effect and it does not reflect my judgment about the way in which the war should be brought to an end. If this Mansfield amendment does turn out to be White House policy, it will be an accident and not the result of respect by the White House for Congress' view.

Recently, Senator, I started a file on examples of the administration breaking or bending the law. Your committee is very familiar with the impoundment of funds appropriated by Congress, with the misuse of the veto power, with the diverse ways the Executive may find money to do what it wants to do regardless. (See "The Billions in the White House Basement," Washington Monthly, January 1972.)

Here are some recent examples in foreign affairs gleaned from the press: (1) The administration's circumvention of the law barring all aid-except humanitarian-to Pakistan during the Bangladesh conflict. (2) The lack of even temporary compliance by the Executive with the ban on both military and economic aid to the Government of Greece in the foreign aid authorization bill for this fiscal year (let it be noted that Congress left the President an out in that legislation.) (3) The violation of the terms of the treaty to halt the spread of nuclear weapons by not complying with a provision requiring the halting of the supply of fissionable materials to four West European countries.

Numerous recent examples of Executive violation of laws relating to domestic matters could be cited, and you could do a better job of that than I can, Senator.

I regret that various representatives of Executive departments. Mr. Erickson from Justice, Mr. Buzhardt from Defense, Mr. Stevenson from State, could not be here today. It is always amazing to me how these house lawyers can continue to offer incredible yet smooth rationalizations to justify Executive violations and circumvention of Congress-made law. When they do appear, you may be sure that they will say: Let's settle this through nonlegislative means. We can work out some practical arrangements that will given Congress the information it needs. Don't be bought off by this carrot which is another ploy for placing Congress at their mercy. Just ask Senator Case about his experiences.

Senator, you recently stated before the Supreme Court that legislators are one of the most timid creatures I know and can easily be intimidated. How true. There is a growing body of opinion in this country that sees Congress in just this light vis-a-vis the White House.

Congress seems to be helpless in foreign relations. To put it harshly, how many armies does Congress have? This is not meant to be a flippant question. The raw power at the command of the President radiates into every relationship with that office. Power realities between institutions are inseparable from public conceptions of those institutions. Both are at the root of Congress' problem.

If you are not to continue to spin wheels, Senator Ervin, drastic action I submit is required to give any meaning to the word balance in congressional executive relations. Professor Bickel has urged court tests of constitutional powers. I heartily agree.

But more is needed. If you are not to be treated contemptuously by the White House, then the time has arrived to stall the legisla

tive process and force an institutional showdown between the Senate and the President. I realize this is a drastic step, but it is needed to wake up the people of this country to Executive dictatorship. I do not use those terms lightly.

I propose simply, Senator, a legislative blockade. It takes 34 Senators willing to permit a filibuster-the same number it took to block civil rights legislation-against the processing of all major government business, for example, authorization and appropriation billsuntil the President gives his public pledge to cease and desist from prosecution of a war for which he has no congressional or constitutional authority, or agrees to ask Congress for such authority.

Not to take this drastic step in protecting the war powers of Congress is to permit the continuation of legislative impotence and abdication in foreign relations, at least in the short run. They don't respect you very much at the other end of Pennsylvania Avenue, no matter what they say.

Once Congress has abdicated, we do not have a government of laws, but a government of men. Freedom is then in danger of being extinguished.

Thank you very much.

Senator ERVIN. I whish to thank you for a most interesting and informative statement.

You raise a very interesting point in stating that if this bill passes in its present form and not be vetoed successfully, that it would give the President many implied powers-that is, implied on his part-so that every executive agreement which is submitted to Congress, and which has not been repudiated by Congress within the 60-day period, would arguably constitute an express grant of power to him from the Congress.

Mr. JACKSON. Senator, I can see Mr. Stevenson or Mr. Erickson making that very point before this subcommittee sometime in the future.

Senator ERVIN. When the Supreme Court refuses to grant certiorari, the justices do not imply that they necessarily approve of the decision which is sought to be reviewed. But, it certainly has that effect for the time being at least.

Mr. Jackson. And the public, I think, reads it that way.

