to make an informed judgment on what Mr. Dean described as a matter vital to our national defense and foreign policy. It seemed to me that if the executive was free to conceal such data without Congress having any rights or recourse, the legislative branch was indeed an insignificant appendage of Government. Further, it was disturbing that we never would have even known of the existence of the information except for the incident of a newspaper article.

It was for these considerations that I decided to test the executive's power by instituting a court suit for release of the Cannikin papers. After discussions with several colleagues, we were able to obtain the services pro bono of the Honorable Ramsey Clark as our attorney. The suit was filed in U.S. District Court for the District of Columbia with 32 other Representatives joining me as co-plaintiffs. We sought to force release of the Cannikin papers under the Freedom of Information Act.

Ultimately, Mink v. EPA became the first Freedom of Information Act case to reach the Nation's highest court. I think this in itself says something about the effectiveness of the Act. But its neglect of use as an instrument for obtaining information from the executive branch was just as well, I eventually discovered. The Supreme Court's decision made a shambles of the Act and by convoluted reasoning turned it into a Suppression of Information Act.

I know the staff of the committee has available the complete text of the Supreme Court decision, so I shall not attempt to present a legal brief on it at this time. What we had sought as plaintiffs was for the courts to conduct an in-camera inspection of the Cannikin papers to determine whether the Government was correct in refusing to release them. The Government claimed the papers were immune from disclosure under two exemptions contained in the language of the Act. These exemptions protect the Government's right to conceal national defense information and material prepared as advice to an executive official. We contended that we sought only factual material, not advice or recommendations, and that the papers had not been properly classified as defense information by a specific Executive order as required by the Act. We urged that the court separate factual material from advice to the President and disclose it to us.

While the District court ruling was adverse, on appeal we won a Court of Appeals ruling that the lower court should examine the documents in-camera. At this point the Government appealed to the Supreme Court, which on March 6, 1972, agreed to hear the case. Two days after the court said it would hear the case, we won a victory of sorts when the executive branch voluntarily issued an Executive order revising its method of classifying national security documents. Henceforth, each document would be classified paragraph by paragraph to facilitate the disclosure of nonclassified portions should the need arise. Such a system of paragraph-by-paragraph disclosure was one of our objectives. Previously, by derivative classification, the Pentagon theoretically could attach the Manhattan telephone directory or a set of encyclopedias to a confidential memo and have the entire document instantly classified and withheld from the public.

Unfortunately, when the Supreme Court decision on the case was handed down on January 22, 1973, the Appeals Court was overruled on the vital issue of whether the courts had the right to inspect classified documents to determine whether information was being arbitrarily withheld. Amazingly, the majority of five justices determined that the national defense exemption of the Act does not permit compelled disclosure of the classified documents or even an incamera inspection to sift out "nonsecret components." This was a disastrous blow, since no court ever examined the Cannikin papers in making this ruling. As far as the courts knew, it might have been a telephone book. They only had the word of the party involved, the executive branch, that the papers were properly classified. The word was in the form of a memo by an executive branch official, who was never questioned or cross examined in a court. So the effect was to give the executive complete freedom, under the Freedom of Information Act, to withhold data on its whim supported solely by a memo.

We in Congress are now forced to revise the Act in accordance with this decision. I believe that a careful reading of the Act will fail to support the court's conclusion that the court could not act as ruled by the Court of Appeals, but nevertheless we are faced with the reality of the majority decision. I agree with Mr. Justice Douglas' dissenting comments that "Unless Federal courts can be trusted (to read secret documents in-camera) the executive will hold complete sway and by ipse dixit make even the time of day 'top secret'."

My recommendation to the joint committee, on the basis of Mink v. EPA, is to consider this ruling most carefully in any actions you may take on congressional access to information. It seems to me that Congress must amend the Freedom of Information Act, and I am cosponsoring legislation with Congressman Moorhead, for that purpose.

