MUTUAL SECURITY APPROPRIATIONS, 1960

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• Publication Date: September 12, 1959
• Content Type: OPEN SOURCE

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_74
1959 CONGRESSIONAL RECORD ? SENATE
table were a great many officials of the
Department. They included the able
Ambassador William Lacy who had ne-
gotiated the famous Lacy-Zaroubin
Agreement, together with many Foreign
Service officers. I told Bill Lacy, in
front of all those present, that I regarded
the agreement he had negotiated as one
of the greatest?if not the greatest?sin-
gle contributions to world peace in the
postwar decade.
Despite progress, however, we have not
really begun to get inside the Soviet
Union. John Gunther wrote "Inside
Soviet Russia Today," but we Americans
have Aot really been inside that vast
country or inside the Soviet mind. We
have not really come to know the Soviet
people, nor they us.
NEW COMMITTEE PRINT AVAILABLE
In this connection, I should like to cite
to my colleagues a new 57-page booklet
entitled "United States Exchange Pro-
grams With the Soviet Union, Poland,
Czechoslovakia, RUmania, and Hun-
gary."
This committee print shows the many
delegations which have been exchanged
between the countries during the last
11/2 years in such fields as agriculture,
education, music, the physical sciences,
medicine, industry, and other fields.
ORIGIN OF BOOKLET IN MOSCOW VISIT
The booklet arose out of my own visit
to Moscow and my study of the medical
exchange program. I went there in my
capacity as chairman of the Subcom-
mittee on Reorganization and Interna-
tional Organizations of the Committee
on Government Operations, conducting
an international health study, as author-
ized under Senate Resolution 347, 85th
Congress. Thereafter, I asked the State
Department for a comprehensive report
not only on the medical exchange, but
on all, other exchange programs under
the agreement. The Department made
the report and in a very helpful and in-
formative fashion.
The material was turned over to the
Committee on Foreign Relations; this
subject logically falls within its vast and
essential jurisdiction. Through the
courtesy of the distinguished chairman,
my able colleague from Arkansas [Mr.
FULBRIGHT] , the booklet was thereafter
issued as a committee print by the Com-
mittee on Foreign Relations.
It is fitting that it was he who ar-
ranged this, because no single Member
of the Senate has done more to awaken
the people of the world to the value of
exchange programs than has the famed
author of the Fulbright Act.
Several thousand copies of the booklet
have now been published. I would like
to see one in the hands of every American
university, for student exchanges are one
of the most important programs. And
I would like to see every American cul-
tural organization see it, so as to stim-
ulate their own thinking on future ex-
changes, formal and informal.
I cordially invite my colleagues to se-
cure copies of the booklet. A supply may
be obtained from the Committee on Gov-
.ernment Operations. The Committee on
Foreign Relations has kindly made avail-
able a large number of copies to that
committee.
I hope, therefore, that after the Khru-
shchev visit exchanges will proceed full
speed ahead and that there will be ade-
quate money to finance travel by Ameri-
can exchange missions to the U.S.S.R.
PUBLIC LAW 480 FOREIGN CUR-
RENCY LOAN REPAYMENTS
Mr. HUMPHREY. Mr. President, I
have a brief statement in reference to the
conference report on the amendment to
Public Law 480, td clarify a point which
was developed in that report.
The committee of conferences-did not
adopt a provision in the Senate version
which would have specifically authorized
foreign currencies which are now begin-
ning to come in through payments of
principal and interest on loans made un-
der section 104(g) of Public Law 480 to
be used for assistance in the establish-
ment and operation of binational foun-
dations for the purpose of promoting
education, health, and public welfare.
This action by the committee does not
mean that these foreign currency repay-
ments are frozen from any use whatever.
Rather, as I understand it, these foreign
currency repayments, like the foreign
currencies originally received on sales of
surplus commodities under title I, may be
used under existing law for the various
purposes set forth in section 104 of Pub-
lic Law 480?for example, to help develop
new markets abroad for 'U.S. agricultural
commodities, or possibly for binational
foundations which will contribute to eco-
nomic development. I described the
possibilities under this section in my re-
marks of Friday, September 11, on page
17533, when I said, "Certain provisions
under section 104 are maintained with-
out change or interference * * * it
should be understood that the use of for-
eign currencies is supplemental to, in
addition to, regular appropriations."
MUTUAL SECURITY APPROPRIA-
TIONS, 1960
The Senate resumed the consideration
of the bill (H.R. 8385) making appropri-
ations for ? mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
The PRESIDING OnoiCER. The
question is on agreeing to the amend-
ments, as modified, of the Senator from
Virginia [Mr. ROBERTSON].
Mr. MORSE: Mr. President, as I
stated a few minutes ago, I think the
pending amendment raises such an im-
portant problem of constitutional law
that even though the chairman of the
Committee on Appropriations and
others on that committee are willing
to take it to conference, I do not think
it should go to conference until legisla-
tive history in much greaterketairthan
has been made on it.
The Senator from Virginia [Mr. Ros-
ERTSON] deserves great credit, thanks,
and appreciation from the Senate for
his sincere attempt to provide some-
thing in this law which, at least, will
give us a procedure by which we may
be able to obtain from administrative
and regulatory bodies within the admin-
istration the information we need con-
1
11749
cerning the expenditure of appropriated
funds.
But even the distinguished Senator
from Virginia would be the first to admit
that the language he brings to the floor
of the Senate is not the language he
would like to bring to the floor of the
Senate. He would prefer to go much
further.
The Senator from Oklahoma [Mr.
MONRONEY] made the suggestion that we
try to put some teeth into the amend-
ment by making it perfectly clear that
if there were received a certification by
the President that he considered the
disclosure of the document, paper, com-
munication, audit, review, finding, rec-
ommendation, report, or other material
so requested to be contrary to the pub-
lic interest, we would review the cer-
tificate and decide for ourselves whether
or not the President showed good cause
in the certificate for not making the
information available.
If we should reach the conclusion
that we were not satisfied with his cer-
tification, we would notify him that un-
less the material were to be submitted
to us forthwith, any further expendi-
ture of money from appropriated funds
would, in effect, be stopped by Congress
impounding the funds. Either we must
come to grips with this issue, or, in my
judgment, we shall be guilty of Sur-
rendering a very precious congressional
power and right to an administration
which already has taken us a long way
down the dangerous road of government
by the Executive.
In the course of my remarks this
afternoon I intend to discuss Marbury
versus Madison, which is the constitu-
tional landmark case of 1803. In my
judgment, that case gave rise to the
consideration of this problem.
I shall discuss some other legal prece-
dents involving this very important con-
stitutional point; but at the outset of
the speech I wish to make it very clear
that in my judgment the Robertson
amendment does not meet the problem
which confronts us. It is better than
nothing, but that i's about all I can
say for it.
The amendment does make it clear
that the Congress still has the right to
follow appropriated funds and that it
has the right to stop the expenditure of
such funds if it cannot receive informa-
tion from the administrators of the va-
? rious departments as to how such funds
are being spent.
HISTORY OF EXECUTIVE PRIVILEGE
Mr. President, the study most fre-
quently referred to in the consideration
of legislative-executive relations and the
issue of withholding information sought
by Congress is the one done by Herman.
yi7:ollcinson which appeared in the Fed-
eral BarlJaiiiial of April 1949.,
Wolkinson goes through an interesting
list of contests between the President
andthe Congress over information pos-
sessed by exechtive departments. 1-te
cites cases in the Washington, Jefferson,
Jackson, Tyler, Polk, Buchanan, Cleve-
land, Theodore Roosevelt,- Coolidge,
Hoover, F. D: Roosevelt, and Truman
administration which he claims demon-
strate that the President has always won
P--
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17750 CONGRESSIONAL RECORD ? SENATE September 12
out when he desired to withhold infor-
mation from Congress. ?
