Chapter XIX: Appendix: A

_Letter from President Eisenhower to the Secretary of Defense_

THE WHITE HOUSE,
_May 17, 1954_

The Honorable the SECRETARY OF DEFENSE,
_Washington, D. C._

DEAR MR. SECRETARY: It has long been recognized that to assist the
Congress in achieving its legislative purposes every Executive
Department or Agency must, upon the request of a Congressional
Committee, expeditiously furnish information relating to any matter
within the jurisdiction of the Committee, with certain historical
exceptions—some of which are pointed out in the attached memorandum
from the Attorney General. This Administration has been and will
continue to be diligent in following this principle. However, it
is essential to the successful working of our system that the
persons entrusted with power in any one of the three great branches
of Government shall not encroach upon the authority confided to
the others. The ultimate responsibility for the conduct of the
Executive branch rests with the President.

Within this Constitutional framework each branch should co-operate
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 because it is not in the public interest that any of their
conversations or communications, or any documents or reproductions,
concerning such advice be disclosed, you will instruct employees
of your Department that in all of their appearances before the
Subcommittee of the Senate Committee on Government Operations
regarding the inquiry now before it they are not to testify to
any such conversations or communications or to produce any such
documents or reproductions. This principle must be maintained
regardless of who would be benefited by such disclosures.

I direct this action so as to maintain the proper separation of
powers between the Executive and Legislative Branches of the
Government in accordance with my responsibilities and duties under
the Constitution. This separation is vital to preclude the exercise
of arbitrary power by any branch of the Government.

By this action I am not in any way restricting the testimony of
such witnesses as to what occurred regarding any matters where
the communication was directly between any of the principals in
the controversy within the Executive Branch on the one hand and a
member of the Subcommittee or its staff on the other.

Sincerely,
DWIGHT D. EISENHOWER

MEMORANDUM

For: the President.
From: the Attorney General.

One of the chief merits of the American system of written
constitutional law is that all the powers entrusted to the
government are divided into three great departments, the
Executive, the Legislative, and the Judicial. It is essential to
the successful working of this system that the persons entrusted
with power in any one of these branches shall not be permitted to
encroach upon the powers confided to the others, but that each
shall be limited to the exercise of the powers appropriate to its
own department and no other. The doctrine of separation of powers
was adopted to preclude the exercise of arbitrary power and to save
the people from autocracy.

This fundamental principle was fully recognized by our first
President, George Washington, as early as 1796 when he said: “...
it is essential to the due administration of the Government that
the boundaries fixed by the Constitution between the different
departments should be preserved....” In his Farewell Address,
President Washington again cautioned strongly against the danger
of encroachment by one department into the domain of another
as leading to despotism. This principle has received steadfast
adherence throughout the many years of our history and growth. More
than ever, it is our duty today to heed these words if our country
is to retain its place as a leader among the free nations of the
world.

For over 150 years—almost from the time that the American form of
government was created by the adoption of the Constitution—our
Presidents have established, by precedent, that they and members
of their Cabinet and other heads of executive departments have an
undoubted privilege and discretion to keep confidential, in the
public interest, papers and information which require secrecy.
American history abounds in countless illustrations of the refusal,
on occasion, by the President and heads of departments to furnish
papers to Congress, or its committees, for reasons of public
policy. The messages of our past Presidents reveal that almost
every one of them found it necessary to inform Congress of his
constitutional duty to execute the office of President, and, in
furtherance of that duty, to withhold information and papers for
the public good.

Nor are the instances lacking where the aid of a court was sought
in vain to obtain information or papers from a President and the
heads of departments. 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 interest, they
will not interfere with the exercise of that discretion, and that
Congress has not the power, as one of the three great branches of
the Government, to subject the Executive Branch to its will any
more than the Executive Branch may impose its unrestrained will
upon the Congress.