Lastly. I would caution that in order to be a reality, any congressional right to information must be lodged in each individual Member of Congress. It is fine in theory to speak of the power of Congress as an institution, but this did me little good in my court case. The case did not present a constitutional question of executive versus legislative branch as no executive privilege was invoked. All that was involved was the interpretation of a statute passed by Congress and signed by the President. In my research on this matter. I was told by the Library of Congress that it could find no instance where Congress as an institution had ever requested information under provisions of the Freedom of Information Act. Therefore, it will be up to each Member acting in his own right if our power of access is to be regained.

Until Congress acts, I believe that we have already lost our access to inforformation from the executive branch under the Freedom of Information Act.

Chairman METCALF. Now it is a great pleasure to welcome back to this committee a former member of the committee, former Congressman Curtis, of Missouri, who worked so hard, and has been so interested and concerned in congressional activity and congressional reform.

We certainly welcome you back to your committee and to our committee, Congressman Curtis. We are looking forward to your testimony.

We know that you have done a lot of work and a lot of study on this matter, and I'm personally delighted to have you with us.

Mr. CURTIS. Thank you very much. I'm pleased to have the opportunity, and I want to apologize for not having a prepared statement that you could follow. But I would like the privilege, if I may, to put a statement in later.

Chairman METCALF. We would be glad to have your statement. We're glad to have the summary today of your unprepared statement. Go right ahead.

Mr. CURTIS. Thank you very much.

STATEMENT OF THOMAS B. CURTIS, VICE PRESIDENT, AND GENERAL COUNSEL, ENCYCLOPAEDIA BRITANNICA, CHICAGO, ILL.

Mr. CURTIS. First. I want to commend the members of this committee who are responsible for continuing the existence of this committee, because that in itself is an achievement.

I have regretted that one of the recommendations that we had made in the previous committee to the Congress, namely, to establish a General Counsel Office for the Congress itself, had not been fully implemented, and yet in a way, this committee's existence is carrying out many of the objectives that we had in mind. and I'm quite familiar with the reports that are being filed and published from time to time by the committee in this area.

Chairman METCALF. Don't take these legal discussions that you've heard as a substitute for hiring a counsel for the committee.

Mr. CURTIS. No. But at least what you're doing is a very important thing. You are calling attention to one of the most neglected areas in the practice of law in our society, namely, the legislative practice of law.

I am happy to say that I now am in a position maybe where I will be able to implement this long dream of mine, that we do structure the study of law in our law schools, so that it is not just concentrated on what could be called the judicial practice of law, that there is, as anyone who has served in the Congress, as you all have and I have, knows there is a very important area which can be properly called legislative practice of law.

Granted, when it is not developed as a discipline and taught in this fashion, there is a tendency to think of the legislative process as wheeling and dealing, the Mao-Machiavellian school of politics, as opposed to what I know anyone who has served in the Congress realizes it really is a study and a deliberating body in its marshaling of facts and for arguments properly and fairly presented before the proper forum. The position I am now in, in the American Bar Association, which has just recently created a seven-man committee to take a look at the teaching of law throughout the country, and I am on that committee, and this is one of the areas I hope that we will be able to point up, so that in the future the curriculum of our law schools pays some attention to this important area.

Just as an aside, there is also the very important area of the practice of executive law. Incidentally, both of these fields are taken care of, by and large, by people who are lawyers. Obviously, the better ones tend to be lawyers, because they have been trained in marshaling facts.

So I have found, being in private practice now, in the private sector, and general counsel for the Encyclopaedia Britannica Co., that there is a very important area of executive law, which is frequently referred to as "influence peddling."

But again, it honestly isn't. It's a question of locating the proper forum, and then marshaling arguments and facts, and so forth.

The Administrative Procedures Act is so essential that it be adopted by all executive agencies, so this kind of law can be practiced on an increasingly rational basis.

So we come to the situation

Chairman METCALF. Then we have Mr. Nader, who is operating in the whole area of executive and administrative law.

