-
gram several years ago, said that he would continue to press for testimony by
Connally on the new loan program.
"We were concerned that the people's $250 million guarantee might be in
3309
serious jeopardy, so we were particularly anxious to see that the Loan Guarantee
Board operate with great care and keep the Congress closely and continuously
informed," he said.
August 22, 1972.
REPORT TO THE CONGRESS
U.S. System for Appraising and Evaluating Inter-American Development
Bank Projects and Activities
Please note, while the overall report is classified, the following
portion is not classified.
(By the Comptroller General of the United States)
Chapter 2. Treasury Department Restrictions on GAO Access to
Information
Our review was carried out under the limitations placed on our access to, as
well as in the absence of, records maintained by U.S. agencies concerning the
administration of U.S. participation in IDB. The Department of the Treasury
did not respond promptly to our requests for records and, on occasion, refused
to make some documents available for examination. Such documents included
minutes from IDB Board of Executive Director's meetings, periodic progress
reports on projects being financed by IDB loans, and a recent consultant's study
on IDB administrative practices.
Both the Treasury and State Departments arranged for agency officials to
review the files we requested before they were released for our examination. We
therefore cannot attest to the completeness of the contents of files that were made
available to us. Indeed, there was a dearth of current correspondence in many
of the files that the Department of the Treasury made available — files that
should reasonably have been expected to contain rather frequent, if not con-
tinuous, flows of correspondence. For example, a file purported to contain cor-
respondence between the Department of the Treasury and the Congress con-
tained very little in 1970 correspondence, one letter for 1967, and nothing for
1968 and 1969. Also a file on U.S. Executive Director memorandums showed a
similar situation — it contained only one document for 1969 and one for 196S,
and the rest of the correspondence was dated 1962 and prior years.
Treasury and State Department officials and the U.S. Executive Director
advised us that much of the correspondence concerning IDB matters was handled
verbally and never reduced to writing.
In commenting on our draft report, the Treasury and State Departments indi-
cated they had cooperated fully with us on the matter of providing records for
our review. According to the Departments, the only records on which our access
had been restricted pertained to confidential IDB internal documents. Restric-
tions on our access to information are further discussed on pages 75 and 76.
The documents in question were accessible to the Treasury and State Depart-
ments and would have seemed to form a significant part of the record on which
U.S. management decisions regarding IDB operations were based. It is therefore
our view that the documents should have been made available for our examina-
tion pursuant to the Budget and Accounting Act, 1921 (31 U.S.C. 54).
[From the Evening Star and the News, Monday, Aug. 21, 1972]
IRS, Unlike Taxpayers, Avoids an Audit
(By Lee Flor)
The average American taxpayer who fears that his income tax return will be
audited should relish the news that the Internal Revenue Service also dislikes
an audit.
But the IRS has an advantage the taxpayer lacks. For the past 10 years it
has firmly refused to permit an audit by an outside agency, the General Account-
ing Office, of its management and techniques.
3310
And it has largely had its way.
The GAO is a highly respected, and in some cases feared, arm of Congress. Its
auditors and management specialists normally delve deeply into the functions of
federal agencies, and monitor the ways in which these agencies carry out the
programs legislated by Congress.
EXEMPTION IS CLAIMED
But the IRS, and other Treasury agencies, claim they are exempt from an audit
by GAO.
The IRS position has incensed Rep. William S. Moorhead, D-Pa., chairman of
the House Subcommittee on Foreign Operations and Government Information.
Moorhead's subcommittee has been holding a series of hearings on how the
1967 Freedom of Information Act has been implemented.
Moorhead and his subcommittee staff, looking into ways individuals and news-
papermen have used the act to pry information loose from government agencies,
came across the IRS' reluctance.
COMPLAINTS VOICED
In testimony before the Moorhead subcommittee, Robert F. Keller, GAO's
deputy comptroller general, had some very specific complaints about the IRS.
"The 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 operation
and activities."
"Without access to necessary records, GAO cannot effectively evaluate the IRS
administration of operations involving billions of dollars" of taxes — about $192
billion in fiscal 1971 — and around $973 million for annual salaries and expenses
for IRS employees, Keller said.
"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,"
he told the subcommittee.
EXAMPLES OFFERED
Keller had several examples of how his agency wanted to check tax records
at IRS to measure the effectiveness of the IRS programs. The GAO, for example,
wanted to check the effectiveness of IRS collections of the Federal highway use
tax. It wanted to check truck registrations in States against the Federal tax
returns, to see if IRS was missing any trucks.
The GAO also wanted to check the manner in which IRS collected $7 billion
in alcohol and tobacco taxes annually.
The GAO also is having trouble in its efforts to examine the IRS's effective-
ness in administering the economic stabilization program.
DISTRICTS VARY
Even the Bureau of Customs is in the act. As part of Treasury it is denying
GAO access to "any records bearing upon the efficient and economical manage-
ment of programs and as to whether the programs are carried out as intended
by the Congress," the GAO contends.
The IRS handling of the $2 billion in delinquent tax returns aroused the most
interest by subcommittee members. Apparently there is a wide discrepancy be-
tween IRS districts in the rate of effectiveness in which the delinquent accounts
are collected.
For example, in fiscal 1971, the New York district collected only 35 percent
of the delinquent accounts settled compared to around 85 percent in New Jersey.