PRESIDENT WASHINGTON’S ADMINISTRATION

In March 1792, the House of Representatives passed the following
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 empowered to call for
such persons, papers, and records, as may be necessary to assist
their inquiries” (3 Annals of Congress, p. 493).

This was the first time that a committee of Congress was appointed
to look into a matter which involved the Executive Branch of the
Government. The expedition of General St. Clair was under the
direction of the Secretary of War. The expenditures connected
therewith came under the Secretary of the Treasury. The House
based its right to investigate on its control of the expenditures
of public moneys. It appears that the Secretaries of War and the
Treasury appeared before the committee. However, 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 (Binkley, _President and Congress_, pp.
40-41).

Thomas Jefferson, as Secretary of State, reports what took place at
that meeting. Besides Jefferson, Alexander Hamilton, Henry Knox,
Secretary of War, and Edmond Randolph, the Attorney General, were
present. The Committee had first written to Knox for the original
letters, instructions, etc., to General St. Clair. President
Washington stated that he had called his Cabinet members together,
because it was the first example of a demand on the Executive for
papers, and he wished that so far as it should become a precedent,
it should be rightly conducted. The President readily admitted that
he did not doubt the propriety of what the House was doing, but he
could conceive that there might be papers of so secret a nature
that they ought not to be given up. Washington and his Cabinet
came to the unanimous conclusion:

“First, that the House was an inquest, and therefore 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 which would injure the public; consequently were
to exercise a discretion. Fourth, that neither the committee nor
House had a right to call on the Head of a Department, who and
whose papers were under the President alone; but that the committee
should instruct their chairman to move the House to address the
President.”

The precedent thus set by our first President and his Cabinet was
followed in 1796, when President Washington was presented with a
resolution of the House of Representatives which requested him to
lay before the House a copy of the instructions to the Minister of
the United States who negotiated the treaty with the King of Great
Britain, together with the correspondence and documents relative to
that treaty. Apparently it was necessary to implement the treaty
with an appropriation which the House was called upon to vote. The
House insisted on its right to the papers requested, as a condition
to appropriating the required funds (_President and Congress_,
Wilfred E. Binkley [1947], p. 44).

President Washington’s classic reply was, in part, as follows:

“I trust that no part of my conduct has ever indicated a
disposition to withhold any information which the Constitution has
enjoined upon the President as a duty to give, or which could be
required of him by either House of Congress as a right; and with
truth I affirm that it has been, as it will continue to be while I
have the honor to preside in the Government, my constant endeavor
to harmonize with the other branches thereof so far as the trust
delegated to me by the people of the United States and my sense of
the obligation it imposes to ‘preserve, protect, and defend the
Constitution’ will permit” (Richardson, _Messages and Papers of the
Presidents_, vol. 1, p. 194).

Washington then went on to discuss the secrecy required in
negotiations with foreign governments, and cited that as a reason
for vesting the power of making treaties in the President, with the
advice and consent of the Senate. He felt that to admit the House
of Representatives into the treaty-making power, by reason of its
constitutional duty to appropriate monies to carry out a treaty,
would be to establish a dangerous precedent. He closed his message
to the House as follows:

“As, therefore, it is perfectly clear to my understanding that
the assent of the House of Representatives is not necessary to
the validity of a treaty; ... and as it is essential to the due
administration of the Government that the boundaries fixed by the
Constitution between the different departments should be preserved,
a just regard to the Constitution and to the duty of my office,
under all the circumstances of this case, forbids a compliance with
your request” (Richardson, _Messages and Papers of the Presidents_,
vol. 1, p. 196).

PRESIDENT JEFFERSON’S ADMINISTRATION

In January 1807, Representative Randolph introduced a resolution,
as follows:

“_Resolved_, That the President of the United States be, and he
hereby is, requested to lay before this House any information in
possession of the Executive, except such as he may deem the public
welfare to require not to be disclosed, touching any illegal
combination of private individuals against the peace and safety of
the Union, or any military expedition planned by such individuals
against the territories of any Power in amity with the United
States; together with the measures which the Executive has pursued
and proposes to take for suppressing or defeating the same” (16
Annals of Congress [1806-1807], p. 336).

