Comments on S. 1125

Published by the Government Accountability Office on 1971-07-28.

Below is a raw (and likely hideous) rendition of the original report. (PDF)


                                                               STATES GENERAL ACCOUNTING
                                                                                       OF                                        (I
                                                                WASHINGTON, D.C. 20548

                                                                                                                              FOR RELEASE ON DELIVERY
                                                                                                                              Expected at 3:DO p.m.,EDT
                                                                                                                              Wednesday, July 28, 1971

                                                  STATEMENT OF ROBERT F. KELLER           ..-
\,P                    d                 DEPUTY COMPTROLLERGENERAL OF THE UNITED STATES 5

         4                               BEFORE THE SUBCOMMITTEE ON SEPARATION OF POWERS $.3//J'
                                                    COMMITTEE ON THE JUDICIARY
4                                                      UNITED STATES SENATE

     Mr. Chairman             and Members of the Committee:

              We are glad
                     w                   to appear           before       you today        to testify             on

     with     regard         to the exercise                  of executive             privilege.

              S. 1125 would                    amend title         5 of the United               States         Code so as to Drovide                that

     no employee             of the executive                  branch       summoned or requested                       to testify       or produce

     documents         before            the Congress             or its     committees               shall      refuse     to do so on the

     grounds         that     he intends             to assert            executive        privilege;             and no such employee               shall

     assert      the privilege                   unless       at the time         it      is asserted             he presents          a statement

     signed     personally                by the President                 requiring           that     executive         privilege        be asserted

     as to the testimony                        or document           sought.

              We believe                that     S. 1125 is the first                   measure to specifically                       recognize      the

     doctrine         ofnexecutive                 privilege'&:              ~&JS                         sing     information          to the Congress.

     In this         regard        it      is unlike          the Foreign         Assistance              and Related          Programs      Appropria-

     tion     Act,      1971,           and kindred           appropriation             acts      going        back as far       as the Mutual

     Security         Appropriation                 Act,       1960,       as well        as section            634(c)      of the Foreign

     Assistance             Act of 1961.               Those measures,                 in effect,             excused      production       of certain

     documents         to committees                  of Congress           and the General                   Accounting       Office      upon

     certification                by the President                 that     he has forbidden                   the furnishing           of such

     documents          and his            reason      for     so doing.
         The basis       for     the executive           branch        denial     of information           to the Congress             is

the constitutional               doctrine      of separation              of powers which             is interpreted        by the

executive       branch         as granting        it    a privilege         to withhold         information        where such

action       is deemed necessary              in the best            interest      of the country.              While     no court

has addressed         the precise            issue,      it    has     been the subject          of many articles,             studies
and commentaries.

         With   regard         to the effect           of the privilege            on the work of the General

Accounting       Office,         one of the most important                      of our duties          is to make independent

reviews       of agency programs              and to report              to the Congress          the manner in which

Federal       departments         and agencies           carry       out the laws enacted               by the Congress.               In

establishing         the General            Accounting         Office,      the Congress          recognized       that     the

Office       would   need to have complete                    access      to the records          of the Federal           agencies,

and     provided the basic            authority          in section         313 of the Budget              and Accounting          Act,

1921 (31 U&C.              54) as follows:

                "All departments       and establishments        shall furnish        to the
                Comptroller    General such information            regarding      the powers,
                duties, activities,       organization,       financial      transactions,
                and methods of business of their            respective       offices    as he
                may from time to time require            of them; and the Comptroller
                or any of his assistants or employees, when duly authorized
                by him, shall,      for the purpose of securing            such information,
                have access to and the right           to examine any books, documents,
                papers, or records of any such department                 or establishment."

         For the most part,             refusals         by the executive             branch      to grant       us access        to

records       have   been premised            upon departmental                 decisions      that     grant    of access

would     not be in the public                interest         rather      than    a formal       claim     of executive



           In recent       years     we generally          have had good cooperation                        in obtaining           access

to the records             of the executive              departments            except     for    the Department                of State

and the Department                 of Defense       in those         areas which           involve         our relations           with

foreign       countries.            While     absolute       denial          of access      to a document              is quite       rare,

our reviews           are hampered and delayed                    by the time-consuming                    tactics       employed         by

the various           organizational            elements         within       and between         these      departments.             These

delays       occur     in the screening            of records              and in making          decisions           as to whether

such records           are releasable            to the General               Accounting         Office.         It is not unusual
for       our auditors       to request          access      to a document               at an overseas              location      and

be required           to wait       several      weeks while              such documents          are screened            up the

channels        from the overseas               posts     and through            the hierarchy             of those       departments.

           Our experience           in making a study               of the Military              Assistance           Training       Program

at the request             of the Chairman,              Senate      Committee           on Foreign         Relations           is a good

example       of the problems            we have encountered                    in obtaining         access          to information.

