to happen in the future, I think that Congress should making amendments to the Communication Act of 1934.

Second, the Congress must enact a new statute governing classified documents. This law must sharply limit that which should be labeled secret, and it must provide for automatic declassification and congressional oversight. If a matter should remain secret after a stated period, there should be an affirmative, positive finding as to why continued secrecy is necessary. Sanctions should be imposed for improper classification by the Executive, and Congress should explicitly reserve the right to make public material improperly classified by the executive contrary to statute when classification is not a matter of national security and is simply to avoid governmental embarrassment.

I might say that the witnesses we had before our committee, estimated the amount of improperly classified material, but one witness stated that it was as high as 90 percent. I suspect there are some of General Washington's papers still there, and still classified. Interestingly enough, Executive Order No. 10501 does provide for some declassification, yet I can find no Executive willing to testify that there was in practice any meaningful or any large scale declassification going on. The witnesses said that when in doubt you classify it, and if you are still in doubt, classify it higher. When I was in the Department of State it was a standing joke, that if you really wanted it to be well read, make it top secret, and to protect it, give it a very low classification.

The truth of the matter is that there has been massive overclassification, and the fundamental factor is that the Government withheld from Congress information which it needs to carry on its functions properly. I have seen a fair amount of classified material, and in my judgment, most of it should never have been classified, and that which should have, should have been protected. We have to look at this as a very definite oversight, but every executive seems to feel that they have an unwritten right to dictate to the Congress on classified material, as to whether or not it should be released or made available to a Congressional committee. But I am not overly impressed with those arguments, and I think we have the right to declassify that which the executive branch has classified improperly.

Further, the Congress must come to grips with executive privilege. I do not believe the President has an absolute right or an overall inrerent right to deny information from the Congress, and thereby from the press and the American people. As the Supreme Court indicated in Reynolds v. United States, 345, U.S. 1(1953), it is the courts, and not the Executive, which should properly decide controversies between the Congress and the executive branch over the withholding of information. I would add most emphatically that the executive has no right whatsoever, as I mentioned earlier, to deny Congress information which is essential to the latter's performance of its constitutional duties. The executive does not have the right to make war on its own, it does not have the right to invade Cambodia or some other area of the world, or deny any documents to the Congress. And I believe what we must seek with the executive

is an accommodation, and make it abundantly clear that these decisions do not lie totally with the executive branch. If we are to have accountability, then the Congress has the right to look at any classification.

If an executive is no longer accountable to the Congress of the American people, then it seems to me that we are in a very dangerous situation, one which the American people would not tolerate. I am very concerned that any major action by the executive, in the area of war and peace, must be as a result of constitutional decisions made by the Congress, prior to said action. I cannot imagine President Eisenhower losing sight of this, for the very simple reason that he had overriding respect for the Constitution and the balance of power.

The Freedom of Information Act, which became law 4 years ago, as you know Mr. Chairman, has been a significant vehicle for the American people to obtain information from the executive branch. Yet experience with its implementation suggests that it would be tightened in two respects. The types of information now permitted to be withheld must be sharply limited, and the time permitted for Government response to a court suit must be reduced from the present 60 days to 20 days so that information can be furnished as a matter of high priority. I might say again that Congressman John Moss and I filed suit under this act on June 23rd to compel the Government to make public the Pentagon Papers. In its preliminary answer to our complaint, the Government denied that it had a legal obligation to furnish the documents. We do not consider yesterday's publication by the Government of a portion of the documents an adequate response to our suit, and we will continue to demand in the court that the Government release all the documents to the public or justify its refusal to release them. I would hope that the press would use the Freedom of Information Act more and more as a means of serving the people's right to know.

Our democracy does not work well in secret. The principle of accountability is fundamental to our system, and both the Congress and the people must be informed for accountability to be meaningful. The historic, and indeed constitutional, role of the press in holding government accountable to the people must never be allowed to diminish. To the extent that the American people permit encroachments upon the freedom of the press, we will have failed really to understand democracy, and I believe that Congress, working with the press, can restore that balance.

So again, if I may, permit me to compliment you and your committee on what you are doing. Failure in this area may lead to nothing less than the failure of our country.

Senator ERVIN. I want to commend you on the excellence of your statement, it certainly reflects the fact that you have broad and profound experience in this field. Your committee has conducted most illuminating hearings on this subject, and you have had some of the most knowledgeable men before you.

I agree completely with you that the most perilous of conditions. have been brought on the press, and that there should be no prior restraints, except in the most narrow instances where the publication would pose a great threat to the national security. I also agree with

you that there should be some restraint on the dissemination of information concerning negotiations with foreign nations. Some foreign nations would be reluctant to discuss things of importance in open society like we do.

Do you not agree with the position that if we would have had publications concerning the Bay of Pigs, that that situation would never have occurred?

Mr. REID. That is my conviction, and I have 20-20 hindsight. It would have been far better if we had had publication on the Bay of Pigs. And indeed, there are many others, because I cannot believe that in the long agony of the Vietnam war, that the number of actions taken or that our involvement would become so deep had the facts not been hidden from the American people. I might add further that I question whether some members of the House and Senate would not have voted the Gulf of Tonkin resolution if we would have had the documents that now exist. In effect, the Congress without being told the truth passed the resolution, but if we had had all the facts, it would have been different.

Senator ERVIN. I think it is very unfortunate in the long run that there is so much secrecy about the Vietnam war. Generally, I think the members of the Senate and the House are divided into two groups, one group is calling for a halt in the war, and the other is calling for a military victory. Personally, I think we could have won it 5 years ago with much less loss of life. One group of Congressmen have the very strong feeling that we should not pull out of the war at all. In effect, those issues remain unresolved-but if some form of policy would have been established, we probably could have avoided most of the disastrous consequences which surround our involvement in Vietnam.

