TESTIMONY OF WILLIS D. LAWRENCE, ASSISTANT DIRECTOR FOR POLICY AND PROCEDURES, DIRECTORATE FOR SECURITY REVIEW, ASSISTANT SECRETARY OF DEFENSE (PUBLIC AFFAIRS); ACCOMPANIED BY ROBERT S. MCNAMARA, SECRETARY OF DEFENSE Resumed

Mr. LAWRENCE. That is correct.

VERIFICATION OF EXISTENCE OF DEFENSE DEPARTMENT RECORDS

Senator STENNIS. I have already asked if you understand that you are still under oath.

Now, before proceeding with the principal question to be presented to you, today, there are one or two preliminary questions.

Is it correct, Mr. Lawrence, that there are written records available in the Directorate for Security Review which are part of the official records of the Department of Defense which will reveal the identity of the person who reviewed and cleared a specific speech or other public statements?

Mr. LAWRENCE. Yes, sir; there are, with perhaps a few exceptions. Senator STENNIS. But, generally, those records are available there? Mr. LAWRENCE. Yes, sir.

QUESTION RULED RELEVANT AND MATERIAL

Senator STENNIS. Let me state to you, Mr. Lawrence, that the subcommittee feels that the question which you declined to answer sought information which is relevant and material to this inquiry, and which is within the jurisdiction of this subcommittee.

You fully understand the position of the subcommittee on that? Mr. LAWRENCE. Yes, sir.

WITNESS DIRECTED TO ANSWER QUESTION

Senator STENNIS. Then, Mr. Lawrence, you are directed now by the Chair to answer the question put to you by Senator Thurmond which I quoted in my opening statement; that is, you are directed to inform this subcommittee of the name of the person within the Directorate for Security Review who on or about the 8th day of February 1961, reviewed and cleared the statement prepared by Lt. Gen. Arthur G. Trudeau for delivery before the Science and Astronautics Committee of the House of Representatives some time in February 1961.

Do you understand the question?

Mr. LAWRENCE. Yes, sir.

Senator STENNIS. All right, what is your answer?

RECOGNITION OF M'NAMARA

Secretary MCNAMARA. Mr. Chairman

Senator THURMOND. Mr. Chairman, the witness has been propounded a question, and I move he be required to answer first, and then if the Secretary of Defense wants to make a statement, he can do that.

The Chair has ordered the witness to answer the question.

Senator STENNIS. Yes, I think, Senator Thurmond, that that is technically correct, but, at the same time, the Secretary of Defense is here and this question of executive privilege has been talked about back and forth.

I assume the Secretary has something to bear directly upon that in this question, so I recognize the Secretary to make a statement. Secretary MCNAMARA. Thank you, Mr. Chairman.

Would you like me to swear under oath?

Senator STENNIS. You are already under oath. I beg your pardon, you have not been here.

Secretary MCNAMARA. No, sir; I have not.

Senator STENNIS. All right; thank you very much for reminding

me.

Will you please stand, Secretary McNamara. Do you solemnly swear that your testimony before this subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God? Secretary MCNAMARA. I do, sir.

Senator STENNIS. Have a seat.

Secretary MCNAMARA. Mr. Chairman

Senator STENNIS. I assume this is with reference to executive privilege, is it not?

KENNEDY LETTER TO M'NAMARA

Secretary MCNAMARA. It is, sir.

I would like to read a letter to me from the President. This is dated February 8.

DEAR MR. SECRETARY: You have brought to my attention the fact that the Senate Special Preparedness Investigating Subcommittee intends to ask witnesses from your Department to give testimony identifying the names of individuals who made or recommended changes in specific speeches.

As you know, it has been and will be the consistent policy of this administration to cooperate fully with the committees of the Congress with respect to the furnishing of information. In accordance with this policy, you have made available to the subcommittee 1,500 speeches with marginal notes, hundreds of other documents, and the names of the 14 individual speech reviewers, 11 of whom are military officers. You have also made available the fullest possible background information about each of these men, whose record of service and devotion to country is unquestioned in every case, and you have permitted the committee's staff to interview all witnesses requested and to conduct such interviews outside the presence of any departmental representative. Finally, you have identified the departmental source of each suggested change and offered to furnish in writing an explanation of each such change and the policy or guideline under which it was made.

