MILITARY SITUATION IN THE FAR EAST SATURDAY, JUNE 2, 1951 COMMITTEE ON ARMED SERVICES AND THE The committees met, pursuant to adjournment, at 10:02 a. m. in room 212, Senate Office Building, Senator Richard B. Russell (chairman, Committee on Armed Services), presiding. Present: Senators Russell (chairman, Committee on Armed Services), Connally (chairman, Committee on Foreign Relations), Wiley, George, Smith of New Jersey, Hickenlooper, McMahon, Sparkman, Gillette, Brewster, Saltonstall, Johnson of Texas, Morse, Kefauver, Knowland, Hunt, Cain, and Stennis. Also present: Mark H. Galusha and Verne D. Mudge of the committee staff of the Armed Services Committee; Francis O. Wilcox, chief of staff; Carl M. Marcy, Committee on Foreign Relations. Chairman RUSSELL. The committee will come to order. Senator WILEY. I believe you are next. Senator WILEY.' Have we been called to order, Mr. Chairman? Chairman RUSSELL. Yes, I have called upon the Senator from Wisconsin. TESTIMONY OF HON. DEAN G. ACHESON, SECRETARY OF STATE, ACCOMPANIED BY ADRIAN S. FISHER, LEGAL ADVISER-Resumed Senator WILEY. Mr. Secretary, I find in the ticker this morning this statement from London: Britain is in touch with United States, the Commonwealth countries and other interested governments on the possibility of a truce in Korea, authoritative quarters said today. These sources said that the Foreign Secretary, Herbert Morrison, has made a new approach to interested governments with a view to ending the Korean War by negotiation. What do you know about that? Secretary ACHESON. I don't know anything about that, sir. MILITARY POLICY AND SITUATION IN KOREA Senator WILEY. Here is another dispatch: TOKYO.-Lt. Gen. James A. Van Fleet said today that the United States Eighth Army has quit chasing Reds in North Korea but will continue to block Communist aggression. Do you know anything about that? Secretary ACHESON. No. That is a statement of military operations which I am not competent to comment on. Senator WILEY. Well, what I am getting at, does it comply with our political policy that we should quit chasing the Reds and just must block Communist aggression? Is that our policy? Secretary ACHESON. I think that's a statement of the military situation. He is just describing what has happened in this particular tactical advance. Senator WILEY. I realize that is what it purports to be. Now I am asking what our political policy is. Does it coincide with this "quit chasing the Reds and just block Communist aggression"? What is our policy there now? Secretary ACHESON. Senator, I think we are talking about two slightly different things. I think what General Van Fleet is doing is describing his military operations, and I think, as I understand his statement, it is that in the present state of that operation he has stopped his advance. Now he may go on to say because the other fellows are stopping their advance, or whatever the military reason is. At any rate he has done that. Now, as far as our purpose in Korea is concerned, we were discussing that yesterday, and I tried to point out that it was to repel this armed attack and to restore peace and security in the area. PRESIDENT'S PRIVILEGE TO WITHHOLD INFORMATION Senator WILEY. Mr. Secretary, a few days ago I had a little difference with my colleagues on the committee over a question asked General Bradley. I want to read into the record at this time a little statement from a wonderful article in the Yale Law Review under title of "Government Immunity From Discovery," whitten by two very prominent lawyers. I read as follows: Historically the claim of Executive immunity founders upon the ruling of Chief Justice Marshall in the Burr case; harks back to a royal prerogative which found scant favor on our soil and even in the field of sovereign immunity is regarded in increasing disfavor. In a state that rests upon the consent of the governed, the claim of the government to greater privileges than accorded citizens must rest not on administrative conveniences, not on archaic notions or prerogatives alien to our institutions, but on genuine necessity. Our Nation has again and again risen above partisan strife because of general confidence in the fairness of the Government. That confidence is indispensable to continuance of our domestic institutions. It can only be impaired by governmental claims of special privilege against the citizenry. I repeat: It can only be impaired by governmental claims of special privilege against the citizenry. On page 1458 is this statement: It was on this state of facts that Chief Justice Marshall ruled. He said, "That the President of the United States may be subpenaed as a witness and required to produce any paper in his possession is not controverted." Now, in the Burr case, the President was not a party. To me, at least, investigating the reasons for the recall of General MacArthur, the President is in the position voluntarily of justifying his act, and thus, to all intents and purposes, he is a party. He apparently voluntarily submits his Secretary of State, his Chief of Staff and other advisers to establish his position before the bar of public opinion; and at the present time he has given no reason for not permitting the Chiefs of Staff and others to tell what was said in the various meetings between the 5th and 11th of April. With this preface, I shall pursue a few questions. Mr. Secretary, your appearance is without subpena, and voluntary on your part, is it not? Secretary ACHESON. I am appearing here at the request of the committee. Senator WILEY. You have been subpenaed? CONVERSATIONS BETWEEN PRESIDENT AND ADVISERS Senator WILEY. If I were to ask you what was said in the conversations that took place between you and the President and others in relation to the MacArthur matter, between the 5th and 11th of April, would you claim such conversations were privileged; would you say they were confidential; or make the claim of both privileged and confidential? Secretary ACHESON. If you were to ask me what was said, I should have to say that I could not answer that question, because I am under direct instruction of the President of the United States not to repeat what was said at these meetings at his office. If you wish me to say what matters were taken up, what the outcome of each particular meeting was, what conclusions were reached, what action was agreed upon and taken, I shall be very glad to go into that. If you wish me to answer questions in regard to my own attitude on the relief of General MacArthur, I shall be glad to answer those questions, though I cannot say what I said at any one of these meetings. RIGHT OF PRESIDENT TO INSTRUCT SUBORDINATES Senator WILEY. I want to thank you, Mr. Secretary. I