This study was apparently the basis
for a memorandum which the Attorney
General furnished the President and
which was in turn passed from the Pres-
ident to his Secretary of Defense in a
letter dated May 17, 1954.
The President said to the Secretary of
Defense on that occasion:
Within this constitutional framework each
branch should cooperate fully with each
other for the common good. However,
throughout our history the President has
withheld information whenever he found
that what was sought was confidential or its
disclosure would be incompatible with the
public interest or jeopardize the safety of
the Nation. * * Because it is essential to
efficient and effective administration that
employees of the executive branch be in a
position to be completely candid in advising
with each other on official matters, and be-
cause it is not in the public interest that
any of their conversations or communica-
tions or any dotuments or reproductions con-
cerning such advice bet disclosed, you will
instruct employees of your Department that
in all appearances before the subcommittee
of the Senate Committee on Government Op-
erations regarding the inquiry now before it
they are not to testify to any such conver-
sations or communications or to produce
any such documents or reproductions. This
principle must be maintained regardless of
who :would be benefited by such disclosures.
Unfortunately, the study done by Mr.
Wolkinson argues so completely from
the executive point of view that it over-
looks a very important fact about many
of the issues he cited between the Exec-
utive and the Congress.
That fact is that in many of his own
instances the President involved reiter-
ated his right to withhold information
under certain circumstances, but com-
plied with the congressional request in
the case at issue. At times when our
Presidents have set forth their most
ringing declarations of Executive powers
they have at the same time decided that
what Congress wanted, Congress was en-
titled to have. -
In the hearings before the Subcom-/
mittee on Constitutional Rights of the
Senate Judiciary Committee on March
19, 1959, Mr. J. R. Wiggins, vice presi-
dent of the Washington Post, went
through the list of historical cases listed
" by Herman Wolkinson and pointed out
how several of them fail to prove Mr.
Wolkinson's conclusion.
I quote from Mr. Wiggins' statement,
beginning on page 180 of the printed
hearings:
In a memorandum on congressional powers
previously referred to the Department of Jus-
tice has stated these propositions:
" ( 1) For over 150 years?almost from the
time that the American form of governnient
? was created by the adoption of the Constitu-
tion?our Presidents have established, by
precedent, that they and members of their
Cabinets have an undoubted privilege and
discretion to keep confidential, in the public
interest, papers and information which re-
quire secrecy. * ? ?
"(2) Courts have uniformly held that the
President and the heads of departments
have an uncontrolled discretion to withhold
the information and papers in the public in-
terest, and they will not interfere with the
exercise of that discretion."
These sweeping propositions are not sus-
tained by the argument made in this mem-
orandum. The second proposition is not
consistent with some of the cases cited above.
The first proposition is not supported by the
record of early presidential precedents on
which it rests.
THE HISTORICAL PERSPECTIVE
The historical background for this sweep-
ing claim of absolute privilege first appeared
in the Federal Bar Journal of April 1949, in
an article by Herman Wolkinson, entitled
"Demands of Congressional Committees for
Executive Papers." It is the source docu-
ment for the statement which the Depart-
ment of Justice submited in 1954, accom-
panying President Eisenhower's letter to the
Secretary of Defense of May 17, 1954. It has
been drawn upon for the somewhat enlarged
memorandum which Attorney General
Rogers submitted to the House Committee on
Government Operations and to the Senate
Subcommittee on Constitutional Rights.
The Wolkinson article concluded with the
statement:
"In the great conflicts which have arisen,
in the administrations of Washington, Jack-
son, Tyler, Cleveland, Theodore Roosevelt,
and Herbert Hoover, the executive has al-
ways prevailed."
This contention is simply not supportable
even on the basis of the historical episodes
to which Mr. Wolkinson alludes and which
the Department of justice has incorporated
in its memorandum. Space does not permit
or time allow the exa&ination of all these
historical incidents but it is worth while to
examine at least the early episodes which
were of such importance as precedents and
on which the Wolkinson article and the
Justice Department memoranda lay such
stress. The memorandum of 1952 is the
source of the quotations used in this effort
to refresh historical perspective.
THE ST. CLAIR EPISODE
As the memorandum states, in March 1792,
the House of Representatives passed the fol-
lowing resolution:
"Resolved, That a committee be appointed
to inquire into the causes of the failure of
the late expedition under Major General St.
Clair, and that the said committee be em-
powered to call for such persons, papers, and
records as may be necessary to assist their
inquiries."
This resolution related to the disaster en-
countered by General St. Clair's force of 1,400
men on November 3, 1791, when it was sur-
prised by an Indian attack near a Miami set-
tlement, in which.900 men were lost and the
command driven back in disorder.
Before establishing the Congressional com-
mittee of inquiry, the House had debated a
resolution calling upon the President to un-
dertake such an inquiry but had decided
against this course.
Says the Attorney General's memorandum:
"When the committee was bold enough to
ask the President for the papers pertaining
to the General St. Clair campaign, President
Washington called a meeting of his Cabinet."
A description of this meeting (there were
really two meetings) is taken from Jefferson's
notes, which repeat this conclusion of the
Cabinet:
"First, that the House was an inquest, and
thei?efore might institute inquiries. Second,
that it might call for papers generally. Third,
that the Executive ought to communicate
such papers as the public good would permit,
and ought to refuse those, the disclosure of
whichwould injure the public; consequently
were to exercise a discretion. Fourth, that
neither the committee nor the House had a
right to call on the head of a department,
who and whose papers were under the Presi-
dent alone; but that the committee should
instruct their chairman to move the House
to address the President."
This account of the Cabinet's conclusion
was obtained from Thomas Jefferson's writ-
ings, but it is not a full account. Thomas
Jefferson, in relating the episode, in addition
to the matter reported above, said:
"Hamilton agreed with us in all these
points except as to the power of the House
to call on the heads of departments. He
observed that as to his department, the act
constituting it had made it subject to Con-
gress in some points, but he thought himself
not so far subject as to be obliged to produce
all the papers they might call for. They
might demand secrets of a very mischievous
nature. (Here I thought he began to fear
they would go on to examining how far
their own members and other persons in the
Government had been dabbling in stocks,
banks, etc., and that he probably would
choose in this case to deny their power; and
in short, he endeavored to place Arriself
subject to the House, when the Executive
should propose what he did not like, and
subject to the Executive when the House
should propose anything disagreeable) Fi-
nally agreed to speak separately to the mem-
bers of the committee, and bring them by
persuasion into the right channel. It was
agreed in this case, that there was not a ,
paper which,might not be properly produced;
that if they should desire it, a clerk should
attend with the originals to be verified by
?
themselves."
Mr. President, one would think that
was not 1792, but 1959, because the prob-
lem of contest between Congress and the
Executive over the issue of Executive
privilege has existed as long as our Re-
public has existed.
I also want to stress the great differ-
ence on this issue between this adminis-
tration and previous administrations,
going back to the .time of Washington,
Jeffeeson, and Madison. / Those early
Presidents?in fact, the Presidents
throughout our history, until we have
reached this almost blanket mandate
from the Eisenhower administration?
have taken the position that their right
of privilege was discretionary with the
President, and that the President would
not exercise it unless he, as President,
decided that the national interest in-
volved in the request was of such a na-
ture that he had the executive duty to
deny the congressional request.