Your statement that these changes are your responsibility, that they were made under your policies and guidelines and those of this administration, and that you would be willing to explain them in detail is both fitting and accurate, and offers to the subcommittee all the information properly needed for the purposes of its current inquiry. It is equally clear that it would not be possible for you to maintain an orderly Department and receive the candid advice and loyal respect of your subordinates if they, instead of you and your senior associates, are to be individually answerable to the Congress, as well as to you, for their internal acts and advice.

For these reasons, and in accordance with the precedents on separation of powers established by my predecessors from the first to the last, I have conIcluded that it would be contrary to the public interest to make available any information which would enable the subcommittee to identify and hold accountable any individual with respect to any particular speech that he has reviewed. I, therefore, direct you and all personnel under the jurisdiction of your Depart

ment not to give any testimony or produce any documents which would disclose such information, and I am issuing parallel instructions to the Secretary of State. The principle which is at stake here cannot be automatically applied to every request for information. Each case must be judged on its own merits. But I do not intend to permit subordinate officials of our career services to bear the brunt of congressional inquiry into policies which are the responsibilities of their superiors.

Sincerely yours,

JOHN F. KENNEDY.

WITNESS INSTRUCTED BY M'NAMARA NOT TO ANSWER QUESTION

Mr. Chairman, acting in accordance with that instruction, I have instructed Mr. Lawrence not to answer the question, thereby invoking executive privilege.

WITNESS DECLINES TO ANSWER QUESTION

Senator STENNIS. Mr. Lawrence, of course, you have heard what the Secretary has said here. Is that your position now?

Mr. LAWRENCE. Yes, sir; it is.

Senator STENNIS. You decline to answer the question for the reasons assigned by the Secretary?

Mr. LAWRENCE. That is right, sir.

CHAIRMAN CLEARS WITNESS AND ASSOCIATES

Senator STENNIS. I just want the record to be clear and positive. As I understood it from the following letter, the President puts it on the ground of being contrary to the public interest.

All right, let me say an additional word here about Mr. Lawrence, if I may, and in reference to the other gentlemen. This executive privilege presented by the Secretary and also adopted by Mr. Lawrence presents a new question. Before I leave this situation, I want to say that there is no tarnish of any kind on Mr. Lawrence or any of his 13 associates. All of them, according to my information, including all that collected by the staff members and all that I have ever heard, are intelligent, dedicated, hard-working, patriotic, loyal Americans, and I firmly believe that they are, each of these gentlemen. Some of them are members of the services, and some of them are in civilian life. STATEMENT BY SENATOR JOHN STENNIS IN RULING ON PLEA OF EXECUTIVE PRIVILEGE, FEBRUARY 8, 1962

Senator STENNIS. Members of the subcommittee, in view of the express plea here of executive privilege, I think it clearly the duty of the Chair now to rule upon the plea. Not only is my duty clear, but it is clear that I should rule on it now.

It is a question that I have long anticipated in connection with these hearings. It is a matter which became evident to me many weeks ago and caused me to make a special study of it. I have therefore, examined what I believe to be all of the authorities on the subject. I have also consulted with others who have had Senatorial experience in this field. I have a brief statement to make here as background for the ruling I shall make.

88735 O-62-pt. 2-10

Over the decades of the operation of our constitutional Government, there has grown up an unbroken line of decisions and precedents on the general subject of what has come to be known as the separation of powers doctrine: related to it and a part of it, is the system of checks and balances between the three departments of Government. Out of this separation of powers doctrine there has arisen the so-called privilege of the three branches of our Government, the executive, the legislative, and the judicial; shortly put, it is that neither shall be allowed to impose its will upon the other.

Today, we deal directly with the plea of executive privilege, which has been interposed here by the Secretary of Defense acting in accordance with the written instructions received by him from the President of the United States, and which he has read to the subcommittee.

