April 4, 1973
Page 10984
ROY ASH REFUSES TO TESTIFY
Mr. MUSKIE. Mr. President, on April 10, 11, and 12 the Subcommittee on Separation of Powers of the Judiciary Committee and the Subcommittee on Intergovernmental Relations of the Government Operations Committee, with the participation of the Judiciary Subcommittee on Separation of Powers, will begin hearings on executive privilege and Government secrecy.
Senator ERVIN and I had requested that Roy L. Ash, Director of the Office of Management and Budget, who holds a key policy position in the shaping of Government information practices, personally testify at those hearings. Mr. Ash has twice refused our request, deferring to the Justice Department to explain the administration's policy in this vital area. Senator ERVIN and I find Mr. Ash's refusal unacceptable.
I request unanimous consent that our joint statement be printed in the RECORD at this point, along with a list of the witnesses who will appear during the first 3 days of these important hearings and the exchange of correspondence between us and Mr. Ash.
There being no objection, the material was ordered to be printed in the RECORD as follows:
JOINT STATEMENT OF SENATORS ERVIN AND MUSKIE
The refusal of Mr. Ash to give us his testimony on government information policies he helps formulate evidences the same general disdain for the role of Congress that also marks the Executive Branch's persistent efforts to deny the Legislative Branch the information it needs to perform its duty.
Mr. Ash's position at the center of power over budgetary information is evident. He has already stated his opposition to measures we support that would enable the Congress and the public to see agencies' estimates of their real budgetary needs before his Office rewrites those estimates into sanitized fairy tales.
We have discussed that policy with Mr. Ash before, without being able, under pressure of time, to obtain a clear understanding of his preference for secrecy. Now he refuses an invitation to elaborate his arguments, suggesting to us that he prefers secrecy to cooperation.
Our hearings will explore the whole area of policy concerning the handling, protection and disclosure of information controlled by government officials. The issues involved are not narrowly legal ones, but extend, among other things, to practices of setting fees for access to government files.
The Office of Management and Budget plays a major role in shaping such policies. The refusal of its director to discuss those policies with the Congress blocks intelligent analysis of Administration practice and hampers the effort to reform procedures which now, in many instances, go counter to the intent of Congress.
We deeply regret Mr. Ash's refusal to cooperate.
Following are the names of witnesses who will appear at the joint hearings of Senator Ervin's Subcommittee on Separation of Powers of the Judiciary Committee and Senator Muskie's Subcommittee on Intergovernmental Relations of the Committee on Government Operations. The Judiciary Subcommittee on Administrative Practice and Procedure, chaired by Senator Edward M. Kennedy, D-Mass., will also participate in the hearings.
April 10:
Senator J. William Fulbright (D-Ark.). The Honorable Richard Kleindienst, U.S. Attorney General.
The Honorable Clark Clifford, former Secretary of Defense.
April 11:
Senator Adlai Stevenson, III, (D-Ill.), David Cohen, Vice President, Common Cause.
Harding Bancroft, The New York Times, The Honorable Elmer Staats, Comptroller General of the United States.
April 12:
Ralph Nader.
Representative William Moorhead (D-Ps.). Raoul Berger, Harvard Law School.
MARCH 16, 1973.
Hon. Roy L. Ash,
Director, Office of Management and Budget.
Washington, D.C.
DEAR Mr. ASH: The Senate Subcommittee on Separation of Powers of the Committee on the Judiciary, jointly with the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, will hold hearings on Executive Privilege and Government Secrecy on April 10, 11 and 12, 1973. These hearings, in effect, are a continuation of hearings on Executive Privilege: the Withholding of Information by the Executive held by the Subcommittee on Separation of Powers in July and August 1971.
We are writing to request that you personally testify at these hearings on April 12, 1973, concerning Congressional and public access to official information. The subject is dealt with in S. 858, introduced by Senator Fulbright, S.J. Res. 72, introduced by Senator Ervin and S. 1142, introduced by Senator Muskie. Copies of these bills are enclosed. We also request you to submit at least one day before your appearance copies of the written statement or statements you prepare for inclusion in the hearing record.
Rufus L. Edmisten, Chief Counsel and Staff Director of the Subcommittee on Separation of Powers 9225-4434), and Alfred Friendly, Jr., Counsel of the Subcommittee on Intergovernmental Relations (225-4718), will be pleased to furnish additional information.
The hearings will be in Room 2228 Dirksen Building, and will begin at 10 o'clock in the morning on April 12.
Sincerely,
SAM J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
Committee on the Judiciary.
EDMUND S. MUSKIE, Chairman,
Subcommittee on Intergovernmental Relations,
Committee on Government Operations.
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C.,
March 27, 1973.
Hon. EDMUND S. MUSKIE,
Chairman,
Subcommittee on Intergovernmental Relations,
Committee on Government Operations,
U.S. Senate,
Washington, D.C.
DEAR Mr. CHAIRMAN: This is in response to your request, made with Senator Ervin, that I testify before a joint session of your Subcommittees on "Executive Privilege and Government Secrecy."