The resolution was overwhelmingly passed. The Burr conspiracy was
then stirring the country. Jefferson had made it the object of
a special message to Congress wherein he referred to a military
expedition headed by Burr. Jefferson’s reply to the resolution was
a Message to the Senate and House of Representatives. Jefferson
brought the Congress up to date on the news which he had been
receiving concerning the illegal combination of private individuals
against the peace and safety of the Union. He pointed out that
he had recently received a mass of data, most of which had been
obtained without the sanction of an oath so as to constitute formal
and legal evidence. “It is chiefly in the form of letters, often
containing such a mixture 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 concurrent
information or the particular credibility of the relator. In
this state of the evidence, 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” (Richardson, _Messages and
Papers of the Presidents_, vol. 1, p. 412, dated January 22, 1807).

SIMILAR ACTIONS BY PRESIDENTS JACKSON, TYLER, BUCHANAN, AND GRANT

On February 10, 1835, President Jackson sent a message to the
Senate wherein he declined to comply with the Senate’s resolution
requesting him to communicate copies of charges which had been
made to the President against the official conduct of Gideon Fitz,
late Surveyor-General, which caused his removal from office. The
resolution stated that the information requested was necessary both
in the action which it proposed to take on the nomination of a
successor to Fitz, and in connection with the investigation which
was then in progress by the Senate respecting the frauds in the
sales of public lands.

The President declined to furnish the information. He stated that
in his judgment the information related to subjects exclusively
belonging to the executive department. The request therefore
encroached on the constitutional powers of the executive.

The President’s message referred to many previous similar requests,
which he deemed unconstitutional demands by the Senate:

“Their continued repetition imposes on me, as the representative
and trustee of the American people, the painful but imperious duty
of resisting to the utmost any further encroachment on the rights
of the Executive” (ibid., p. 133).

The President next took up the fact that the Senate resolution
had been passed in executive session, from which he was bound
to presume that if the information requested by the resolution
were communicated, it would be applied in secret session to the
investigation of frauds in the sales of public lands. The President
said that, if he were to furnish the information, the citizen whose
conduct the Senate sought to impeach would lose one of his basic
rights, namely—that of a public investigation in the presence
of his accusers and of the witnesses against him. In addition,
compliance with the resolution would subject the motives of the
President, in the case of Mr. Fitz, to the review of the Senate
when not sitting as judges on an impeachment; and even if such
a consequence did not follow in the present case, the President
feared that compliance by the Executive might thereafter be quoted
as a precedent for similar and repeated applications.

“Such a result, if acquiesced in, would ultimately subject the
independent constitutional action of the Executive in a matter of
great national concernment to the domination and control of the
Senate;...

“I therefore decline a compliance with so much of the resolution of
the Senate as requests ‘copies of the charges, if any,’ in relation
to Mr. Fitz, and in doing so must be distinctly understood as
neither affirming nor denying that any such charges were made ...”
(ibid., p. 134).

One of the best reasoned precedents of a President’s refusal
to permit the head of a department to disclose confidential
information to the House of Representatives is President Tyler’s
refusal to communicate 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. A resolution
of the House of Representatives had called upon the Secretary of
War to communicate to the House the reports made to the Department
of War by Lieutenant Colonel Hitchcock relative to the affairs of
the Cherokee Indians together with all information communicated by
him concerning the frauds he was charged to investigate; also all
facts in the possession of the Executive relating to the subject.
The Secretary of War consulted with the President and under the
latter’s direction informed the House that negotiations were then
pending with the Indians for settlement of their claims; in the
opinion of the President and the Department, therefore, publication
of the report at that time would be inconsistent with the public
interest. The Secretary of War further stated in his answer to
the resolution that the report sought by the House, dealing with
alleged frauds which Lieutenant Colonel Hitchcock was charged to
investigate, contained information which was obtained by Colonel
Hitchcock by ex parte inquiries of persons whose statements were
without the sanction of an oath, and which the persons implicated
had had no opportunity to contradict or explain. The Secretary
of War expressed the opinion that to promulgate those statements
at that time would be grossly unjust to those persons, and would
defeat the object of the inquiry. He also remarked that the
Department had not been given at that time sufficient opportunity
to pursue the investigation, to call the parties affected for
explanations, or to determine on the measures proper to be taken.