I have no objection to that. In fact,
I have taken a position, time and time
again in support of the right of Presi-
dents to exercise the doctrine of execu-
tive privilege. It is inherent in the sepa-
ration of powers doctrine.
If we are to have three independent
branches of Government, and we must
have them for our form of self govern-
ment and to preserve our independence,
then I will not support any proposal
which seeks to take away or encroach
upon the Executive privilege of any Presi-
dent of the United States, I care not who
he is. If I understand the Senator from
Virginia [Mr. ROBERTSON] correctly, that
is exactly his position.
C,O)KpLAINT OF CONGRESE. IS WITH THE _ABUSE
--..."."'POP.fRECT_TfIVE PRIVILEGE
- _
But what we are Objecting to is that
this administration, through its Attor-
ney General, has, in effect, sought to
delegate a constitutional power of a
President to all the administrative offi-
cers of his administration. That Icon-
tend, is beyond his power. "Pir?esiz'
dent Eigenhower does not hTiii-th-g76-n-'
stitutiorial-nower to giVe blanket- atith?o7-
ity to his Cabinet offiders,--to- the 'hee:ds
of the various- departments,T to the
Subordinates in those departments, to
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1959 CONGRESSIONAL RECORD ? SENATE
,the regulatory agencies, to exercise for
hinithe doctrine of Executive privilege.
?Ce-itaiiilFtiiis?ealliEit-Cabinet in our
history together with the first President,
set forth that very doctrine and acted on
? it, as well.
- Moreover, when we get to discuss Mar-
bury against Madison later, it will be seen
that the very first case in our constitu-
tional history helps clarify and support
this doctrine, namely, that the use of
executive privilege is personal to the
President and calls for personal action
by the President whenever an issue is
raised between Congress and the execu-
tive branch of the Government over a
r,it by Congress for information.
hat is a power which resides with the
President, an elected representative of
all the people of the Nation. It was not
intended as a power which he could
delegate to some bureaucrat who never
stood for election; or who, if he did stand
for election, was defeated and was then
appointed by the President to fill some
adminstrative office. With that type of
bureaucrat this administration is honey-
combed.
The legal argument I make .this after.;
noon is b-ased'onthe premise tha.t
. ?
tixte-prOilege is person-al to the Presi-
dent. When he exercises it p'P?iillr
?he will never find a stronger defender of
that prindiple than the senior Senator
from Oregon. I have defended it over
and over again.
I remember that I defended it at the
time of the MacArthur hearings, when I
was a member of the Committee on
Armed Services, and anattempt was be-
ing made to get a statement, through
testimony, from General Bradley on one
occasion, and Secretary of State Ache-
son on another, as to what was said at
conferences held at the White House pri-
or to the action which President Truman
took in connection with the MacArthur
incident.
Those witnesses took the position, and
rightly so, that they did not feel that
they were free to testify as to what hap-
pened in the meetings with the Presi-
dent of the United States at the White
House, without the approval of the Pres-
ident. That was a perfectly sound posi-
tion for them to take. They contended
that the committee, therefore, could not
press against the witnesses, but could
only seek from the President the author-
ity, for them to tell, with the permission
of the President, what transpired at the
White House conferences. The RECORD
will speak for itself.
When it was suggested that perhaps
the committee should have considered
holding the witnesses in contempt be-
cause of their refusal to disclose *hat
happened in the White House confer-
ences, we had, in respect to one of the
instances, quite a discussion and a vote,
and a majority of us sustained the doc-
trine of executive privilege.
We could have taken the next stela,
and could have sought to get the Presi-
dent to give permission for them to tes-
tify about what was said at the White
House conference. But we did not do
so, because all of us recognized that we
were dealing with a matter which ob-
viously was one in which a President
No. 162-14
would not give such consent, and should
not be expected to do so; and we thought
that, under the circumstances, it would
be an affront to him to ask him to *do so.
I refer to this matter only to point
out that the Congress has been a great
respecter of executive privilege. It
seems to me that in the discussions of
the matter of executive privilege, there
is sometimes sought to be created in the
public mind the impression that Con-
gress lies in ambush, waiting to embar-
rass an administration 'by seeking to ob-
tain from it information which good,
commonsense would indicate Congress
should not request, whereas/if Senators
really believed in the doctrine of the
separation of powers?and, 'Mr. Presi-
dent, if we do not, of course we have no
place in this body, because the doctrine
of the separation of power is one of the
most precious of the constitutional
checks? they should not ask the Presi-
dent to make available to them any ma-
terial which might fall within the pre-
rogatives of the President under the
doctrine of executive privilege.
NO EXECUTIVE PRIVILEGE AT ISSUE IN ECONO1VLIC
Am
However, Mr. PrZident, such a sit a
tion.does not exist in the case at point.,
The ICA was created with the approval?
of Congress; the ICA administers hun-
dreds of millions of dollars of the funds
of the taxpayers, in connection with the
economic-aid program. As the? Sen-
ator from Virginia [Mr. ROBERTSON]
has pointed out, by means of the origi-
nal amendment we were not seeking to
obtain any necessarily secret- informa-
tion about what happens in connection
with the expenditure of the -funds ap-
propriated for military purposes by Con-
gress.
It is not my position, that we should
not do so, although when we try to ob-
tain information about what happens to
the funds appropriated for military pur-
poses, we much more frequently en-
counter legitimate uses of the executive
privilege than we do when we seek to ob-
tain information about the expenditure
of the funds which have been appropri-
ated for economic aid.
So, although I shall discuss for a few
minutes the fact that we are seeking to
obtain from the ICA information about
what has happened to the, funds appro-
priated for economic aid, under the for-
eign aid program, I do not want that to be?
interpreted in the future as seeming to
be a concession by me that Congress
would be acting beyond its prerogatives
if it sought to obtain from the executive
branch information in regard to what
happens to funds which have been ap-
propriated for military aid.
, Not one of us,,to_my,,knowledge,_ever
.has ask:the.-adrainis=
tration:for information in regard_to_any
matter which would involve -top mili-
tary secrets. In view of the Exe-eutiv-e
Powers of the President, I do not think
we should attempt to obtain information
from the President which could, by mean
of the process of deduction, result in the
disclosure of information about a mili-
tary secret, which would be helpful to a
potential enemy. In such cases, all the
117751
President would have to do would be to
say, "I cannot give you this information,
because it relates to matters which, in
my opinion, as Commander. in Chief, I
must keep secret, even from the Con-
gress."
Here, again, history shows that It
-Presidents have leaned over backwards in
trying to cooperate with the Congress
in providing all the information which
could be given to Congress without hav-
ing the President violate what he con-
sidered to be his duty, under the Con-
stitution not to make public information
which, in his opinion, the best interests
of the Nation required him to keep secret.
It Vecomes a matter of judgment and
of degree, and also a matter of whether
there is an intent and a desire on the
Part of the Executive at any given time
to try to cooperate with the legislative,
elected officials of a free people, and to
try to carry out what'I believe was obvi-
ously intended in connection with our
Constitution?namely, that the branches
of the Government work, together, not
against each other. When they come
to an issue on which there is an honest
and sincere difference of opinion, the
two bodies involved?the _ legislative
branch and the executive branch?
should carry out their constitutional
powers under our-system of checks and
balances?which, in the case of a meas-
ure passed by the legislative branch,
would mean a Presidential veto of that
act of Congress, following which the
Congress would have the right to over-
ride the veto by means of the necessary
two-thirds vote; or, in this case, the
right of the President to say, "I exercise
the Executive privilege in this case- be-
cause in my judgment it will not be in
the national interest to make this par-
ticular information available, to you."