In Maryland and the District of Collumbia, the percent collected was 46.6
percent, and in Virginia, 61.2 percent, according to E. Edward Stephens, a
syndicated columnist whose column, "Counsel for Taxpayers" is carried by the
Star-News.
Keller said a thorough examination by GAO could show if inadequate IRS staff
time was spent on delinquent tax accounts, and also could indicate if lower-
income taxpayers were being treated as fairly as corporations with large legal
staffs.
3311
Such an audit, if it examined individual tax returns, might show whether
any corporations has received special preference.
The IRS was asked to testify on why GAO should not he permitted to examine
individual tax returns as part of its overall review program.
SECRECY IS LAW
The Commissioner of Internal Revenue, Johnnie M. Walters, and his staff
appeared before the Moorhead committee to give their side of the dispute.
Walters said the IRS was required by law to keep all income tax records
confidential, and therefore could not give GAO access to the records.
Also, the IRS comes under the legislative oversight of the Congressional Joint
Committee on Internal Revenue Taxation, and it would duplicate functions if the
GAO also was to review it, Walters said.
The GAO review "would consume a lot of time. We already are stretched so
thin that we cannot do the jobs we ought to be doing," Walters testified.
In response to a question as to whether the GAO review would be burdensome,
Walters said that "Yes. it would cause some problems."
Moorhead said he felt it was obvious that previous Federal legislation had
given GAO adequate authority to audit IRS, and to examine individual income
taxes as part of this. The GAO has stressed numerous times it will not reveal
the results of individual income tax returns, and insists that it cannot evaluate
the effectiveness of delinquent tax returns without access to the original docu-
ments.
LEGISLATION LACKir^G
There is no legislation pending to force IRS or the other agencies in Treasury
to submit to an independent GAO audit.
However, some 18 months ago the Joint Committee on Internal Revenue Taxa-
tion said it was interested in the effectiveness of the collection of delinquent,
taxes, and authorized an investigation. Since the committee staff is small it
turned the job over to the GAO.
Under the auspices of the joint committee, and not as an independent agency,
GAO auditors are checking the IRS. Their report, by normal GAO practice, will
not be made public but will be turned over to the joint committee.
Thus, the public may never know what the auditors find.
[From the Washington Star, Aug. 28, 1972]
FDIC Refuses GAO Audit of Its Records
(By Lee Flor)
The Federal Deposit Insurance Corporation (FDIC). which insures individual
bank accounts against bank failures, is refusing to let the General Accounting
Office audit its records.
The FDIC has a staff of about 2,100 persons in its division of bank supervision
who regularly delve into bank records. The organization has sweeping powers
to intervene in cases in which bank officers have endangered bank accounts by
risky loans or other practices.
But because of FDIC's desire to keep bank records confidential, the GAO is not
permitted to audit the records of the 2,100 persons who directly supervise banks.
A recent GAO report pointed out that the FDIC was concerned with 234 banks
which were in what is called its problem category. The GAO report mentioned
that the five largest of these banks had insured deposits which totaled $1 billion.
RECORDS EXAMINED
The FDIC regularly examines the records of around 14.000 National and
State banks. It puts banks in what it calls its "serious problem" category when
there is a danger the FDIC will have to pay off depositors "unless drastic change"
can be made in the hank's operation.
The FDIC also puts banks in its "other problem bank" category when it feels
the bank has a "lesser degree of vulnerability, including those which give cause
for more than ordinary concern and require aggressive supervisory attention."
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The GAO, in a report released May 25, 1972, stated that "We believe that
access to the records of the FDIC's Division of Bank Supervision is essential to
a meaningful audit of the corporation by GAO.
"The Division's reports on insured banks contain facts, opinions, and recom-
mendations of vital importance to the conduct of the corporation's affairs."
KESTRICTIONS DECRIED
"Without full and complete access to these reports and the supporting docu-
mentation, we cannot evaluate important information affecting the corporation's
financial operations and condition," the GAO report stated.
It added that "because of restrictions on access to the records," the GAO was
unable to find out "whether bank examinations were of sufficient scope and could
be relied upon to identify all banks that should have been classified as problem
banks."
Also. GAO said it was unable to find out whether the FDIC "had taken
effective followup action on findings revealed by the bank examiners."
Another problem was that GAO was unable to determine "the significance
of any possible adverse effect of problem banks on the financial position of the
corporation," the report, concluded.
The FDIC's position is that it "believes that the basic concept of confidential-
ity, as to open bank data, is essential to the proper supervision of banks and to
the functioning of deposit insurance," the GAO report said.
POWERS ASKED
Lawyers for both the FDIC and the GAO disagree over the GAO access to FDIC
records. As a result, the GAO said it was recommending that Congress pass legis-
lation giving it complete access to all records of the FDIC.
The GAO audit was sent to the FDIC for comment on March 16, 1972, and 2
months later the FDIC replied in a letter released with the GAO report.
The letter, signed by Frank Wille, FDIC chairman, said the FDIC would oppose
any legislation intended to give GAO complete access to FDIC records.
Wille also complained that the GAO report did not adequately state the FDIC
viewpoint on the dispute, and also implied that GAO had helped slant the
dispute by the title of its report : "Audit of FDIC for the Year Ended June 30,
1971 Limited by Agency Restriction on Access to Bank Examination Records."
(Whereupon, at 12 :25 p.m., the subcommittee adjourned, to recon-
vene at 10 a.m., Tuesday, June 6, 1972.)
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