In our February             1971 report          on this         study      we summarized           our problems           with

access       to records         and set forth            conclusions           which      we believe          point      up the prob-

lems of access             and the effect          these         problems        have on our ability                  to carry      out

effective        reviews.

           The Department          of Defense           denied      access to records              which       contained          future

planning        information;          routine      reports          prepared         by personnel           which      were evaluative

in nature;           and program       evaluation          group          reports.

         It was and is our position                             that     it      is essential           for      us to have access                    to

all     information               available           to DOD personnel                  who make program decisions                       in order

that     we can determine                   how decisions               were made and whether                      all     pertinent           data

was considered               in reaching                decisions.             With        regard   to evaluation                 material,           we

regularly        make use of internal                          audit     reports            and other         internal        evaluations              and

perform        such independent                      tests     of such material                 as we feel          justified           under the


         If   we are permitted                      extensive          use of internal              audits         and other          evaluative

reports,        we are able to concentrate                              a greater            part   of our efforts                 in determining

whether        action        has been properly                   taken         by responsible               officials         to correct

identified          program weaknesses.                         This     also       helps       to eliminate              duplication           and

overlapping               in audit         effort,           and promotes           full      utilization           of existing               audit        and

investigative               data.

         In order           for     the GAO to carry                   out its          responsibilities                 to review       DOD programs

it     is essential               that     we have access               to and make aspropriate                          review      and analyses

of all        DOD reports                and records           which     evidence            the expenditure               of appropriated


         In commenting                   on a draft           of this         report,        the Special          Assistant           to the

Assistant        Secretary                of Defense>           International                Security         Affairs,        in a letter              dated

September        25, 1970,                stated:
                  II***   the Department of Defense cannot permit to go un-
                 challenged      that section     of the report concerning         com-
                 plaints     that the GAO auditors        were hindered and-delayed
                 in their efforts      because the Department of Defense had
                 denied them access to 5 year MAP planning data and to
                 inspection      and evaluation      reports   known as PEG reports.
                 Apart from the fact that custom, tradition               and precedent
                 have decreed that information             of such internal     nature
                 will not be disclosed         outside the Executive        Branch in

              order to preserve the confidentiality         of the relationship
              of superior   and subordinate,     an understanding    was also
              reached a number of years ago between the General Accounting
              Office  and the Department of Defense whereby planning data
              and inspector   type reports    would not be provided.        The
              Department is, therefore,      both surprised     and chagrined
              over the fact that the GAO would endeavor to make such an
              issue over these specific      categories,    an issue which had
              been resolved years ago."'

         A copy of this         Department          of Defense      letter      was sent to the Chairman of the
Committee      by the Department.

         In making     his     report     to the Chairman           the Comptroller              General    took   note        of

this     Department      of Defense        letter       and advised          as follows:

                     "In regard to the Department's         position    concerning    the
              access-to-records       matters discussed     in the report,      the
              General Accounting        Office has never reached such an under-
              standing with the Department of Defense.               To the contrary,
              we have always maintained           that we are entitled     by law to
              have access to, and the right to examine, all records of
              the Department of Defense and its component commands that
              we consider     pertinent      to the matter or subject      under review.

                      "The inspection    and evaluationreports     referred  to in
               the Department of Defense letter         are management reports
               prepared by a program evaluation         group of the Unified
               Command Headquarters.        We have always regarded complete
               access to reports      of this type as necessary in order for
               us to carry out the responsjbilities          we have to the

         In early     1970, we undertook              a review      of the U.S.          Assistance        to the Philippine

Government      in support         of the Philippine             Civil       Action     Group at the request              of    the
Chairman,      Subcommittee         on U.S.         Security     Agreements           and Commitments        Abroad,       Senate

 Committee      on Foreign         Relations.           The Departments           of State        and Defense      delayed

our work     on this         assignment     to the extent           that      we had to curtail            the scope of our

review     and qualify         our report       to the Chairman.               Our work was seriously              hampered

and delayed         because     in general          we were given          access      to only     those    documents,

    papers,      and records           which      we were able         to specifically             identify          and request            and

    as to those          records       we were given          access      only      after      time-consuming           screening            at

    various      levels      within       the Departments.

            We were restricted                  by ground     rules      established           by the Departments.                    These

    rules     effectively            limited      our review         in the field            to the very       narrow        departmental

    interpretations            of what in their             opinion       was judged           to be the scope of our review.

    This was perhaps            the most restrictive                  limitation        placed      on our work,             and it

    completely          frustrated        our attempts          to review          assistance       to the Philippines                  that

    was not funded            in the military           functions         appropriations.

