Mr. NEWTON. We agree.

Mr. HOFFMAN. And if they are to have accurate information they should not be dependent upon what the reporter says because that includes his recollection as well as his hearing and his understanding. The people should be permitted to judge for themselves. That is the only point that I am trying to make. It appears here that we are holding hearings on the right of the people to know, but at the same time we are depriving them of the right to judge for themselves to hear what is said, see what is done, are we not?

Mr. NEWTON. Somewhat.

Mr. HOFFMAN. Somewhat I guess so.

Now, talking about privileges, Where do you gentlemen stand on this right: For instance, you might print, we will assume-something that is untrue and derogatory to my political future. Do I have a right to know where you obtained that information? Does the reporter have a privilege? It is claimed every once in a while by papers.

Mr. NEWTON. All I can tell you is on my newspaper our reporter goes to jail along with the editor.

Mr. HOFFMAN. If I asked the reporter, "Where did you get this information?" should he not tell me?

FURTHER STATEMENT OF RICHARD W. SLOCUM, EXECUTIVE VICE PRESIDENT, THE PHILADELPHIA BULLETIN

Mr. SLOCUM. I will volunteer. I think he should. There are a number of States that have immunity provisions-not all. Some do and some do not.

Mr. HOFFMAN. Do you think those are valid?

Mr. SLOCUM. If you ask me if I think they are good, I would say "No." I think the press is acting for the people. The press should be ready to disclose sources of information.

Mr. Moss. Again, on the point of Congress legislating on the right for people to know, is it not a case of Congress defining rather than granting the right? You claim the right-and I think many of us claim it is on constitutional grounds-the right to know fully about our Government. Congress could act to the extent of defining more fully that right and insuring that it was not violated by the withholding, on the part of Government, any essential information, or of any information unless it were necessary in the interest of security and orderly government. This might be the case with the privileges claimed from time to time by the Executive, to regard as privileged some communications with officials of his Cabinet, or departments of Government.

Now, I have another question that I would like to direct to Mr. Cross. In an area in which Congress has not acted but the Executive has, do you agree that Congress can, by statute, overrule the acts of the Executive in that field?

FURTHER STATEMENT OF HAROLD L. CROSS, FREEDOM OF INFORMATION COUNSEL FOR AMERICAN SOCIETY OF NEWSPAPER EDITORS

Mr. CROSS. I am afraid, sir, I could not give an answer to that in the soundness of which I had full confidence in the abstract. It seems

to me there are areas in which there are Executive powers, but there are also large areas in which there are congressional powers, and indeed Congress has not hesitated to act in a score or more of statutes in that direction.

As an abstract question, it raises, of course, the broad issue of the separation of powers. As I said, I think there are very large areas in which Congress has the power to act. I think that it could easily modify

Mr. Moss. You think that the only restriction would be the separation of powers as provided by the Constitution? As long as it did not conflict with that separation of powers between the Executive and the Congress, the Congress would then have the right to act?

Mr. CROSS. So far, first, as the constitutional question is concerned, yes. And also, of course, as to the eventual issue of an enforcement of a judicial decree upon the President, or his confidential agents. But Congress has nowhere near exhausted its powers to legislate which come nowhere near approaching the power of the Executive in that regard.

Mr. HOFFMAN. I have a question right there. The Constitution gives the President certain authority and confers upon him certain duties. Now, we had a bill back in the 80th Congress in which we tried to write some legislation authorizing the obtaining of information. But where the Constitution gives the President authority and confers the duty upon him, do you think Congress has any right to ask him what his reasons are for any action?

For example, the President can grant a pardon. to me as a member of a congressional committee? why he granted that pardon, or is that a matter for science?

Must he tell why Must he tell me him and his con

Mr. CROSS. I am not aware, sir, that that question has ever been decided, and if I were to attempt to answer it I would be giving a personal opinion. I am confident there are large areas in which Congress may act in which it has not acted without interfering with Presidential powers.

Mr. HOFFMAN. Is not the line determined under the Constitution whether the President has the authority to do a thing? If he has, it is none of the business of the Congress.