But that is quite different from doing
what I respectfully submit this adminis-
tration has attempted to do; and I- be-
lieve that the memorandum of the At-
torney General, to which I shall refer
later, makes that clear?namely, that
the President issued to the Defense De-
partment a directive in which, in effect,
he said to its employees, "You are free
to exercise my Executive privilege." Mr.
President, to that, I will never agree. _
I intend to ,insert in the RECORD a
considerable amount of the material I
have prepared in connection with this
argument, Mr. President. However, the
development of the legislative history
in regard to this Amendment is so im-
portant that we must hot permit the
amendment to go through the Senate
today with only the small amount of dis-
cussion which has occurred thus far in
regard to the importance of this Con-
stitutional issue.
So, Mr. President, I shall take a few
moments more to discuss some of the
early history; and then I shall insert in
the RECORD the remainder of my com-
ments on the specific cases, and thus
saVe a great deal of time.
Mr. President, that account of the
Cabinet's conclusion, was obtained from
Thomas Jefferson's writings; but it was
not a full account.
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17752 CONGRESSIONAL RECORD ? SENATE September 12
Next I wish to call attention to an ac-
count in Freeman's biography of George
Whington:
'As
copies of St. Clair's reports, covered
. by this message were sent precisely as re-
ceived, and when published, they were com-
plete. Not even the ugliest line on ,the
flight of the beaten troops was eliminated.
Washington had learned long previously the
protective value of candor in dealing with
the American people and he knew that one
reason for their trust in him was their
belief he would? tell them the whole truth.
s Mr. Wiggins puts it, in the light
of this more complete account of that
episode, can it possibly be argued that
it sustains the position of the Depart-,
. ment of Justice or that it supports Wol-
kinson's statement that the Executive
has always prevailed?
(
T Cabinet
House demanded the papers.
The Cabet agreed that the House
might institute inquiries. It thought it
might call for papers. It thought the
President should exercise discretion,
but in this case decided to make all the
PaPers_available. The Cabinet felt the
House inquiry should have been directed
to the President, and not his department
heads, but all the papers were nonethe-
less produced.
I want to repeat that, Mr. President:
The Cabinet, at the very beginning of
this Republic, agreed that the House
might institute inquiries. It thought it
might call for papers. It thought the
President should exercise discretion, but
in this case decided to make all the
papers available. It felt the House in-
quiry should have been directed to the
President, and not his department heads,
but all the papers were nonetheless pro-
duced.
That is the record which Thomas
Jefferson, a member of that first Cabinet,
leaves as to its judgment on the nature
of executive privilege.
I think that is,pretty sound procedure
today, too. All we are suggesting, in
effect, in the amendment offered by tile
Senator from Virginia, is a sort of a
stopgap for the time being, until, in the
next session of Congress, we can go into
a fuller consideration of this problem
by a bill containing broader language,
so that if the ICA refuses the Appropria-
tions Committee information that it
seeks as to what is happening to appro-
priated funds for economic foreign aid,
the President shall then make the de-
cision himself on the specific request,
and the President shall certify that the
information shall not be available to the
Congress.
. Listen to the language of the Robert-
son-Ellender-Humphrey amendment:
None of the funds herein appropriated
shall be used to carry out any provision of
(this act) or with respect to any project or
activity, after the expiration of the 35-day
period?
The period of 35 days, instead of 20
days, has been accepted?
which begins on the date the General Ac-
counting Office or any committee of the
Congress, or any duly authorized subcom-
mittee thereof, charged with considering leg-
islation or appropriations for, or expendi-
tures of, the International Cooperation Ad-
ministration, has delivered to the office of
the Director of the International Coopera-
tion Administration a written request that it
be furnished any document, paper, commu-
nication, audit, review, finding, recommen-
dation, report, or other material relating to
the administration of such provision by the
International Cooperation Administration in
such country or with respect to such project
?or activity, unless and until there has been
furnished to the General Accounting Office,
or to such cOmmittee or subcommittee, as
the case may be, (1) the, document, paper,
comlnunication, audit, review, hurling, rec-
ommendation, report, or other material so
requested, or (2) a certification by the
President that he considers the disclosure
of such document, paper, communication,
audit, review, finding, recommendation, re-
port, or other material to be contrary to the
public interest and has forbidden its being
furnished pursuant to such request.
AMENDMENT IN ,KEEPING WITH HISTORIC
INTERPRETATION OF EXECUTIVE PRIVILEGE
How sound in American history this
amendment is. How fully in keeping
with this historical record that I 'am
putting into the CONGRESSIONAL RECORD
this afternoon. Starting back in 1792,
when the House sought certain infor-
mation from a Government department,
and the President's Cabinet met, as I
just got through pointing out, the
Cabinet thought that the request should
have been directed to the President him-
self, instead of to a department of Gov-
ernment, but the Cabinet thought, and
the President agreed, that the papers
asked for, granting of which was dis-
cretionary with the President, under the
circumstances of that particular case,
should be granted to the House com-
mittee.
I say that is 1959 all over. The same
problem is with us. What has happened
in the meantime? In the meantime it
has become a common practice for con-
gressional committees to make their
requests for information from executive
departments, just as they did in 1792.
But until recently, Mr. President, when
the Congress sought information from
some executive department, the execu-
tive department sought a ruling from
the White House as to whether or not
the information should be made avail-
able ?
This administration is trying to
change this matter of personal execu-
tive privilege into departmental execu-
tive 'privilege; and I say that is not con-
templated by the Constitution; it is not
authorized by the Constitution; and, in
my judgment, if we can ever get the
question before the Supreme Court for
a judicial determination, it will not be
sanctioned by the Court, on constitu-
tional grounds.
So'all the Senator from Virginia is do-
ing at the present time is, if one wants
to put it this way, making it perfectly
clear that a denial of a request for in-
formation from ICA must receive the
President's personal attention by this re-
quirement of a Presidential certification
that the material is to be denied. ?
I would go further. I would draw the
Issue as the Senator from Okahoma
[Mr. MONRONEY] suggested that it be
drawn; but, if I understood the Senator
from Okahoma correctly, it was his posi-
tion that perhaps for the time being we
should go only as far as the Robertson-
Ellender-Humphrey amendment goes,
with a notice to the administration that
by so doing we concede nothing and that
by so doing we give notice that come the
next session of Congress, we intend to
take this matter up again. We should
seek to get it clarified further and en-
act legislation that will then come to
grips with the administration with a
provision that impounds funds so far as
concerns making any more funds avail-
able for any particular project about
which we seek information being denied
to us by the President.
Until Congress enacts that kind of
legislation, it is going to be very difficult
to get the question at issue before the
Supreme Court for a decision. I think
this matter has now taken such propor-
tions, Mr. President, and is so threaten-
ing our legislative rights here in the
Congress, that we need to get the ques-
tion before the Supreme Court for a
final determination.