The answer of the Secretary of War was not satisfactory to the
Committee on Indian Affairs of the House, which claimed the
right to demand from the Executive and heads of departments such
information as may be in their possession relating to subjects of
the deliberations of the House.

President Tyler in a message dated January 31, 1843, vigorously
asserted that the House of Representatives could not exercise a
right to call upon the Executive for information, even though it
related to a subject of the deliberations of the House, if, by
so doing, it attempted to interfere with the discretion of the
Executive.

The same course of action was taken by President James Buchanan in
1860 in resisting a resolution of the House to investigate whether
the President or any other officer of the Government had, by money,
patronage, or other improper means sought to influence the action
of Congress for or against the passage of any law relating to the
rights of any state or territory. (See Richardson, _Messages and
Papers of the Presidents_, vol. 5, pp. 618-19.)

In the administration of President Ulysses S. Grant the House
requested the President to inform it whether any executive offices,
acts, or duties, and if any, what, have been performed at a
distance from the seat of government established by law. It appears
that the purpose of this inquiry was to embarrass the President by
reason of his having spent some of the hot months at Long Branch.
President Grant replied that he failed to find in the Constitution
the authority given to the House of Representatives, and that the
inquiry had nothing to do with legislation (Richardson, _Messages
and Papers of the Presidents_, vol. 7, pp. 362-63).

PRESIDENT CLEVELAND’S ADMINISTRATION

In 1886, during President Cleveland’s administration, there
was an extended discussion in the Senate with reference to its
relations to the Executive caused by the refusal of the Attorney
General to transmit to the Senate certain documents concerning
the administration of the Office of the District Attorney for the
Southern District of South Alabama, and suspension of George W.
Durkin, the late incumbent. The majority of the Senate Committee
on the Judiciary concluded that it was entitled to know all
that officially exists or takes place in any of the departments
of Government and that neither the President nor the head of
a department could withhold official facts and information as
distinguished from private and unofficial papers.

In his reply President Cleveland disclaimed any intention to
withhold official papers, but he denied that papers and documents
inherently private or confidential, addressed to the President or a
head of a department, having reference to an act entirely executive
such as the suspension of an official, were changed in their nature
and became official when placed for convenience in the custody
of a public department. (Richardson, _Messages and Papers of the
Presidents_, vol. 8, pp. 378-79, 381.)

Challenging the attitude that because the executive departments
were created by Congress the latter had any supervisory power
over them, President Cleveland declared (Eberling, _Congressional
Investigation_, p. 258):

“I do not suppose that the public offices of the United States
are regulated or controlled in their relations to either House of
Congress by the fact that they were created by laws enacted by
themselves. It must be that these instrumentalities were created
for the benefit of the people and to answer the general purposes
of government under the Constitution and the laws, and that they
are unencumbered by any lien in favor of either branch of Congress
growing out of their construction, and unembarrassed by any
obligation to the Senate as the price of their creation.”

