Professor SCHWARTZ. I do not see how the Congress can police and enforce an executive order as such. As far as the President is concerned, of course, he has completely the authority as the administrative head of the Government.

The only question is the one you mentioned. Unless some specific machinery is set up within the executive organization enforcement will go by default. As a practical matter, it is left, I suppose, to the heads of the different departments and agencies which means there is no enforcement.

Dr. CROSS. I was going to say that in my statement which I filed but have not read, I venture to suggest that that was an appropriate job for action by the Congress in setting up stated standards for declassification and downgrading and the enforcement of each of them.

Mr. KLAGSBRUNN. I would go one step further and say that one of the reasons for such an office of public information policy as I suggested would be to have a policing agency which, in turn, the Congress and its appropriate committees could watch for enforcing just such administrative steps.

Mr. Moss. Mr. Klagsbrunn, would you care to comment on the recommendation of Dr. Schwartz for the commission or agencies to police the type of information which might be more properly classified as state secrets?

Mr. KLAGSBRUNN. It is a very interesting suggestion that I had not thought of before. My quick reaction to it would be that I would like to leave it as a last resort. It might be necessary ultimately. I would hope that between the executive and the legislative it would not be necessary to set up an umpire in the form of the judiciary. I would rather go to the course that I had referred to a number of times of the executive action under congressional policy policed by congressional watchdogs.

Mr. Moss. You would agree, however, that the Congress would have the authority to establish such a commission?

Mr. KLAGSBRUNN. I do; yes. I would simply hope that if such a suggestion as I make was not workable-I would hope that the suggestion such as I made would be workable, but if not, I would want to entertain seriously a suggestion such as Dr. Schwartz made.

Mr. Moss. Professor Schwartz, would you care to comment on the suggestion? Would you care to comment on the suggestion Dr. Cross, of Dr. Schwartz for the commission dealing with information of a state secret category, and the recommendation of Mr. Klagsbrunn as well, for the establishment of an office of information?

Dr. CROSS. Mr. Chairman, both suggestions are brand new to me. This is the first time I have heard them today. I have an instinctive fear of one more Bureau superimposed upon the evisting bureaus, and perhaps more of a long-range confidence in the wisdom of Congress when it concentrates upon this, but that is not a final answer. It is a large issue, and one which I would like to think over and have permission to put in a leter about it later. It is a big thing.

Mr. Moss. You would think it would be very helpful to us?
Dr. CROSS. Yes, sir.

Mr. Moss. You indicated in your testimony your approval of the actions of Congress in writing the specific statue covering the disclosure of information or the withholding of it.

Do you feel that in most instances the Congress has taken a negative rather than affirmative approach in the language employed in those

statutes? It has placed the emphasis upon withholding unless there is a public interest which would be served.

Would it not be better in most instances to change emphasis?

Dr. CROSS. Yes; of course, I think it would. My whole philosophy is that it would. In saying what I did, I was referring particularly to those series of specific statutes that say "the following information shall be secret," so to speak.

I have listed those, as you know, in my book, and there is a considerable number of them.

Then on the other hand there are those who say "the following shall be held open to public inspection." As I say, in nearly all instances, Congress there was concentrating on that very question. Its legislation seems to me to be eminently wise in most instances. I could quarrel here and there and differ with some of it, but it is really a superb job overall. I think that the Congress could keep on doing that against the background of general legislation which defined public records and declared the right to inspect them except as otherwise provided by law.

Mr. Moss. You would use the title of the old song: "Why don't we do this more often?"; is that right?

Dr. CROSS. Yes; I would say so. In the discussions about the Constitution and the separation of powers I hope we will not lose sight of the fact that the public would not be involved in any difficulty of separation of powers as between the Congress and the executive; that all it would be doing in seeking information would be calling upon the aid of the Judiciary to determine its rights.

Mr. Moss. Dr. Schwartz, we are sorry to hear that you have to leaveearly, but on behalf of the committee I want to thank you for the very helpful statement which you have given and for the cooperation which you have shown this committee.