The cases and the precedents on this question come from reports, they come from legislative decisions, and they cover many, many different instances. Perhaps there are no two cases exactly alike, but the principle is the same in all.

This question first arose in March 1792, in the administration of George Washington, when the House of Representatives passed the following resolution. And I shall just read the resolution, which is quite brief, because it is the first time the question arose.

(Let me say to the press that I am speaking from prepared notes, but I do not have a prepared statement to give out.)

The House resolved as follows:

That a committee be appointed to inquire into the causes of the failure of the late expedition under Major General Sinclair, and that the said committee be empowered to call for such persons, papers, and records as may be necessary to assist their inquiries.

End of the resolution.

As I say, the first question arose in the administration of Washington and was resolved by George Washington and his Cabinet.

You will recall that within that Cabinet were found Thomas Jefferson, Alexander Hamilton, Edmund Randolph, and others, and Thomas Jefferson recorded a memorandum for history. The Cabinet was unanimous except Mr. Hamilton dissented on the point of whether or not the Secretary alone could interpose the plea. We do not have that case here, because the President directly interposed. The most notable case from a court on this subject was decided in 1803 by the U.S. Supreme Court in an opinion written by Chief Justice Marshall; the style of the case, Marbury v. Madison, Madison then being Secretary of State, later President. In that case the Court said, and I shall read quite briefly one paragraph because it has become historical and it has been used so many times as a guideline quoting now Chief Justice Marshall:

By the Constitution of the United States, the President is invested with certain important political powers in the exercise of which he is to use his own discretion and is accountable only to the country and his political character and to his conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers who act by his authority and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control that discretion. The subjects are political. They respect the Nation, not individual rights, and being entrusted to the Executive, the decision of the Executive is conclusive.

As I say, that was decided during Jefferson's administration by Chief Justice Marshall as the writer of that opinion. The Court held, in substance, that the Secretary of State did not have to produce the document in question as it was a record of the executive department. Incidentally, that was a document or commission which the Chief Justice had issued himself but had failed to deliver while he was Secretary of State under John Adams.

Over a 170-year period, the right of the President to refuse to make such disclosures which in his judgment would be against the public interest has always been upheld.

It is a discretionary power resting with the Chief Executive of the Nation. The question involves the Office of the Presidency and not an individual President. The Chief Executive makes the decision, and under Marbury v. Madison and other cases, his decisions on those points are conclusive. As I have already stated, there is no need to discuss here the matter of the power of a Cabinet officer.

The plea here comes directly from the President of the United States. Now, without going into detail, I have made a listing of the administrations in which I found this question arose. As I have said, first in the administration of George Washington. Next, it arose in the administration of Thomas Jefferson where there were additional congressional resolutions; Jefferson pled Executive privilege, and it was sustained.

The plea was also sustained a number of times in the administration of Andrew Jackson; a Senate resolution was involved there. The question again arose and was sustained in the following administrations: In the James Madison administration; in the administration of John Tyler; in the administration of James K. Polk when the House of Representatives sought certain papers; in the administration of Ulysses S. Grant; in the administration of Grover Cleveland; in the administration of Theodore Roosevelt; and, incidentally, that man of action had some of the papers brought down to the White House where he could personally keep them; in the administration of Calvin Coolidge; in the administration of President Hoover; in the administration of President Franklin D. Roosevelt; in the administration of President Harry S. Truman; and in the administration of President Dwight D. Eisenhower.

Those records are all available and can be readily reviewed by any member of the subcommittee. Generally, always they sustain the same principle, and generally along the same lines of reasoning, although different arguments were made.

Now, also in my research, I find that, generally, the same rule has been held as to the Governors of the States of the United States as to their executive powers and privileges-and generally for the same reason the powers of the Governors to assert executive privilege have been upheld by the State supreme courts.

There are those of us on this subcommittee who were members of the Armed Services Committee during the joint hearings, 11 years ago, I believe, conducted by the Senate Foreign Relations Committee and the Senate Armed Services Committee, presided over by Chairman Russell of the Armed Services Committee. I shall refer briefly to that ruling later, but there this same question was raised under different facts. The executive privilege was sustained then.