Mr. REID. I agree with you, but what disturbs me particularly was apparent dereliction in office. Because there is a lack of policy, we don't know how high this went. Some subordinates developed a policy, and discussed the actions of the major escalation I do not think the executive has that right, I think the executive must inform the Congress. Here was a case where I think relations broke down between Congress and the executive, and the excutive was not sufficiently aware of the entire situation.

Senator ERVIN. I would certainly agree. I think what the Executive has inaugurated with regard to security classification was never intended to justify such classifications. I believe that Executive order was issued in good faith for the purpose of classifying documents which pertain to national security, but the scope of that order is growing and growing. The executive branch has gone to great extremes, surpassing the intent of the order, as was brought out before your committee when one witness expressed the opinion 85 or 95 percent of all classified documents need not be classified at all.

Mr. REID. That is correct, it was more than just a little percentage. Senator ERVIN. The fact is that there is no uniformity among the different departments. Some years ago, I requested a specific report on American imports from Japan from the State Department as well as the Department of Commerce. Both gave me a copy of the report. The copy from the Department of Commerce was not classi

fied in any respect, while the Department of State copy was classified and it was turned over to me on the condition that I wouldn't make any part of it public, under any circumstances.

Mr. REID. In my judgment, they have no authority to send that stipulation with the report. I think we have to make it plain in one or two letters that Congress has every right to these reports, and that they have no right to say how we should handle it.

Senator ERVIN. The classification of the report I received sometime ago, didn't have anything to do with protecting national security, but it did conceal a lot of individual and official policies of the executive department.

The first amendment as I see it has certain explicit freedoms, freedom of the press, freedom of speech, freedom of religion, and it seems to me that in your statement, and I agree with this, that it is the right of the people to know, and that is really the purpose of the first amendment insofar as government is concerned.

Mr. REID. I think so, and it was the late Justice Black who said that the first amendment was to serve the governed, not the governor, and they have no power to censor, rather the press would remain forever free to censor the Government. We have had some come in the Government fairly recently who feel patriotic, and that censorship can become binding, and the Government could say what the American people should or should not know, to prevent the truth from getting to the American people. I think the executive has no right to do this and I think our Founding Fathers knew what they were doing.

Senator ERVIN. Your statement correctly emphasizes the fact that there is just as great a need for prohibition upon censorship of the broadcasting media as there is with respect to the printed word.

Mr. REID. I think that radio and TV need precisely the same protection, and I think it is terribly important that this be given some consideration. I also think that there are some in the administration who think they can make a distinction between radio and TV and the press. I cannot make any distinction between these modes of communication. Therefore, I was very disturbed when I saw it deteriorating that way.

Senator ERVIN. Don't you agree that if there are prior restraints, a very serious threat to the freedom of the press would exist even though the Government may never take action. The effect would be that the people in the newspaper media would be fearful that they would be prosecuted by the Government for publishing information and for that reason they would be very careful not to publish things that the Government does not like, thus avoiding a confrontation with the Government.

Mr. REID. I think that is exactly correct, and I think there are very clear dangers that you touched on, but I don't think they would be afraid of a confrontation with the Government. The interesting thing to me when I served a little on the press, was that the Executive in the past and in the present administration, are very free to leak confidential and top secret information when it will serve their purpose, but the minute there is something not put their way, it is considered almost treason. You cannot have a

double standard of this kind, and I would like to see the time when the administration would say that we should not have any fear of prior restraint. And until such time, the press will be very careful with how they deal with material.

The newspaper was established to present a clear picture for the American public, and yet if a reporter is subpenaed before the grand jury and does not testify, the newspaper is faced with a shutdown. The other danger that I was concerned about is what are the courts to think? Can the courts issue temporary restraining orders while they consider these matters? If so, then for however long it may take them to make a decision, you have lost the right that we have had for over 200 years. It puts the courts in a very difficult situation.

Senator ERVIN. Years ago, the Attorney General of the United States testified before a committee I was serving on and gave us his interpretation of some FBI data to justify his conclusions. When I asked him to produce the FBI document he cited, he said that he couldn't because it was "confidential." I said that I was not going to accept his interpretation of those documents as being correct, and since he had used them for his purposes, I insist that he give them to the committee so that we could make an objective determination. I was never able to establish whether the information that the Attorney General had put in the record was correct. So the use of confidential material for the purpose of the

Mr. REID. Mr. Chairman, I would look with favor if the Congress would subpena some members of the executive branch, be they in the cabinet or in the White House, and take that issue to court to see in the judgment of the courts whether it was proper or improper to withhold information. I think if we did that once or twice, it would serve the purpose, and the Executive would not have a lively sense of doing this every time you turn around.

Senator ERVIN. We had the testimony of a very knowledgeable witness sometime ago who pointed out that in the trial of Aaron Burr Chief Justice Marshall stated that the courts could even subpena the President of the United States. If the courts can, I think a congressional committee could.

Mr. REID. I would think so, and frankly to the extent of alarm, I am concerned about this. Certainly there would be enough reasons to be in this posture. They have the power; but they don't execute it, I would hate to see a flat out confrontation to get accommodation. But if it comes to that, we have the power. But we fail to execute it.

Senator ERVIN. I have just one other observation to make. Yesterday, Mr. Norman Isaacs, who has profound experience as a publisher as well as an editor, and who is now a professor of journalism at Columbia University, testified that we should have an absolute freedom from all prior restraints. He took the position that the press should be responsible to hold from publication information which affects national security. I have been trying to find evidence. which would indicate that the press has not always been responsible in this way. There is only one occasion of which I am aware. That s when a Chicago newspaper published that the Japanese code had been broken. In your study of this subject, have you found any in