I hope that each member of the panel will continue cooperating with us as we get to the stage of drafting a report and the necessary legislative recommendations.

Professor SCHWARTZ. Thank you, sir.

Certainly, in any way in which I can be helpful I will be more than glad to do so. I shall be eager to continue any contribution which I have been able to make.

Thank you, sir.

Mr. Moss. Thank you.

Mr. Mitchell, did you have any additional questions?

Mr. POLAND. Mr. Chairman, for the purpose of the record I had a question which I wanted to ask Professor Schwartz which he answered as he was leaving the room. I asked him whether it should be inferred from his testimony that there should be a statutory differentiation between the right of Congress to information and the right of the general public to information, and he asserted positively that it was his belief that that differentiation should be recognized in the statute as he marked it out in his testimony today.

Mr. Moss. Perhaps you might like the comment of our other two panel members.

Mr. POLAND. I should be happy to have it. I raised the question with them because he was the one who made the initial suggestion.

Dr. CROSS. My reaction to that would depend more on that which I have not seen, and that is the difference between the declaration of

the rights of Congress and those of the public. I would object if it took any such form as the present Administrative Procedure Act does, and creates a second-class sort of segregated class of people to whip the public whose suffrage determines what Congressman shall be here to exercise their rights to obtain information from the executive branch.

Mr. KLAGSBRUNN. I would agree. I think there would have to be some distinction because the Congress is certainly, in my judgment, entitled to classified information for its purposes which it should then treat as classified and which could not be made publicly available. While the area should not be too large, I do not think that the Congress should be prevented from getting certain information that regularly cannot be publicized throughout the world at large.

Mr. Moss. You would give Congress the broader right in the field of information withheld because of a national interest and national security?

Mr. KLAGSBRUNN. That is correct. I would hope that the secrecy to the public would be kept at a minimum and, therefore, there would be relatively little distinction between the two areas, but I would give Congress the broader right to information.

Mr. POLAND. I think, Mr. Chairman, that Dr. Schwartz testified that Congress was entitled ipso facto to all information other than that information in the area of state secrets. Therefore, it should have a limited access. I understood from that that the public would not have as broad an access and then be subject to some of the limitations in his view and the right of Congress to access would be subject to no limitation except with respect to state papers.

Mr. MEADER. Mr. Chairman, I have one question of Dr. Cross that slipped my mind until just now.

Dr. Cross, I did not have a copy of your prepared statement, but as I recall it, you link the right of the public to know in some way to the right of free expression or the right of free speech under the First Amendment. I did not quite follow that line of reasoning. I wonder if you could clarify it for me?

Dr. CROSS. Well, the basis for it is, of course, that there is no such thing as a right to publish or print information without being able to get access to it, and that, therefore, to be effective there must be a right of access to information.

Mr. MEADER. Well, I still am a little bit puzzled about the right of a person to express his views as being connected with his right to information within the executive branch of the government. It hardly seems to me that his right of expression of his views is infringed by reason of the fact that there is a large area of information from which he is excluded.

Dr. CROSS. That is my point, exactly, and my right is to publish or print, though I own no auditorium and edit no newspaper, Concerning the proceedings of this panel today, it would have been of slight value if its doors had been shut and guarded against me, and nobody here leaked.

Mr. MEADER. Well, you were thinking of a practical consideration rather than any legal connection, I believe. Am I correct?

Dr. CROSS. I could cite a certain number of judicial decisions to the effect that a right of access to information is a part of the guaranty under the First Amendment.

Mr. MITCHELL. What happens in a case where there are no rights specified as inherent rights? Do you take the view that all the rights that are not in the Constitution are reserved to the people?

Dr. CROSS. Well, we get into rather an elaborate area of constitutional law that as a mere rough and tumble newspaper lawyer, I would not expect to speak with authority on, but if the people who were about when the Constitution and the First Amendment were adopted knew what they were talking about, they would not intend to create a freedom of information to speak and print about government actions and at the same time permit government to prevent them from getting any information about which to speak and print.