think that statement you just made clarifies everything. You say you are under instructions from the President. I presume, as a lawyer, you claim the President's privilege then or that they were confidential, and of such a nature that, within certain decisions, you are not privileged to repeat the conversations; is that right? Secretary ACHESON. I think that is what I said; yes, sir. Senator WILEY. Would you claim that what was said in those conversations would be against the public interest to disclose or against the President's interests to disclose? Secretary ACHESON. I wouldn't say either. I would just say that the President has the right to instruct his subordinates as to what they should say or not say in regard to conversations in his presence of an official nature, and when he gives that instruction, so far as I am concerned, that instruction has to be obeyed. Senator WILEY. Well, do you claim it is the privilege of the Government or the privilege of the President? Secretary ACHESON. Well, I am not trying to analyze the matter, Senator. Senator WILEY. No, no; I know you are not. Secretary ACHESON. It seems to me that the whole structure of our Government means that in carrying out its highest functions the three coordinate branches cannot interfere with one another, and require the disclosure of confidential material. I should think that it would be very clear, indeed, for instance, that neither the executive nor the legislative branch could require the members of the Supreme Court to disclose what was said by any of them in their conferences when they decide cases. Senator WILEY. Do you claim it constitutes a state secret, these discussions, in relation to the planning and the execution of the recall of General MacArthur? Secretary ACHESON. I think that it-I don't know whether you would call it a state secret-it is a confidential matter that took place with the President among his advisers. COMMITTEE PROCEEDINGS AS COMPARED TO COURT PROCEEDINGS Senator WILEY. I wonder if you see any similarity between these proceedings and any proceedings in court? Secretary ACHESON. I have not thought about that, sir. Senator WILEY. Do you think the same rule should apply in Senate investigations in relation to discovery as in a trial in court? Secretary ACHESON. I should think the same rule would apply in court in regard to the conversation about which you are asking me, and if I were examined in court on this subject I should make the same reply. Senator WILEY. Well, now, my question was more or less a legal question, whether or not the rules of discovery, the Federal rules, which have the effect of law, would apply in an investigation by the Senate the same as they apply in civil cases in Federal court. What is your judgment on them?" Secretary ACHESON. I should think they would not apply to this situation at all. Senator WILEY. Is not one of the issues in this investigation, was the President justified by the fact even though he had the arbitrary power to recall MacArthur? Secretary ACHESON. I don't think I am competent to say just exactly what the issues are in this investigation. Senator WILEY. In your opinion should the Government or the President in a case like this, when he has exposed part of his hand with the facts, be obliged to expose all? Secretary ACHESON. No, sir; I think the President is the sole judge of what he should disclose in regard to confidential private discussions with his own Cabinet. Senator WILEY. Are you acquainted with the Cotton Valley Suppliers case (239 U. S. 940)? Secretary ACHESON. No, sir. Senator WILEY. Do you think that the law of waiver has any application in a case like this where Presidential advisers come in and are willing to tell conclusions to the committee, that the law of waiver might apply in a case like this? Secretary ACHESON. No, sir. Senator WILEY. In civil actions where the Government is a party, the courts have held that rules I and 81 of Federal Rules of Civil Procedures apply to the Government. They are, as you know, rules of discovery. I think you have answered this question. Do you see any analogy between civil actions and a proceeding by the committee, joint committee of the Senate? Secretary ACHESON. No, sir. Senator WILEY. Do you claim executive immunity for discovery rests on separation of power-is that what you claim? Secretary ACHESON. It seems to me to be a basis for it. Senator WILEY. Would not that immunize executive suits altogether? Secretary ACHESON. Immunize what, sir? Senator WILEY. Executive suits. Suits against any executive department. Secretary ACHESON. I should think not. Senator WILEY. It is undebatable, isn't it, the Congress could authorize suits against executive agencies and subpenas could be issued to compel documents and testimony, is that correct? Secretary ACHESON. I think the Congress has authorized suits against executive agencies. MEETINGS WITH PRESIDENT ON DISMISSAL Senator WILEY. Now, Mr. Secretary, on the fifth you said yesterday that you got a telephone call from the President, and the call was the result of the Martin letter. Am I right about that? Secretary ACHESON. I said yesterday, sir; that on the late afternoon of the fifth, the President called me on the telephone and directed me to be at his office the following morning to take part in a meeting, the subject matter of the meeting being the Martin letter, letter from General MacArthur to Congressman Martin, and what action should or should not be taken in regard to it. Senator WILEY. You went to that meeting the following morning, did you? Secretary ACHESON. Yes, sir. Senator WILEY. Who was present? Secretary ACHESON. The President was present, General Marshall, General Bradley, Mr. Harriman, and myself. Senator WILEY. Was the letter in question discussed? Secretary ACHESON. Yes, sir; the letter was discussed. The whole situation was discussed. Senator WILEY. What do you mean by "whole situation"? Secretary ACHESON. The various situations which had been created by this letter which situation of course was that General MacArthur had taken open difference with the President regarding a most vital matter. That situation was discussed for some time. Then the President directed that those who were there present should meet in the afternoon and consider the matter further, and that we should meet with him again on Saturday morning. We did meet on the afternoon of Friday. Senator WILEY. The same group? Secretary ACHESON. Yes, sir; the same group. Secretary ACHESON. No, sir; and we discussed the matter further. We then met with the President on Saturday morning. At the Saturday morning meeting it was decided that the opinion of the Joint Chiefs of Staff should be asked for. |