Mr. CROSS. The Supreme Court recently announced, sir, that the Constitution conferred the lawmaking power upon the Congress and upon Congress alone.

Mr. HOFFMAN. Conferred what?

Mr. CROSS. The lawmaking power upon Congress and Congress alone.

Mr. HOFFMAN. That is the first 15 words of the Constitution.

Mr. CROSS. It had no hesitation in setting aside the Presidential seizure of the steel industry, and evidently felt that it could enforce its decree to that end.

Mr. HOFFMAN. But where the Constitution itself says that the President shall have the duty, or authority to do a specific thingand I am asking you for your personal opinion-you say then that a congressional committee can question the President, or his assistants, about the reason for his decision, or his action?

Mr. CROSS. May I respectfully ask what provision of the Constitution you have in mind?

Mr. HOFFMAN. The only thing that I can think of at the moment is the one about pardon, and the one to give a message on the state of the Union.

Mr. CROSS. I think that probably Congress could not compel the President by decree of the court to disclose his reasons for action on a pardon, but I think the Congress could require there be disclosed who it was that applied for a pardon and the circumstances under which he applied for that pardon. In other words, to ascertain the facts upon which Presidential action was taken.

Mr. HOFFMAN. Another question: The Constitution says he may veto a bill, and he sends up his reasons. Has a congressional committee a right to go beyond the reasons that he sends and put him, or some of his assistants, on the stand and ask him, "Why did you do this?"

Mr. CROSS. I should think probably sir, that the Congress has the power to put that inquiry, but I doubt if it could be enforced by a decree of the court.

Mr. Moss. Mr. Nichols, you discussed some of the problems of the magazine publishers. Magazine writers have more difficulty than other newsmen in getting clearance or access to certain types of information, do they not?

FURTHER STATEMENT OF WADE H. NICHOLS, EDITOR AND PUBLISHER, REDBOOK MAGAZINE

Mr. NICHOLS. I think, sir, they probably have both some handicaps and advantages. Among the handicaps would be the fact that magazines, with the exception probably of the news weeklies, do not generally develop their material through staff resources and personnel, but rather through free-lance contributors who sell their work in the open market. This puts the editor or publisher one step further removed from the governmental news source than his colleagues who would be on newspapers or broadcast media.

Another handicap would certainly be that while magazines cover any topic definitively, they do so fairly infrequently, so there is less continuity of relationship with sources.

On the other hand, the magazine generally has more time to work than the newspaper or broadcast writer has, so it might be possible to circumvent some of the administrative hesitancy to talk which embarrasses people with short deadlines.

Another factor is the relative durability of a magazine article is attractive in itself. They might tend to be somewhat more cooperative for understandable human reasons. Also, in the seeking of information, a magazine writer is frequently able to give any source considerable time in which to develop a considered, deliberate report rather than to seek some off-the-cuff statement which might be frightening in its implications, so that balancing these things out, I feel magazines have both some handicaps and some practical advantages. Mr. Moss. You feel it tends to balance out to something about equal with the newsmen?

Mr. NICHOLS. I think in working terms, sir, it is probably equal. Once a project is launched I think that is so. Probably the handicaps tend to be effective in keeping the editors ignorant of the topics in the first place. Once they know there is an area of interest, or a

project of concern, I think they might overcome their initial handicaps through their later time stand, or extra facilities, but they might ignore, or be unaware of things that newspapers and broadcast people would know through their continuity and closeness and contact with

the sources.

Mr. DAWSON. "The Power of Congress and of the President Over the Control of Government Information" is the heading of this state

ment:

Neither the Congress nor the President has any power with respect to Government information which is not derived from the Constitution, and neither can exercise any authority beyond the limits marked out by that instrument. Each is under and not above the Constitution.

That is a correct statement, is it not?

FURTHER STATEMENT OF HAROLD L. CROSS, FREEDOM OF INFORMATION COUNSEL FOR AMERICAN SOCIETY OF NEWSPAPER EDITORS

Mr. CROSS. I think so.