Mr. POLAND. Mr. Chairman, I have just one other question which, perhaps, is out of order, but in the order of sequence. I wondered whether either of you gentlemen attached any significance to the fact that the memorandum of the Attorney General of May 17, 1954 contains no statement or opinion and gives no advice, but just merely recites historical incidents in sequence, and makes a statement of the separation of powers.

Does that have any significance as differentiated from an opinion that has some effective utility in the Executive Branch?

Mr. KLAGSBRUNN. I do not know, Mr. Poland, that it does, other than to indicate that it is not so completely reasoned or thoughtful a document as it might be. It would seem as if it were more a document of authorities in support of a particular action that the executive proposed.

Mr. POLAND. May I stop you there to say that there is no evidence within the memorandum that any

Mr. KLAGSBRUNN. Question had been asked?

Mr. POLAND. No. The question had been asked, but any course of action proposed.

Mr. KLAGSBRUNN. That is why I say it is not a complete opinion of well-marshalled material. It is source material in support of a position.

Mr. MITCHELL. In fact, it does not even cite any cases except one; does it?

it.

Mr. KLAGSBRUNN. There probably was not enough time to complete

Mr. Moss. Are there any more questions, Mr. Meader?

Mr. MEADER. I have no further questions at this time.

Mr. Moss. Mr. Poland?

Mr. POLAND. I have no further questions, Mr. Chairman.
Mr. Moss. Mr. Mitchell?

Mr. MITCHELL. I have no further questions, sir.

Mr. Moss. Well, I want to thank you gentlemen for the assistance which you have given the committee, and I want to express the same hope that I did a few moments ago to Professor Schwartz, and that is that we can call upon you as this study continues, and that we can seek your advice on the more difficult problems of writing specific legislative recommendations.

The committee will now stand adjourned until ten o'clock tomorrow morning.

(Thereupon, at 4:45 p. m., the subcommittee adjourned, to reconvene at 10 o'clock the following morning, Wednesday, May 9, 1956.)

AVAILABILITY OF INFORMATION FROM FEDERAL

DEPARTMENTS AND AGENCIES

Part 3-Panel Discussion With Legal Experts

WEDNESDAY, MAY 9, 1956

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT INFORMATION,

COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D. C.

The subcommittee met, pursuant to notice, at 10 a. m., in the caucus room, Old House Office Building, Hon. John E. Moss, Jr. (subcommittee chairman) presiding.

Present: Representatives Moss (presiding), and Meader.

Also present: John J. Mitchell, chief counsel; William Pincus, associate counsel to Committee on Government Operations; and Samuel J. Archibald, staff director.

Mr. Moss. The committee will now be in order.

We will resume the discussions of the legal panel. This morning we have with us Mr. Hugh Fulton, New York attorney, former chief counsel of the Truman Senate committee investigating the war program and former Special Assistant United States Attorney General; Prof. Frederick S. Siebert, director of the School of Journalism, University of Illinois, and legal counsel for the National Editorial Association, Inland Daily Press Association, and Illinois Press Association; Mr. Harold L. Russell, member of the law firm of Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga.; Prof. Frank C. Newman, professor of law at University of California School of Law, and former attorney for the Department of the Navy and the Office of Price Administration.

We have here at the committee table Congressman George Meader, Mr. Pincus, counsel for the Committee on Government Operations, and Mr. John J. Mitchell, chief counsel for the Subcommittee on Government Information.

Before we hear from the members of the panel I have a telegram I would like to read into the record. It is addressed to Representative John Moss, House Office Building, Washington, D. C.

Harold Cross in his statement today distinguishes between the portion sanctioned by the ASNE Board and the portion not sanctioned. This is technically correct. The board had no chance to see and approve his full statement. However, I want to make it perfectly clear that I personally, and I believe virtually every member of the society believes as Harold Cross does about every particular in this brilliant statement.

I have been chairman of the Freedom of Information Committee 3 years and president of the society 1 year during the 5 years Harold Cross has been our counsel, and I think I know the temper of the editors who make up our mem

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