CONGRESS SHOULD REOPEN MATTER NEXT YEAR
If the Monroney amendment were
pressed at this time I think it would ac-
complish that purpose, but in a spirit of
great cooperation, I am not going to
press for it. I am going to accept the
Robertson amendment although, as I
say, I think it is a rather toothless
amendment, It is hardly aught but a
serving of notice of our insistence that
we are not receding from any of our
rights, and it has the additional effect of
at least putting the President in a posi-
tion where he is bound to file a certifica-
tion called for by the act if he wishes to
get the money for the project.
As I interpret the amendment, if the
President routinely gives certification,
there is no language in the amendment
which would lay a basis for our doing
anything about it. The Senator from
Virginia [Mr. ROBERTSON], if I under-
stood him correctly, said we had the
power of the purse. We have the power
of the purse as to the next appropria-
tion bill, but we would not have any au-
thority over the money already appro-
priated unless language were put in
along the lines of the language proposed
by the Senator from Oklahoma [Mr.
MONRONEY].
On the other hand, I am never going
to take the position with respect to our
present President or any other, a man
who has been elevated to the greatest
office not only in our country but in the
world, that once there is laid on his desk
the language of the Robertson amend-
ment, which provides for a request for a
certification?and that is about the best
that can be said for it?that a President
is going to take lightly the filing of such
certification. I think this or any other
President would respect the purpose and
the intent of such legislation.
PRESENT CONTROVERSY OVER ICA EVALUATION
REPORTS
So I think it is in effect stop-gap leg-
islation which' will serve notice on tbe
administration that we do not feel very
kindly about the number of times we
have been denied, not by the President
personally, but by his departments and
executive officials, information to which
we think we are entitled if we are to
carry out our legislative trust to the
American people. '
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1959 CONGRESSIONAL RECORD ? SENATE
In the Foreign Relations- Committee
this year we spent a great deal of time
discussing this problem, because we were
concerned about the evidence being sub-
mitted to us and the allegations being
filed as to corruption, inefficiency and
waste in the administration of the For-
eign Aid program. _
We knew the administration had on
file a whole series of so-called evaluation
reports, that is, reports on the operation
of the foreign aid program, prepared
for the administration by competent ex-
perts who had been sent out to make a
survey, to take a "look-see," to make an
analysis of the administration of the
foreign aid program and report back to
the President through' the Department
of State. This has become known in
this debate as the ICA evaluation report.
Consistently the ICA has denied us
those reports. I want the American peo-
ple to know-as a member of the Foreign
Relations Committee that those reports
would have been of great help to us in
evaluating the operation of the foreign
aid program in various parts of the coun-
try. Making those reports available to
us would have saved the taxpayers of
this country many, many thousands of
dollars.
Let me tell, Senators, what is bound
to happen now. The Senator from Vir-
ginia referred to it in passing. Let us
consider the investigation that the Com-
mittee on Foreign Relations has been
conducting in connection with charges
that there has been great waste in Viet-
nam. There is an evaluation report on
Vietnam, and we would like to have seen
it. What is so secret about that'? As
the Senator from Virginia [Mr. ROBERT-
SON] has indicated, we are going to have
to send out legislative investigatory com-
mittees to duplicate what this group of
evaluators sent out by the executive
branch of the Government have already
done.
Does that make sense? It makes non-
sense to me, so far as the duplication of
expenditure is concerned. But the Sen-
ate still has the duty to get the facts as
the basis for future legislative action.
If the executive branch of the Govern-
ment will not cooperate with us by giv-
ing us the information they have already
collected, and which we can judge for
ourselves, we may have to conduct in-
dependent investigations. It would be
much more sensible to' make use of their
reports. After we had studied their
evaluation reports, we could decide
whether we would be justified in con-
ducting a new and independent investi-
gation.
Mr. President, it is just horsesense. I
do not want them to turn over to us any
top secrets which would injure my coun-
try if they should get into the hands of
potential enemies. When I had a repre-
sentative of the State Department on
the stand for the Committee on Foreign
Relations, I asked him some questions
about the reason for their action. Now,
let the record speak for itself. In the
course of my examination of that State
Department official, I asked him how
many people had seen these evaluation
reports this group of evaluators filed
with the Department of State, and
through the Department of State with
the President. The testimony will show
he said some 25 or 30.
I asked him, "Who are they? Of the
25 or 30, how many of them are elected
officials?"
If you count the President and the
Vice President, there would be two. Of
course, we all know the President really
sees very few of them. We know they
are handled by appointed officers who
were riot elected. They are handled by
people in the ICA and in the Department
of State. In fact our discussion in
committee showed there was no cer-
tainty that the Vice President could see
them. It was agreed if he sought to see
them, in all probability he would be al-
lowed to do so. But he is not neces-
sarily assured the right to see them.
And so we have this information that
the congressional committee seeks to
look at in order to reach a judgment as
to whether foreign aid is being properly
administered in Vietnam, Laos, or any-
where else where we are spending so
much money.
This information is available - to a
group of appointed individuals or indi-
viduals serving as civil servants under
our career systems If they can see them,
as we-said in our discussion in the com-
mittee, what is so wrong with letting
members of the Committee on Foreign
Relations of the U.S. Senate see those
reports? Why may we not see them? '
Why may not we see them, in order
that we may better determine whether
or not we are appropriating too much
money, in order that we may better de-
termine whether or not we should
modify the foreign aid law in some par-
ticular, perhaps in respect to personnel?
If evaluation reports show that there
are inefficiencies or wrongdoings, per-
haps it is because our standards for
selecting personnel are not right.
? I have been at. a loss to find a single
good reason why the Foreign Relations
Committee. of the Senate and the For-
eign Affairs Committee of the House, to
which committees come requests from
the administration for authorization for
the whole mutual security program, can-
not be taken into the confidence of the
administration. At the very least they
should be allowed to take a look 'at the
evaluation reports, 'which have been filed
in the field. After all, some 25 or. 30
appointed officers or civil service officers
of the State Department or the ICA are
allowed to see the reports. If the pres-
ent arrangement makes sense, I become
lost in that kind of logic. It does not
make sense. It is not in the' interest of
the American people. ?
What do I think the general practice
should be? The general practice should
be what it has been on the part Of past
Presidents throughout our history.
Starting with the case I just cited, back
in 1'792, it was thought that the ma-
terial and papers asked for were papers
which the President, at his discretion?
and the Cabinet made that very clear?
should make available to the House com-
mittee, and did. Thus it will be seen
that that is the position of President
after President, decade after. decade, as
issues of Executive privilege have arisen
17753
between the Congress and the President.
No President has ever given up his con-
stitutional right to exercise Executive
privilege when he has exercised discre-
tion in making material asked for by
the Congress available to the ?Congress,
because he reached the conclusion that
his action would not in any way jeop-
ardize the public interest.
We are asking that the traditional
practice be followed. But we have run
up against a stone wall with this ad-
ministration. We have run up against
a President who has, in effect, given
blanket authority to his departments to
render the decision for him as to
whether or not the material should be
made available. They notify the Con-
gress that it is not to be available, and
we are stopped there.
What the Senator from Virginia seeks
to do by this amendment is to provide
that the President shall certify that the
material should not be available, and
give his reasons.
THE SAY TREATY
The second historical episode I wish
to mention this afternoon is that in-
volving the request of the House of Rep-
resentatives for instructions and papers
furnished our ambassadors who negoti-
ated the Jay Treaty. The facts were all
broughtlYtrrnlie great journalist who
is known, I am sure, to each one of us,
in the .statement he made to the Con-
gress. I refer, of course, to Mr. Wig-
gins, of the Washington Post.