Senator ERVIN. Now, there can be no doubt that during recent years congressional power not only in the field of foreign relations and in the field of war powers, but in virtually all other fields, has been sharply eroded by the delegation of power to the President by the Congress, by the failure of Congress to act, and in many cases by the assumption by the Executive of power which I do not think the Executive has. We had quite an illustration of that during the hearings on the Kleindienst nomination. The White House refused to allow a so-called Executive aide to come down to testify with respect to matters, which the administration had already made public by other witnessses, with respect to the aide's dealing with third persons. I certainly respect the right of the Executive insofar as executive privilege is confined to communications between presidential aides or other executive employees and the President, or with respect to communications of a confidential nature between different presidential aides or executive employees when they are assisting the

President in carrying out the duties of his office. But, I do not think there is any privilege that exists to withhold information about matters that have already been made public by other administration officials, or with respect to official dealings between presidential aides and third persons. That was the reason I raised the point that I would take the position of consenting to do nothing on the nomination unless a presidential aide, Peter Flannigan, came down and tes tified. I am glad to say that the White House at that point, at last, after much postponement, capitulated. Fortunately, the Congress, in that case, had a club to hold over the President. But in so many cases, Congress has no club that it can hold over the President insofar as seeking to get information.

Mr. JACKSON. You had a big fish that they wanted, Senator, and I think you scared them a little bit. I do not know how you crack that nut of executive privilege. I read the other day that there are something over 2,000 employees on the White House staff now. Maybe about the only way you can get at it, and there would be a real howl and scream, is if the Appropriations Committees of the Congress very carefully specifically examine the monies being appropriated to be spent by the staff. That might conceivably throw the fear of God into them, although I can see the President saying that you cannot tamper with my immediate staff, and this is a pro forma thing, giving appropriations for my staff, and I will find ways to continue the operations of the White House Office, regardless of what you do in Congress. I really think the President would do that.

I cannot believe, Senator, what I have seen in this country in the last few years when it comes to disrespect for constitutional balance, or disrespect for the Congress, or disrespect for law on the part of our so-called leaders in the White House.

Senator ERVIN. Before we leave executive privilege, it seems to me from studying the philosophy and most of the historical precedents on both sides, that the sole objective of executive privilege is to protect the secrecy of communications within the executive branch of the Government. I think you can justify it because where you are trying to reach or establish a matter of policy, you want as free a discussion as possible. A person would be restrained from expressing his honest ideas if he thought that every fool notiton he might advance in such a discussion would be in the headlines of the next day's papers. I recall when I became a member of the North Carolina Supreme Court, the chief justice, when we had our first conference, said to me:

We have a system here under which the newest member of the Court has to vote on each case first to keep him from being intimidated by those who have more experience. Now, you will have to vote first on all of the cases that we are considering at this conference. If you will give us the reasons for your vote, it will be helpful to us, because if your reasons are good, they would be helpful. If they are not very wise, there is no way to deal with a foolish notion quicker than to run it by somebody else who could take a swat at it.

I think that that is true about meetings within the executive branch of the Government that involve policy. Their secrecy ought to be respected.

But certainly when the matters have already been divulged to the general public, they no longer need to be kept secret. When they are

with third parties, certainly they ought not to be considered to be secret. That is just one indication of the theories that have been advanced for the first time in this Administration, or since I have been in Washington, that the mere fact that a man is classified as a Presidential aide, he is exempt from any obligation whatever to furnish any information whatever to the Congress.

Mr. JACKSON. Senator, I can see the President, himself, using executive privilege, and only himself using it to protect his confidential communications with his aides, such as a memo from Henry Kissinger, recommending certain options to the President. But, I cannot see the easy use of the executive privilege by the Secretary of State or any other Cabinet officer where they want to cover up some business in their department, or where they can cover up important internal planning documents. I cannot see this. For example, on the foreign aid program, the documents being denied the Senate in the Foreign Relations Committee. They want to know what the executive branch is projecting in foreign military aid for the next 5 years. I think the Foreign Relations Committee has a right to hear that.