PRESIDENT THEODORE ROOSEVELT’S ADMINISTRATION

In 1909, during the administration of President Theodore Roosevelt,
the question of the right of the President to exercise complete
direction and control over heads of executive departments was
raised again. At that time the Senate passed a resolution
directing the Attorney General to inform the Senate whether certain
legal proceedings had been instituted against the United States
Steel Corporation, and if not, the reasons for its nonaction.
Request was also made for any opinion of the Attorney General, if
one was written. President Theodore Roosevelt replied refusing to
honor this request upon the ground that “Heads of the Executive
Departments are subject to the Constitution, and to the laws passed
by the Congress in pursuance of the Constitution, and to the
directions of the President of the United States, but to no other
direction whatever” (_Congressional Record_, vol. 43, pt. 1, 60th
Cong., 2d sess., pp. 527-28).

When the Senate was unable to get the documents from the Attorney
General, it summoned Herbert K. Smith, the Head of the Bureau of
Corporations, and requested the papers and documents on penalty
of imprisonment for contempt. Mr. Smith reported the request to
the President, who directed him to turn over to the President
all the papers in the case “so that I could assist the Senate in
the prosecution of its investigation.” President Roosevelt then
informed Senator Clark of the Judiciary Committee what had been
done, that he had the papers and the only way the Senate could
get them was through his impeachment. President Roosevelt also
explained that some of the facts were given to the Government under
the seal of secrecy and cannot be divulged, “and I will see to it
that the word of this Government to the individual is kept sacred.”
(Corwin, _The President: Office and Powers_, pp. 281, 428; Abbott,
_The Letters of Archie Butt, Personal Aid to President Roosevelt_,
pp. 305-6.)

PRESIDENT COOLIDGE’S ADMINISTRATION

In 1924, during the administration of President Coolidge, the latter objected to the action of a special investigating committee appointed by the Senate to investigate the Bureau of Internal Revenue. Request was made by the committee for a list of the companies in which the Secretary of the Treasury was alleged to be interested for the purpose of investigating their tax returns. Calling this exercise of power an unwarranted intrusion, President Coolidge said:

“Whatever may be necessary for the information of the Senate or any of its committees in order to better enable them to perform their legislative or other constitutional functions ought always to be furnished willingly and expeditiously by any department. But it is recognized both by law and custom that there is certain confidential information which it would be detrimental to the public service to reveal” (68th Cong., 1st sess., _Record_, April 11, 1924, p. 6087).

PRESIDENT HOOVER’S ADMINISTRATION

A similar question arose in 1930 during the administration of
President Hoover. Secretary of State Stimson refused to disclose
to the Chairman of the Senate Foreign Relations Committee certain
confidential telegrams and letters leading up to the London
Conference and the London Treaty. The Committee asserted its
right to have full and free access to all records touching the
negotiations of the treaty, basing its right on the constitutional
prerogative of the Senate in the treaty-making process. In his
message to the Senate, President Hoover pointed out that there were
a great many informal statements and reports which were given to
the Government in confidence. The Executive was under a duty, in
order to maintain amicable relations with other nations, not to
publicize all the negotiations and statements which went into the
making of the treaty. He further declared that the Executive must
not be guilty of a breach of trust, nor violate the invariable
practice of nations. “In view of this, I believe that to further
comply with the above resolution would be incompatible with the
public interest” (S. Doc. No. 216, 71st Cong., special sess., p. 2).

PRESIDENT FRANKLIN D. ROOSEVELT’S ADMINISTRATION

The position was followed during the administration of President
Franklin D. Roosevelt. There were many instances in which the
President and his Executive heads refused to make available certain
information to Congress the disclosure of which was deemed to be
confidential or contrary to the public interest. Merely a few need
be cited.

1. Federal Bureau of Investigation records and reports were refused
to congressional committees, in the public interest (40 Op. A. G.
No. 8, April 30, 1941).

2. The Director of the Federal Bureau of Investigation refused to
give testimony or to exhibit a copy of the President’s directive
requiring him, in the interests of national security, to refrain
from testifying or from disclosing the contents of the Bureau’s
reports and activities. (_Hearings_, vol. 2, House, 78th Cong.
Select Committee to Investigate the Federal Communications
Commission, 1944, p. 2337.)