            Our staff        members in the field                 were advised          that      documents          which    they      re-

    quested      that     were releasable            to us under          the restrictions               of the so-called               ground

    rules     had to be dispatched                 to Washington          for      departmental          clearance.           As a con-

    sequence,       by early          May 1970,      only     four     of 12 documents             which      were requested                by

    our staff       members on Januar.y              28, 1970,         had been released                to them in Manila.

            Following        our review           in the Philippines               we initiated          a study       of United

    States assistance      to the Government of Thailand.                                    In an attempt           to avoid         the
+i,,,,, ,,
     conditions  previously     experienced, the Comptroller                                  General      on June 26, 1970,

    wrote     to the Secretari&of                   Defense       and State         citing      the problems           experienced

    in the Philippines                review,      requesting         thatthey       eliminate          the necessity           for     the

    lengthy      screening           process,      and c'u'ting       the scope and authority                  for     our review

    as follows:

                   "***the   scope of our review will be broad enough to permit
                   our representatives       to investigate     all matters   concerning
                   the receipt,     disbursement,     and application     of public funds
                   related   in any way to our relations         with the Government of
                   Thailand.     Pursuant to the authority         of Section 313 of the
                   Budget and Accounting       Act of 1921, 31 U.S.C. 54, representa-

                 tives of the General Accounting         Office will be requesting
                 officials    in your Department for access to, and when we
                 consider necessary,        copies of any books, documents, papers,
                 or records in the custody or control            of your Department
                 which we believe may contain information            resarding   the
                 powers, duties,     activities,    organization,      financial   trans-
                 actions,   and methods of business related          to the scope of
                 the review."

         Unfortunately,         we have experienced               similar            problems        in obtaininq       access to

documents        required      for     our review       of assistance                to Thailand.

         The policy         of the executive           branch,     with       respect         to release          of information

to the Congress,             was set forth          by the President                 in a Memorandum to the Heads of

Executive        Departments          and Agencies,       on March 24, 1969,                    as follows:

                         "'The policy of this Administration            is to comply to
                 the fullest       extent possible with Congressional           requests
                 for information.          While the Executive Branch has the
                 responsibility        of withholding    certain    information     the
                 disclosure       of which would be incompatible          with the public
                 interest.        This Administration     will   invoke this authority
                 only in the most compelling          circumstances       and after    a
                 rigorous      inquiry    into the actual need for its exercise.
                 For those reasons Executive          privilege     will not be used
                 without     specific    Presidential    approval."

         Although     the Departments              of State      and Defense             indicate        in their      directives

that     it    is their      policy      to provide      maximum cooperation                       and assistance       to the

General        Accounting      Office,          we have found      it      quite       difficult         to obtain      the infor-

mation        which we need to conduct               our reviews           relating         to foreign           assistance


         In our discussions              with     departmental          officials,          they      have frequently          stated

that     the documents         or information           being     withheld            are not releasable              to the

GAO because         of one or more of the following                        reasons:

         (1)     review,      examination,          or disclosure            would       seriously         impair

                 relations       between         the United      States       and other             countries,

                 or otherwise          prejudice       the best         interest         of the United            States,

          (2)       access         to documents            including            information             and debates         used

                    in formulating                policy     decisions             would        seriously          hamper a

                    candid         exchange        of views           within       the agency,            and

          (3)       access         to information            on future             planning         would         not be

                    appropriate              because it        has not received                   the approval             of the

                    President           or    been presented              to the Congress.

          We have characterized                      our current               problems         over     access      to records          as being

those      of frustrations                   and delays        in carrying                out our statutory                responsibilities

rather       than those             attending         outright           refusal          of    access      on a claim         of executive

privilege.             We do not know how close                          our experience                 parallels      that     of the Congress

and its          committees.              We would         however        point          out that        insofar      as they       may be similar,

enactment           of S. 1125 should                 put    an       end to delays              in appearance             and reluctance             to

testify          without       invoking           "executive           privilege."               Under S. 1125 those                requested

to appear           must appear              and the exercise              of the privilege                  is restricted             to the

President.             Under this             procedure,         if      the privilege                 is to be exercised              by the

President           there      should         be no delays             in the hearing               processes         and if       the privilege

is not to be claimed                      there      is no basis               remaining         that     we can see which               could

justify          failure       to testify.

          Leaving          aside     the legal         arguments           pro and con as to the constitutional

basis      for      executive           prfvilege,          S. 1125 assumes the fact                         of its        existence       and

realistically               makes an effort                to restrict             its     exercise         to the President              or by

his written            direction.              The bill,         if     enacted,           should        result      in a freer          flow    of

information            to the Congress                and its          committees              except     in those         cases where the

President           himself         has      decided that disclosure shall be precluded on                                         the    ground
of executive               privilege.

          This      concludes           our statement            Mr. Chairman,                  and we      would     be pleased          to answer

any questions               you may have.