Senator ERVIN. Well, I certainly agree with you on that, because when they ask for an authorization bill, that is a request on the part of the President for funds to carry out certain proposed activities. I think Congress has the right to know what those proposed activities are as a part of its power to determine whether or not the appropriation should be authorized or made.

Mr. Jackson. Senator, what would you think about, if I may be so bold as to ask you a question, what would you think about Congress authorizing, let us say, a program of military aid to a foreign country, and appropriating the money, and then supposing Mr. Kissinger's staff, instead of AID, or instead of the State Department, or instead of ISA in Defense, supposing they then drew up some suggested changes in their program for the next year, they were the source of that. Should those documents from Kissinger's staff, and I am just speaking off the top of my head, should those documents of Kissinger's staff be subject to being seen by Congress?

Senator ERVIN. I think so. Unless Congress itself wishes to expressly exempt itself from receiving that information, I do not think the executive branch can make that determination.

Mr. JACKSON. I do not think there is any doubt in anybody's mind in Washington, anyway, that the Secretary of State is not the key foreign policy adviser to the President these days. He makes substantive foreign policy suggestions, and his staff makes suggestions about the programs of the State Department and the Defense Department and USIA, but I just do not know how you get at Mr. Kissinger.

Senator ERVIN. Well, that is a recent development in Washington. Until fairly recent times, the departments of Government carried out the policies of the Administration, and the Secretaries willingly came down and communicated with the Congress. But, we now have a system that has been gradually developing during recent years. I think that it became very strong during the Eisenhower Administration, and it accelerated during the Kennedy and Johnson Administrations and has reached its culmination in the present Administra

tion. Today, most of the powers of government are exercised in the Executive Mansion by White House aides rather than by the heads of the departments.

Mr. JACKSON. Why is it not possible to summon Mr. Kissinger, and then join the issue in court?

Senator ERVIN. You do not have the right to summons where he was involved in a communication with the President. Also, I think there is some limit on the power to elicit information about dealings with foreign countries while they are in the state of negotiations, because you might thwart the purpose of the negotiations. Certainly there are some things that all White House aides do that ought to be subject at least to the right of Congress to hear about what they are doing, especially when you get outside of the very narrow, specific area of communications between them and the President, or between them and other executive aides. I think the first exertion of executive privilege was made by George Washington in respect to the proposed treaty with the Indians, as with respect to his aide. He actually permited Congress to see the documents that it was required to see, but that incident is still cited as the authority to withhold the documents, although he did not actually withhold them.

Mr. JACKSON. As I recall, he did not have too happy a time when he went down to the Senate at one time.

Senator ERVIN. No. He came down to the Senate, having taken the words "advise and consent" to mean that he ought to get prior advice from the Senate. It was a very uncomfortable day for him. But, I think that illustrates that from the standpoint of negotiating a treaty or negotiating an executive agreement, that it is necessary in the nature of things that it be negotiated by the President. Of course, the Constitution requires a treaty, after being so negotiated, to be submitted to the Senate. I think that the Case bill, and this bill, certainly are recognition of the fact that after they are negotiated, that they ought to be submitted to the Congress for its consideration.

Mr. JACKSON. How do you make accountable a man like the Director of OMB? I believe he is the highest Presidential appointment not subject to Senate confirmation, and I know his powers are vast. I remember watching in prior years these powers which were less impressive than they are today. It seems to me you have to make that official in that powerful position in some way accountable to the Congress.

Senator ERVIN. Well, certainly we gave him very vast powers, and many of us have misgivings on some of them.

Professor Miller.

Mr. MILLER. Just a couple of questions, Senator, if I might. Would you agree, sir, that there is a shared power between the Congress and the President on foreign policy?

Mr. JACKSON. Absolutely. I do not see how you could read the Constitution any other way.

Mr. MILLER. All right, then. It requires, I take it, a high degree of cooperation. I suppose that you would agree with that also? Mr. JACKSON. And restraint, yes, sir.

Mr. MILLER. Now, do you see any area of exclusive Presidential power that would not permit the Congress to take a look at any