3. Communications between the President and the heads of
departments were held to be confidential and privileged and not
subject to inquiry by a committee of one of the Houses of Congress.
(Letter dated January 22, 1944, signed Francis Biddle, Attorney
General to Select Committee, etc.)

4. The Director of the Bureau of the Budget refused to testify and
to produce the Bureau’s files, pursuant to subpoena which had been
served upon him, because the President had instructed him not to
make public the records of the Bureau due to their confidential
nature. Public interest was again invoked to prevent disclosure.
(Reliance placed on Attorney General’s Opinion in 40 Op. A. G. No.
8, April 30, 1941.)

5. The Secretaries of War and Navy were directed not to deliver
documents which the committee had requested, on grounds of
public interest. The Secretaries, in their own judgment, refused
permission to Army and Navy officers to appear and testify because
they felt that it would be contrary to the public interests.
(_Hearings_, Select Committee to Investigate the Federal
Communications Commission, vol. 1, pp. 46, 48-68.)

PRESIDENT TRUMAN’S ADMINISTRATION

During the Truman administration also the President adhered to
the traditional Executive view that the President’s discretion
must govern the surrender of Executive files. Some of the major
incidents during the administration of President Truman in which
information, records, and files were denied to Congressional
Committees were as follows:

Date Type of Document Refused

Mar. 4, 1948 FBI letter-report on Dr. Condon, Director of National
Bureau of Standards, refused by Secretary of
Commerce.

Mar. 15, 1948 President issued directive forbidding all Executive
departments and agencies to furnish information or
reports concerning loyalty of their employees to
any court or committee of Congress, unless
President approves.

March 1948 Dr. John R. Steelman, Confidential Adviser to the
President, refused to appear before Committee on
Education and Labor of the House, following the
service of two subpoenas upon him. President
directed him not to appear.

Aug. 5, 1948 Attorney General wrote Senator Ferguson, Chairman
of Senate Investigations Subcommittee, that he
would not furnish letters, memoranda, and other
notices which the Justice Department had furnished
to other government agencies concerning W. W.
Remington.

Feb. 22, 1950 Senate Res. 231 directing Senate Subcommittee to
procure State Department loyalty files was met with
President Truman’s refusal, following vigorous
opposition of J. Edgar Hoover.

Mar. 27, 1950 Attorney General and Director of FBI appeared before
Senate Subcommittee. Mr. Hoovers historic statement
of reasons for refusing to furnish raw files
approved by Attorney General.

May 16, 1951 General Bradley refused to divulge conversations
between President and his advisers to combined
Senate Foreign Relations and Armed Services
Committees.

Jan. 31, 1952 President Truman directed Secretary of State to
refuse to Senate Internal Security Subcommittee
the reports and views of foreign service officers.

Apr. 22, 1952 Acting Attorney General Perlman laid down procedure
for complying with requests for inspection of
Department of Justice files by Committee on
Judiciary:

Requests on open cases would not be honored.
Status report will be furnished.

As to closed cases, files would be made
available. All FBI reports and confidential
information would not be made available.

As to personnel files, they are never
disclosed.

Apr. 3, 1952 President Truman instructed Secretary of State to
withhold from Senate Appropriations Subcommittee
files on loyalty and security investigations of
employees—policy to apply to all Executive
agencies. The names of individuals determined to
be security risks would not be divulged. The voting
record of members of an agency loyalty board would
not be divulged.

Thus, you can see that the Presidents of the United States have
withheld information of Executive departments or agencies whenever
it was found that the information sought was confidential or that
its disclosure would be incompatible with the public interest or
jeopardize the safety of the Nation. The courts too have held that
the question whether the production of the papers was contrary to
the public interest was a matter for the Executive to determine.

By keeping the lines which separate and divide the three great
branches of our Government clearly defined, no one branch has been
able to encroach upon the powers of the other.

Upon this firm principle our country’s strength, liberty, and
democratic form of government will continue to endure.