We understand that at your request, the Department of Justice will present testimony during these hearings on the legal ramifications of the proposed legislation under consideration by your Subcommittees. It is most appropriate for that Department to present the views of the Administration, since the questions raised by the subjects of executive privilege and freedom of information are essentially legal in nature.
While I appreciate your affording me the opportunity to testify, I believe that there is nothing of real substance which I could add to the testimony you will receive from the Department of Justice. For this reason, I believe it would be more constructive for me to defer to that Department on this matter.
One comment, however, is appropriate. As you know, the President reaffirmed on March 12, 1973, his original statement of March 24, 1969, that "the policy of this Administration is to comply to the fullest possible with Congressional requests for information." The Office of Management and Budget will continue to be guided by this statement of policy in working with the Congress.
Sincerely,
Roy L. Ash,
Director.
MARCH 29,1973.
Hon. Roy L. Ash,
Director, Office of Management and Budget.
The White House,
Washington, D.C.
DEAR Mr. ASH: Your letter of March 27, declining our request that you personally testify on the issues of executive privilege and government secrecy is an unacceptable response to the joint invitation of the Subcommittee on Separation of Powers and the Subcommittee on Intergovernmental Relations. It is particularly surprising in view of the conversations between the Subcommittee staff and your liaison officer, Mr. Eberle, and the verbal assurance you personally gave Mr. Rufus Edmisten of your willingness to appear.
Your view that the questions of freedom of information are "essentially legal in nature" is in error. The scope of our hearings goes far beyond narrow legal arguments into the policies and practices which govern both the gathering and the dissemination of official information. The Office of Management and Budget, of course, plays a crucial role in determining such policies, those which affect Congressional access to information about the budget itself but also the procedures which control public access to all official information. We therefore regard your testimony as vital to our inquiry.
You will certainly recall your discussion with us February 7 on the subject of the availability of budgetary information to the Congress. At that time you cited the 1921 Budget and Accounting Act as giving you authority to withhold certain information from the Congress. The subsequent discussion of your position touched on arguments of executive privilege as well and concluded with a direct request from Senator Muskie that you return to explore the subject at the hearings on Executive Privilege and Government Secrecy.
In view of that exchange and in view of the important role your office plays in the flow of official information, we most forcefully reconfirm our invitation of March 16 and our request that you appear personally to testify. As Mr. Eberle informed us that an appearance by you April 11, instead of 12 as we originally suggested, presented no scheduling conflict, we await prompt confirmation of your intention to appear on that day.
Sincerely,
SAM J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
Committee on the Judiciary.
EDMUND S. MUSKIE, Chairman,
Subcommittee on Intergovernmental Relations,
Committee on Government Operations.
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C.,
April 4, 1973.
Hon. EDMUND S. MUSKIE,
Chairman, Subcommittee on Intergovernmental Relations,
Committee on Government Operations,
U.S. Senate,
Washington, D.C.
DEAR Mr. CHAIRMAN: I sincerely regret that you and Senator Ervin consider my response
to your request for my testimony before your Subcommittees unacceptable. To begin with.
there has obviously been am inadvertent misunderstanding regarding a commitment on my part. Mr. Eberle informs me that he did not intend to make any such commitment on my behalf, and my more general discussion with Mr. Edmisten did not include a specific commitment to appear at any particular hearing.
As you know, your original letter of invitation transmitted three bills: (1) S. 858, Senator Fulbright's bill dealing with the invocation of executive privilege and the furnishing of information to the Congress and the General Accounting Office by agencies of the Government; (2) S.J. Res. 72, Senator Ervin's resolution to require production of requested information to Congress by agency heads, officers and employees of the United States except where the President formally invokes executive privilege; and (3) S. 1142, Senator Muskie's bill to revise the Freedom of Information Act in a number of respects to include a new provision dealing with the furnishing of information by agencies to Congress. An examination of these bills, within the context of the stated purpose of the hearings to cover "Congressional and public access to official information" led me to conclude initially that I could not add to the testimony you will be receiving from the Attorney General.
With full appreciation for your renewed request for my appearance, these bills have been reexamined in light of your most recent letter. I have also studied my testimony of February 7 as reflected in the hearing record to which your letter referred. Having done so with considerable care, I have determined that I could add little to what is already a matter of record and nothing to what you will learn from the Attorney General, who is the Administration's principal authority and spokesman in the area of executive privilege and freedom of information. It is to the Department of Justice that we and all other agencies look for guidance in these areas. Our deferral to the Attorney General for purpose of your hearings is therefore both logical and appropriate, and certainly consistent with my testimony of February 7.
I will continue to honor Congressional requests for my appearance whenever possible, with due regard to the contribution I can make as a witness and consistent with other conflicting demands.
While I will, of course, continue to do my best to cooperate with you and the Congress in future requests for my appearance, as I have tried to do in the past, I must again respectfully decline your invitation in this instance.
Sincerely.
Roy L. Ash,
Director