I continue to quote from his state-
ment:
This case no more sustains the claim to
sweeping powers of nondisclosure than the
first episode. Here, President George Wash-
ington refused the papers on the sound and
specific constitutional ground that the Sen-
ate and not the House was entrusted with
authority to advise and consent on the mak-
ing of treaties. It was because he did not
acknowledge that the House was involved
In the treatymaking power that he denied
the requested papers. This is made plain
in the quotations from the President's mes-
sage by the Department of Justice.
The issue involved appears with greater
clarity as a result of a subsequent situation
involving diplomatic papers in which Presi-
dent John Adams did respond to a House
resolution under conditions that made the
House request constitutional.
On Monday, April 2, 1798, the House called
up the following resolution:
"Resolved, That the President of the
United States be requested to communicate
to this House, the instructions to, and des-
patches from the envoys extraordinary of
the United States to the French Republic,
mentioned in the message of the 19th in-
stant" (which reported the failure of the
negotiations with France).
It was then proposed to add the following
amendment: "excepting such parts of said
papers as any existing negotiation may ren-
der improper to be disclosed."
Then Mr. Nicholas said he "did not think
It would be right in the present situation of
things?when we are told by the President
that the negotiation with the French Re-
public is at an end, and that there is no
chance of an accommodation taking place
between the two countries?to agree to any
exception of this kind. Called upon to act
in this desperate state of things, he thought
it would not be right for any part of the
papers which had led to it to be withheld
from Congress. The President having
thought fit to declare that all negotiation is
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17754 CONGRESSIONAL RECORD ? SENATE
at an end, that he is without hope of an
accommodation, it could not be thought
proper that the legislature should be
called upon to act upon less information
than that upon which the President himself
had acted. He thought the Constitution
must have. intended this when it placed the
power of declaring war in their hands; to
suppose the contrary, would be to suppose
an absurdity."
The author of the amendment wished to
withdraw it rather than have a vote on it
(that seemed likely to be unfavorable) and in
so doing stated that he thought the 'Presi-
dent had the constitutional power to with-
hold such parts of the papers as he felt it
improper to communicate.
Mr. Harper said, "The present call for pa-
pers stood upon a very different ground from
that made when the British Treaty was un-
der consideration; the objections, of -course,
against that call would not apply in the
present case, as the papers now called for
were wanted to throw light upon a subject
confessedly within the constitutional powers
of the House. He therefore held the call not
only to be constitutional but expedient. Nor
could he see any ground for the amendment;
if the House had a constitutional right_ to
ask for information, they had a right to
ask for the whole information, and the Presi-
dent would judge how far he could with
propriety comply with the call. But since
the House did not know that the communi-
cation of any of these papers would be im-
proper, the whole ought to be called for; and,
if the President should think it proper to
retain a part, he would doubtless give suffi-
cient reasons to the House for doing so. On
a former occasion when it was moved to
modify the resolution calling for papers in
the way now proposed, the motion was re-
jected, because it went to alter the principle
contended for; and he believed the same
reason would lead to a rejection of the pres-
ent motion."
The amendment was then defeated and
the resolution itself adopted, by a vote of
1.-66-to 27.
On April 3 the President sent a message
to Congress stating: "In compliance with
the request of the House of Representatives
expressed in their resolution of the 2d
of this month, I transmit to both Houses the
instructions to and dispatches from the En-
voys Extraordinary of the United States to
the French Republic, which were mentioned
in my message of the 10th of March last,
omitting only Some names, and a Vw expres-
sions descriptive of the persons.
...,,,, What now of the allegation that "the
Executive has always prevailed"? ,
Here is a perfect illustration of the limits
of Executive privilege, of the difference be-
tween a request that was unconstitutional
because it exceeded the powers of the House,
and one that was constitutional because it
was within the powers of the House. There
is, as well, an illustration of the readiness of
the House to accept the sound reasons of the
Executive for withholding the names that
went down in history as participants in the
XYZ affair.
It is not to be overlooked that the disclo-
sure of the instructions to our ambassadors
in the matter of the Jay treaty would have
? divulged to a hostile House that the Embassy
had achieved few of the things it was in-
structed to obtain. And it is not to be for-
gotten that Adams dealt the House Repub-
licans a sharp political rebuff by the XYZ
disclosures.
So, Mr. President, from the very first
administration of this Republic the first
President of our Nation recognized that
he had the personal constitutional right
to exercise executive privilege, but he
also appreciated the fact that he had
the executive duty to cooperate with the
legislature, the Congress, to make avail-
able to the Congress all such infor-
mation that it felt it might need in car-
rying out its legislative duties. I rec-
ommend the record of Washington, Jef-
ferson, Madison, and all the other
Presidents up to President Eisenhower,
because they have carried out in the
Main, with certain exceptions which I
will include in the RECORD later, the the-
sis that I am making in the RECORD this
afternoon, namely, that this matter of
executive privilege is personal to the
President. It is' not a privilege that he
can delegate by way of a blanket Execu-
tive order to men in charge of depart-
ments or working in departments, men
who never were elected by a free peo-
ple. It is a responsibility-that the Presi-
dent must assume personally.
That is what the Robertson amend-
ment as far as it goes?and it does not
go nearly far enough?purports to make
perfectly clear in the action that the
Senate is asked to take.
CONGRESS, TOO, HAS CONSTITUTIONAL
PREROGATIVES
I am going to go as far as the Rob-
ertson amendment goes, but I hope that
come next session Congress will go Much
farther and will pass legislation which,
in my judgment, we have a constitu-
tional right to pass. I am perfectly will-
ing to see Congress pass the legislation
and then let the U.S. Supreme Court
render a decision as to whether or not
? we are acting within the framework of
the Constitution.
The President undeniably has his pre-
rogative of Executive privilege. But it
is also undeniably the prerogative of the
Congress to appropriate money and to
lay down terms and conditions for its
expenditure.
We _should pass legislation which
makes Cleai that If we :cannot . get mf or-
mation from the. ICA,,for example, on
hoVsi the foreign aid prOgram-is:b`eing
administered, we :will not ,p.ermit,addi-
lioriarfilliditii:13e- expended oii any proj-
ect until such information is made avail-
able to us. When we know that these
agencies have reports which have been
prepared at the expense of the American
taxpayers, wheri we know that groups of
experts have been sent all around the
. world to make these evaluation reports,
and then they take the position under
executive privilege that those reports
shall be denied to us and force us to
spend more taxpayers' money to make
congressional investigations of the same
subject matter, I am willing to impound
their project funds by appropriate
legislation.
am willing that such legislation be
,_pas-leillipon by the U.S. Supreme Court,
and I am perfectly willing to say, in my
own judgment, if that legislation is
properly worded it will be sustained by
the Court as a proper exercise under the
Constitution of our checking powers
upon the executive branch of the Gov-
ernment. W-hen the funds for any proj-
ect are stopped, as herein suggested, we
should then be in a good position to get
the matter at issue for Court determi-
nation.
Mr. President, from the very begin-
ning of the history of our country this
September -12'
interpretation of the executive privilege
which I am making in 'this speech this
afternoon has been followed by our Pres-
idents until this administration took of-
fice. Since that time we have had a
great increase in refusals on the part of
the President to give us information
which we need. Worse than that, we get
a directive that in effect seeks to dele-
gate this executive privilege to subordi-
nates within the executive branch of the
Government, and I believe, Mr. Presi-
dent, and I speak most respectfully but
firmly, that the Presidbnt is guilty of an
abuse of the cOnstitutional prerogative
- in assigning such executive privileges.