Mr. DAWSON. It goes on:

(a) Legislative power over Government information: How much control can Congress exercise over the information policies and procedures of executive and administrative agencies by virtue of its power to legislate? Except for functions exercised pursuant to the constitutional powers of the President, such as the pardoning power and the power to conduct international negotiations, Federal agencies are exercising functions authorized by legislation. Legislative powers extend to information policies and procedures in relation to all these functions except as it may be limited by the constitutional rights of citizens, or the constitutional prerogatives of the President.

The very power of the Congress to legislate relative to these agencies, set them up and outline their powers, gives it the right also to control, or look into any of its functions to see if they are operating according to that legislation, is that not true?

Mr. CROSS. I agree with that, I think.

Mr. DAWSON. And the power to legislate, the power to appropriate money, carries with it a duty of that agency to account to the Congress for what they do in carrying out the policy, the job assigned to them; also how they spend the money.

That sounds consistent with the power to legislate, does it not?
Mr. CROSS. Yes, sir.

Mr. DAWSON. The function of this Committee on Government Operations is to follow appropriated funds. Among the other jobs given to it is the power to follow appropriated funds and to see to it that those amounts appropriated are economically and efficiently spent by the various agencies to which the money is appropriated. And that carries with it the right to get information-any information that those agencies possess-in order that the Congress might determine. whether or not they are efficiently and economically administering the agency according to the legislation establishing it. And that is why this committee is set up to inquire into the activities of these various agencies. And ofttimes information is withheld from the Congress itself that voted the money to this agency as to how the administrator and those under him went about spending the money.

Now that is an entirely different situation from the situation where the President, in carrying out his executive duties, is communicating with the heads of the various departments of Government in a certain manner. That is a different situation from the situation where the President is inquiring personally-I mean in his capacity as President-to report as to actions and conversations he may have had with them. But that privilage is not extended to that department head in carrying out the duties for which Congress has appropriated money, and Congress has a right to follow that appropriated money and see that it is efficiently and economically spent. And when an agency or any department of the Government is denying to the Congress any information as to how they spend that money, as to the manner in which they spend that money, I take it they have gone beyond the scope of the privilege given to the President to determine that certain matters are privileged. In other words, it seems to me that the head of a department, a secretary, has no power in himself to claim privilege, that only the President can claim privilege of a communication between the two.

Am I right in that contention.

Mr. CROSS. I think that is correct, sir. And I would add that I think most of the time when privilege of that sort is claimed, that executive department, or the head or official, cites in his report some act that Congress has passed.

Mr. DAWSON. That is right. But we have a situation existing today where the department head will say that a communication, an interdepartmental communication-if you ask "Who did you talk to and what letters did you write; who signed such a document that was O. K.'d by various people," he assumes privilege as against the Congress that he is not bound to give that information.

Can you find any legal justification for that, either in the Constitution or in any legislation you ever heard of?

Mr. CROSS. I can find an answer to that in some court decisions where the inquiry is as a matter which is strictly in an investigatory stage. But where the action is taken, where the things done have resulted in a completed action, I know of no authority for claiming secrecy except such as may be found in Congress' own acts.

Mr. HOFFMAN. If the President has authority under the Constitution to negotiate a treaty, for example, do you think that Congress or a congressional committee ought to extend to that the broad phase of our inquiry here today? If a congressional committee should call upon the Secretary of State to produce any correspondence he might have, do you think that any committee of Congress could ask for it in the negotiation of the treaty?

Mr. DAWSON. The treaty powers are taken care of in the Constitution.

Mr. HOFFMAN. Surely.

Mr. DAWSON. And certainly the separation there is clear; so that is a constitutional matter. But if the State Department in handling, if the Secretary of State in handling that power, does not spend money that Congress appropriates efficiently, economically, and so forth, this committee has a right to look into it, has a right to the facts.

Mr. HOFFMAN. I agree with you on that. But we could not ask him what someone said to the Secretary of State.