generally "in the public interest" (subcommittee hearings, pp. 25722602). The claim was repeated by the President in signing the measure into law on August 12, 1958. (See exhibit II.) The Presidential message contended the legislative history of the bill shows that * It is not intended to, and indeed could not, alter the existing power of the head of an executive department to keep appropriate information or papers confidential in the public interest. This power in the executive branch is inherent under the Constitution. On the contrary, Congressman Moss made it clear during House debate on the bill that enactment of the freedom-of-information amendment did not involve congressional recognition of the broad privilege which the President has claimed. Congressman Moss explained that the purpose of the amendment was to prevent further misuse of the "housekeeping" law as a catchall for excessive secrecy and to require the executive branch to restrict its claims to the appropriate statutes: Mr. Moss. The amendment proposed by the committee restores the intent of the Congress that this be the statute upon which the head of a department shall rely for the formulation of rules and regulations governing the custody, use, and preservation of the records of the department. The reason the language is added that it is not authority for withholding is that in 3 years of careful study we have found far too many instances where executive departments have relied upon this statute as a clear authority to refuse information to the public or to the Congress itself. Mr. JOHANSEN. May I interrupt the gentleman at this point, because I think in my own mind I now have the nub of the issue. If this bill were adopted, what discretionary authority does the department head have to withhold information where it is not specifically provided by law that he must withhold information? Is there surviving with the adoption of this bill a discretionary authority in the department head to withhold information? Mr. Moss. I want to be very careful on this language because the gentleman is asking me if there is an inherent authority, as has been claimed by every Executive from Washington to Eisenhower. I would say that if there is such authority, if there is that inherent power, it is not affected by this change in this statute. But I will not concede that the broad and naked purpose claimed does exist in that. I want that very clear in my response. If it exists, it is not affected. Mr. JOHANSEN. But the gentleman does not concede that it exists? Mr. Moss. I would never concede that it does exist as broadly as is claimed. Mr. JOHANSEN. Then let me phrase the question in this way: What protection does the department head have with respect to his sense of responsibility to his office when in his honest judgment it is imperative that information be withheld, and yet when there is no bestowal of the authority by specific statute so to withhold information? Mr. Moss. There are 78 other statutory grants of authority to withhold. There are provisions of the Administrative Procedures Code which permit withholding for good cause found to be in the public interest and for a variety of reasons. We just do not want this statute to be cited. It is cited too often and it does not give the authority. It was not intended to give authority in this respect. They have abundant authority otherwise. Mr. JOHANSEN. Of course, I will say to the gentleman the question whether this was intended to give that authority may be a subject of honest dispute and it may be a point at issue. But, my concern is why, if there have been specific abuses of this statute, we cannot in proper legislation address ourselves to those specific abuses or categories of abuses rather than seeming by this section to blanket out totally any authority under the statute. Mr. Moss. One of the main reasons for taking this as a first step is to get them back to relating their claims of authority to the appropriate statutes and not to use this as a catchall for any claims that they may want to assert (Congressional Record, Apr. 16, 1958, p. 5887). The dangers of accepting the Executive claims of broad power outside the law to withhold public information were effectively set forth in a major Federal circuit court opinion (Reynolds v. U. S., 192 F. 2d, 987; 3d cir., 1951). The court pointed out it is but a small step from the sweeping claims of "executive privilege" to the assertion of a power to prevent disclosure of any records "merely because they might prove embarrassing to Government officers." Indeed it requires no great flight of imagination to realize that if the Government's contention in these cases were affirmed the privilege against disclosure might gradually be enlarged by Executive determination until, as is the case in some nations today, it embraces the whole range of governmental activities. In the most recent authoritative study of the executive privilege claim, Dr. Harold L. Cross emphasized the fact that the people and their elected representatives in Congress must cut back to size the Executive's claimed prerogative to restrict information about the dayto-day operations of the Government. He concluded: The executive branch as of now has no such specially privileged right of privacy as against the people, their Congress, or their courts. The claim to one harks back to royal prerogative and is made in a land where "there is reason to believe" the people have done something more than merely to change their kings. If such a "privilege" ought to exist let it be sought forthrightly by amendment of the Constitution or in legislation by the Congress * * *. (See exhibit III.) EXHIBITS EXHIBIT I [Press release of James C. Hagerty, Press Secretary to the President, May 28, 1958] THE WHITE HOUSE STATEMENT BY THE PRESIDENT This morning I talked with Secretary of Defense McElroy about the defense reorganization bill as reported to the House of Representatives. Three provisions of the reported bill directly conflict with the reorganization I proposed to the Congress. These three provisions continue to emphasize disunity and separatism within the Defense Department. They continue to imply congressional approval of wasteful duplications, administrative delays, and interservice rivalries. I have had convincing evidence that Americans everywhere favor a thoroughgoing reorganization of the Defense Department. The committee has acted commendably on most of the needed changes. But, in dealing with our Defense Establishment, pretty good is not good enough, and going part way is not going far enough. America, having started on this reorganization, wants the job done right. I earnestly hope, as does Secretary McElroy, that the changes needed for an effective reorganization will be made by the House of Representatives when this bill comes up for debate. Section 2 OBJECTIONABLE FEATURES OF DEFENSE REORGANIZATION BILL "SEC. 2. In enacting this legislation, it is the intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security; to provide a Department of Defense, including the three military Departments of the Army, the Navy (including naval aviation and the United States Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense exercised through the respective Secretaries of such departments; to provide for their unified direction under civilian control of the Secretary of Defense but not to merge these departments or services; to provide for the establishment of unified or specified combatant commands, and a clear and direct line of command to such commands, to eliminate unnecessary duplication in the Department of Defense, and particularly in the field of research and engineering by vesting its overall direction and control in the Secretary of Defense; to provide more effective, efficient, and economical administration in the Department of Defense; to provide for the unified strategic direction of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land, naval, and air forces but not to establish a single Chief of Staff over the armed forces nor an overall armed forces general staff." COMMENT The italicized language is best described as a legalized bottleneck. Itconstricts the authority of the Secretary of Defense; puts a premium on intransigence by lower Pentagon levels; blocks normal staff processes; 17 fails to express the intent of the committee as explained in its report; will, as the committee report itself asserts, cause "administrative chaos" if fully implemented. So, with this language, frictions, delays, duplications in the Defense Department would be given the color of legality. REMEDY Delete the italicized language in section 2. Section 3 "SEC. 3. (a) Section 202 (c) of the National Security Act of 1947, as amended (5 U. S. C. 171 (a) (c)), is amended to read as follows: “(c) (1) Within the policy enunciated in section 2, the Secretary of Defense shall take appropriate steps (including the transfer, reassignment, abolition, and consolidation of functions other than major combatant functions) to provide in the Department of Defense for more effective, efficient, and economical administration and operations and to eliminate duplication. However, except as otherwise provided in this subsection, no functions which have been or are hereafter established by law to be performed by the Department of Defense, or any officer or agency thereof, shall be substantially transferred, reassigned, abolished, or consolidated until thirty days after a report to the Congress in regard to all pertinent details in each instance shall have been made by the Secretary of Defense. “(2) Notwithstanding other provisions of this subsection, if the President determines that it is necessary because of hostilities or imminent threat of hostilities, and function, including those assigned to the military services by sections 205 (e), 206 (b), 206 (c), and 208 (f) hereof, may be transferred, reassigned, or consolidated and subject to the determination of the President shall remain so transferred, reassigned, or consolidated until the termination of such hostilities or threat of hostilities. "(3) Except as otherwise provided in paragraph (2) hereof, no major combatant function assigned to the military services by sections 205 (e), 206 (b), 206 (c), and 208 (f) hereof shall be transferred, reassigned, abolished, or consolidated until the first period of sixty calendar days of continuous session of the Congress following the date of report of such action to the Congress shall have expired without a concurrent resolution having been passed by the Congress in opposition to the proposed transfer, reassignment, abolition, or consolidation. No major combatant function shall be reported to the Congress for transfer, reassignment, abolition, or consolidation until after the Secretary of Defense shall have consulted in respect thereto with the Joint Chiefs of Staff. For the purposes of this subsection a combatant function shall be considered a "major combatant function" whenever one or more members of the Joint Chiefs of Staff disagree to the transfer, reassignment, abolition, or consolidation of such combatant function: Provided, That the Secretary of Defense has authority to assign, or reassign, to one or more departments or services, the development and operational use of new weapons or weapons systems." COMMENTS The italicized language is best described as the "everyone's out of step but me” provision. It vests astonishing authority in one military man without regard to the views of his military colleagues, the Secretary of Defense, the President, and the Congress; allows one military man to hold up defense improvements for many months and perhaps block them altogether; subordinates civilian judgment, authority, and responsibility; So, it is an endorsement of duplication and standpatism in defense and of the concept of military superiority over civilian authority. REMEDY Delete the italicized language in section 3. Section 3 "(4) Each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense exercised through the respective Secretaries of such Departments. COMMENT The italicized language is the same as appears in Section 2; again, the legalized bottleneck. REMEDY Delete the italicized language in section 3. Section 3 "(5) No provisions of this Act shall be so construed as to prevent a Secretary of a military department or a member of the Joint Chiefs of Staff from presenting to the Congress, on his own initiative, after first so informing the Secretary of Defense, any recommendations relating to the Department of Defense that he may deem proper." COMMENT The italicized language is best described as legalized insubordination. Itinvites interservice rivalries; invites insubordination to the President and Secretary of Defense; endorses idea of disunity and blocking of defense modernizations; suggests that Congress hopes for disobedience and interservice rivalries; is bad concept, bad practice, bad influence within Pentagon. REMEDY Delete the italicized language in section 3. EXHIBIT II [Press release of James C. Hagerty, Press Secretary to the President, August 12, 1958] THE WHITE HOUSE STATEMENT BY THE PRESIDENT I have today signed the bill H. R. 2767, to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. The purpose of this legislation is to make clear the intent of the Congress that section 161 of the Revised Statutes shall not be cited as a justification for failing to disclose information which should be made public. In its consideration of this legislation the Congress has recognized that the decisionmaking and investigative processes must be protected. It is also clear from the legislative history of the bill that it is not intended to, and indeed could not, alter the existing power of the head of an executive department to keep appropriate information or papers confidential in the public interest. This power in the executive branch is inherent under the Constitution. EXHIBIT III THE MYTH OF EXECUTIVE PRIVILEGE-EXTENSION OF REMARKS OF HON. JOHN E. Moss OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES, TUESDAY, AUGUST 19. 1958 Mr. Moss. Mr. Speaker, the President has signed into law H. R. 2767, which was passed without a dissenting vote by both Houses of Congress. The new law prevents the misue of a 169-year-old statute which has been twisted, in recent years, into a claim of authority to refuse the public the facts about the day-to-day operation of the Federal Government. |