Mr. President, just a word or two
about Thomas Jefferson's administra-:
tion. This is the next item discussed in
the Wiggins article.
I think Mr. Wiggins did a remarkable
job of legal research in collecting and
preparing this analysis of the alleged
precedents that Professor Wolkinson
cited in his Law Review article. His
analysis demolishes the Wolkinson arti-
cle because it points out that although
the Presidents alluded to their right of
executive privilege time and time again
after stating that they had the right to
refuse the papers, they in fact made the
papers available.
The Wiggins article continues:
PRESIDENT JEFFERSON'S ADMINISTRATION
The House of Representatives' demand
upon Thomas Jefferson for the papers in the
Burr case is next cited. It is not easy to
discover what this episode proves about ex-
ecutive prerogative. In making its request,
the House asked for no papers "such as he
may deem the public welfare to require not
to be disclosed."
Even though the resolution ,itself ex-
empted papers the President thought should
not be disclosed, Jefferson felt obliged to
explain the nature of the papers that he did
not convey, ;that is, matter "chiefly in the
form of letters, often containing such a mix-
ture of rumors, conjectures, and suspicions
as renders it difficult to sift out the real
facts and unadvisable to hazard more than
general outlines, strengthened by concur-
rent information or the particular credibil-
ity of the relator. In this state of the evi-
dence, delivered sometimes too, under the
restriction of private confidence, neither
safety nor justice will permit the exposing
names, except that of. the principal actor,
whose guilt is placed beyond question."
The House invited the President to with-
hold everything that he 'thought the public
welfare required not to be disclosed. He
complied with its request, and exceeded it
because he was not cOntent to exercise an
outright discretion without full explanation
of what he withheld and why he withheld
it.
Mr. President, what does the Jefferson
case prove in regard to his exercise of
executive privilege in regard to the Burr
controversy? Mr.:Wiggins asks:
Is this another of the situations in which
the executive has ? unvaringly prevailed?
When the President does not disclose papers
he was not asked to divulge, does this shed
much light on his right to the sort of privi-
lege the Justice Department memorandum
claims for the Office?
It should be noted at this point that the
Burr trial is often cited as an example of
executive refusal to comply with a subpena
duces tecum. In his remarks during the
Burr trial, Chief Justice John Marshall had
indicated that he would require the attend-
ance of the President and asserted the power
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1959
CONGRESSIONAL RECORD ? SENATE
of the Court to compel his attendance. But
when the writ was drawn up, it contained
this statement:
"The transmission to the Clerk of this
Court of the original letter of General Wil-
kinson, and of copies duly authenticated
of the other papers and documents described
In the annexed process, will be?admitted as
sufficient observance of the process, without
the personal attendance of any or either of
the persons named.,
"Thus Marshall did not issue the chal-
lenge to the President which he had indi-
cated in Court that he would issue, and con-
sequently historians have been misled into
believing that Jefferson defied the order of
the Chief Justice."
The Burr trial did produce, in the oral
remarks of the Chief Justice, a sweeping
assertion of judicial power and in the state-
ments of Thomas Jefferson, equally sweep-
ing allegations of executive immunity to ju-
dicial process, but it was a debate, not a
legal collision.
THE JACKSON EPISODE
The Attorney General's memorandum next
cites a case in the Jackson administration.
The example cited?that of an investiga-
tion of a Jackson appointee accused of land
frauds?undoubtedly is to the point but it
probably is not one that any modern Presi-
dent, in the same circumstances, would fol-
low.
There is a curious twist in this episode.
One of Jackson's reasons for refusing the in-
formation was that the Senate was investi-
gating the matter in secret sessions under
circumstances that would deprive the ac-
cused of one of his basic rights?"that of
public investigation in the presence of his
accusers and of the witnesses against him."
Executive .secrecy_was_thus _invoked in re-
sponse to Senate secrecy.
. President Jackson's disputes over yielding
information to Congress were frequent.
In the light of his refusal to yield land
fraud papers noted in the Department of
Justice summary, it is remarkable that in
his celebrated "protest" of a Senate censure
resolution in 1834, he said:
"Cases may occur in the course of its leg-
islative or executive proceedings in which
It may be indispensable to the proper ex-
ercise of its powers that, it should inquire
and decide upon the conduct of the Presi-
dent or other public officers, and in every
case its constitutional right to do so is
cheerfully conceded."
Jackson refused to comply With Senate
and House requests on many occasions.
On December 12, 1833, he refused a Senate
request for copies of a statement he was al-
leged to have made to the heads of his ex-
ecutive departments.
On January 6, 1835, he rejected a House
request for communications over the north-
eastern boundary dispute, settlement of
which was then in progress.
Against these examples of President Jack-
son's flat refusal to convey requested papers,
there also must be set his repeated, if some-
times reluctant, acquiescence to the demands
of Congress. TheSe affirmative responses
were very numerous.
On January 7, 1834, he sent the House a
copy of a contract fol, the construction of a
bridge across the Potomac, together with all
the information the Secretafy of the Treas-
ury "is now able to communicate" on the
subject.
On February 12, 1834, complying with a -
House resolution, he transmitted to the
House a list of presents received from for-
eign governments by officers of the United
States, on deposit in the State Department.
On March 8, 1834, responding to a House
resolution, he sent up instructions and other
papers in connection with trade with Cuba
and Puerto Rico.
On March 20, 1834, in response to a Sen-
ate resolution, he sent up copy of instruc-
tions given the. U.S. Minister to Great
Britain and of correspondence between the
Minister and the British Government on the
condemnation of the ship Olive Branch.
On June 13, 1834, Jackson angrily replied
to a Senate resolution asking for the first
"official communication which was made to
Andrew Stevenson of the intention of the
President to nominate him as minister pleni-
potentiary to England and Ireland." He
said compliance might be deemed an ad-
mission of Senate right to confidentail cor-
respondence of this description and that
he did not acknowledge such a right. "But,"
he added, "to avoid misrepresentation I
herewith transmit a copy of the paper in
question, which was the only communica-
tion made to Mr. Stevenson on the Subject."
On January 13, 1835, Jackson sent to the
House "copies of every circular or letter of
instruction emanating from the Treasury
or War Department since the 30th day of
June last, and addressed to either the receiv-
ing or disbursing officers stationed in States
wherein land offices are established." his
was in response to a House resolution.
On the same day, Jackson angrily re-
proached the Senate for a resolution de-
manding a copy of any report made to him
by any director of the Bank of the United
States with reference to certain notes and
bills of exchange. He ;thought the request
improper. However, he said, "for the pur-
pose of preventing misapprehension and in-
. justice, I think it proper to communicate
herewith a copy of the only report made to
me by any director or directors."
There were further affirmative responses
to congressional requests for various infor-
mation on these 1836 dates: February 9,
10, 15, 18, and 29, April 8, May 14, 27, and
27, and July 1.
It is thus not accurate to say of even the
Jackson administration that the President
always prevailed.
Mr. President, I summarize my re-
marks on the Jackson administration by
saying that Jackson followed the same
policy as that followed by Washington
and Jefferson. He recognized that the
Constitution gave to the President of the
United States the right of executive priv-
ilege, but he also recognized that he had
no right to exercise it unless he was
satisfied that, in fact, the national secu-
rity and public interest and welfare dic-
tated that he exercise it.
Jackson, like other Presidents, went
a long way in explaining the reasons for
'any ?refusaLto.supply. Congress with.in-
-f6rmation which it requested. But what
are we confronted with under the Eisen-
hower administration? We are con-
fronted with a blanket refusal to supply
us with any information for which we
ask, if any underling Within the execu-
tive branch, presided over by the Pres-
ident, decides that he does not want to
make it available to Congress.
I wonder if the President really is at a
loss to understand why these criticisms
of him are being made, and have been
made for the past several years, in Con-
gress? Does he not know that they stem
from his taking a blanket refusal ap-
proach to the matter of Executive priv-
ilege in contrast with the attitude, fair
and reasonable, taken by so many of his
predecessors in office.
It is President Eisenhower who has
drawn this issue. Congress ought to
meet it head on. That is why I think
that Congress, in the next session, should
pass legislation along the lines of the
suggestion of the Senator from Okla-
17755
a statement to us personally, fails to give
home, [Mr. MONRONEY], which will make
very clear to the President that Congress
is willing to let the matter go to the
courts for a constitutional determination /
in those instances in which we ask for ,
information and the. President, througp"
a reason for not supplying the materiar
to us.
It is important that this great historic
debate which has been running on over
the decades finally be brought for judi-
cial determination, now that President
Eisenhower has gone so much further
. than any other President has gone in
respect to this matter. He has done this
by handing down what amounts, to all
intents and purposes, to an Executive
order which seeks to delegate the per-
sonal prerogative which the Constitution
gives to the President of the United
States in the name of what we have come
to call, under the separation of powers
doctrine, the Executive privilege preroga-
tive.
Now I turn to the administration of
President Tyler, The Wiggins article
states:
THE TYLER CASE
President Tyler's message to Congress on
the Cherokee Indian matter is cited next in
the Department of Justice memorandum.
And the message should have a place in any
collection of comment on Executive preroga-
tive.
The House of Representatives had called
upon the President for reports made to the
Department of War by Lieutenant Colonel
Hitchcock in the investigation of affairs of
the Cherokee Indians, together with all in-
formation about frauds he was to investi-
gate, and also all the facts in possession of
the Executive.
The House was not ,content with the
partial information given it and at its next
session renewed its request in more sweeping
terms.
The most pertinent paragraph of Tyler's
eloquent argument states:
"If by the-assertion of this claim of right
to call upon the Executive for all the in-
formation in its possession relating to any
subject of the deliberation of the House, and
within the sphere of its legitimate powers,
it is intended to assert also that the Execu-
tive is bound to comply with such call with-
out the authority to exercise any discretion
on its part in reference to the nature of the
information required or to the interests of
the country or of individuals to be affected
by such compliance, then do I feel bound,
in the discharge of the high duty imposed
upon me `to preserve, protect, and defend
the Constitution of the United States,' to
declare in the most respectful manner my
dissent from such a proposition."
The able message of President Tyler is not
an assertion of ran uncontrolled discretion or
unlimited right to withhold. With great
bare it enumerates some of the particular
situations in which matters must be kept
confidential: pending law-enforcement in-
vestigations, incomplete inquiries before
their truth or falsity has been ascertained,
all papers merely because they concern mat-
ters about which the House is deliberating.
He challenges this as the sole test of avail-
ability (and who wouldn't). He thinks
certain communications and papers are privi-
leged and that the general authority to com-
pel testimony must give way in certain cases
to the paramount rights of individuals and
the Government."
This is a strong and an able argument for
executive prerogative in certain cases and
an effective presentation of the claim of
discretionary power. '
Declassified and Approved For Release @50-Yr 2014/03/12 : CIA-RDP61-00357R000500120015-8
Declassified and Approved For Release @50-Yr 2014/03/12 : CIA-RDP61-00357R000500120015-8
17756 CONGRESSIONAL RECORD? SENATE September 12
However, the Department of Justice mem-
orandum refers not only to the message
but to "President Tyler's refusal to com-
municate to the House of Representatives
the reports relative to the affairs of the
Cherokee Indians and to -the frauds which
were alleged to have been practiced _upon
. them."
s
As a matkr of fact, while making?,s.,state-
rTiend principle?PfaidentITiler, never-,
?tliereFET-did_give the Housi.?whaf:it, as-ked-
.;gIn.--die verf -message discussed, he said:
"I have thought proper to direct that the
report of Lieutenant Colonel Hitchcock con-
cerning the frauds which he was charged to
investigate be transmitted to the House of
Representatives, and it accordingly accom-
panies this message."
Tyler said he did this to "avoid even the
appearance of a desire to screen any, and
also to prevent the exaggerated estimate
of the importance of the information which
is likely to be made from the mere fact of
its being withheld."
He sent along all the facts about the Cher-
okees exeept some correspondence "not sup-
posed to be within the intent of the reso-
lution."
He assured the House that "all the papers
In the Wax Office or its bureaus known or
supposed to have any relation to the alleged
frauds which Lieutenant Colonel Hitchcock
was charged to investigate are herewith
transmitted."
How does this comport with Mr. Wolkin-
son's statement that "in the great conflicts
which have arisen, the administrations of
Washington, Jackson, Tyler, Cleveland, Theo-
dore Roosevelt, and Herbert Hoover, the Ex-
ecutive ha.s always prevailed?"
In most of Mr. Wolkinson's examples, the
Congress prevailed, and got precisely what
it sought to get. In the case of Jay Treaty,
the President prevailed, but not on the broad
ground of executive prerogative but on the
solid ground that the House lacked constir
tutional authority to advise and consent on -
treaties. The Jackson episode, of all those
prior to the Buchanan administration, seems
to be the only instance in which it might be
' said that "the executive prevailed" in an as-
sertion of absolute, unqualified discretion-
ary right to withhold.
Some of the other and later examples
ought to be explored under circumstances in
which time and space permit. Certainly, the
examples prior to the Civil War period, in the
Department of Justice's own memorandum,
In the light of history, do not support either
the conclusion of Mr. Wolkinson, who first
compiled this information or the broad as-
sertions of the Justice Department. Histori-
cal fact simply is overwhelmingly at war with
the law as the Attorney Generals prefer to
view it.
Pertinent and interesting as later cases
may be, the early cases here examined arose
during the years when the Government was
taking shape and no subsequent examples
? could shed more light on the nature of this
separation of powers.
Mr. President, for the most part I
have used material which was prepared
in such scholarly fashion by Mr. Wig-
gins, of the Washington Post. ThisIna-
terial shows that the doctrine of execu-
tive privilege has not been exercised on
a blanket basis, and in keeping with the
pattern which President Eisenhower has
come to adopt.
It is quite fair and proper that the
Senator from Virginia should have taken
the position he took in committee, in
which he wanted language which went
much further than the language he now
proposes in his amendment. But in
keeping with his good sense of humor,
as he said to us earlier this afternoon
in the Senate, he simply did not have
the votes in committee; therefore, he
brought to the Senate this afternoon
language he believed would be helpful
to us in solving this problem as a sort
of stopgap proposition until the next
session of Congress, when we could adopt
the type of bill he indicated he would
favor, and which the Senator from Okla-
homa [Mr. MONRONET] suggested should
be adopted, with which suggestion I am
in complete agreement.
Mr. President, I have a substantial
body of .material on- this matter, which
I think is pertinent and ought to be
placed in the RECORD as a matter of
legislative history on this amendment
before it is ad vted. I shall not take
the time now to read it, because there
are so many other subjects I have ',.