Mr. CURTIS. He indeed is, and this is where we need, I think, to start a discipline. It's a difficult area. It is not easy. And I have found, and I was pleased-as I assume my predecessors here who were attorneys or law teachers, possibly are beginning to look into this area—and yet I have sat in on symposiums while I was in the Congress, and after, with lawyers, and so forth, and find top teachers of law, as well as practitioners, almost in complete ignorance of the fact that there is such a thing as legislative law according to precedent.

Take this very issue that I was listening to here about contempt, the very misunderstanding that congressional contempt is criminal contempt. It isn't criminal at all. It isn't punishment. It has to do with the orderly procedures of conducting legislative hearings and legislative business.

So this, in itself, has considerable precedence, and those of us who have tried to research congressional precedents are familiar with Hinds' and Cannon's precedents.

So neglected is this area-even by ourselves, if I may still join and be a member of the fraternity-that we have not made an issue, as we

STATEMENT OF PATSY T. MINK, MEMBER OF CONGRESS FROM HAWAII

Chairman Metcalf, Vice Chairman Brooks, and distinguished members of the joint committee. I am privileged to appear before you today.

I am happy that you chose as the subject of your hearings the broad area of the exchange of information between the American people and their elected representatives in Congress. This is certainly a multifaceted subject. It includes the right of Congress to have access to information, as well as the right of Members of Congress to inform the public about matters of concern. Further, it involves the rights of those who transmit information to Congress. If our sources of information are not protected, we will not receive information—and the American people then cannot receive it from us.

A subject of interest these days is the newsman's shield-meaning that some in the press are asking Congress for a law to protect the confidentiality of their sources. What few in the press realize is that Congress is in a poor position to protect somebody else's privilege when our own privilege to obtain information is under attack.

I am greatly disturbed by the recent Supreme Court decisions in United States v. Brewster and Gravel v. United States. In these cases, the court added unprecedented restrictions on the right of Members of Congress to obtain or disseminate information without being subject to prosecution by the Executive Branch. I know you will explore both cases in depth, and hope you can develop new legislative approaches to preserve the integrity of the article I requirement that Members of Congress "shall not be questioned in any other place."

My testimony today concerns a court case I was involved in, but in the area of obtaining information from the government. This case, known as “Mink v. EPA" was recently decided by the Supreme Court in a shattering blow to the Freedom of Information Act and Congress' right to know.

Briefly, the history of the case is that it arose from my efforts as a Member of Congress to protect the people of my home State of Hawaii from the possible adverse effects of an immense thermonuclear explosion the government planned to detonate in the Aleutian Islands off Alaska. This was back in 1971. When I learned of plans for the test, I was very apprehensive. The Aleutian Islands are at the crux of an immense earth fault running all along the Pacific coast through California, where it is known as the San Andreas Fault. The Aleutians are known as one of the earth's most seismically unstable regions. Many earthquakes have occurred there from natural causes. On past occasions, Aleutian earthquakes have launched large waves which travel over the surface of the ocean for hundreds or thousands of miles. Some of these have struck Hawaii's coast, with disastrous effects in terms of loss of life and property. There was no way of knowing whether a nuclear explosion of the magnitude planned for Amchitka Island might touch off a new earthquake and launch such a wave at Hawaii. From what little information I could gather, I knew that at least some scientists would not foreclose such a possibility.

Accordingly, I made efforts to block the Aleutian test by offering amendments to the authorization and later the appropriation bills involved. Similar efforts were made in the Senate, but without success. Those favoring the test challenged us to produce reliable evidence of the danger.

Curiously, 3 days before the House vote on the appropriation bill carrying some $21 million for the "Cannikin" test, an article appeared in a Washington, D.C. newspaper, that five Government agencies opposed the test. The article disclosed in general terms the existence of a secret report to the President in which serious doubts were raised to the test. Included were the two agencies charged with protecting the environment, the Council on Environmental Quality and Environmental Protection Agency.

Immediately, I made every effort to obtain this information, by contacting the five Federal agencies involved. They refused. Then I sent a wire to the President requesting the "Cannikin Papers." Nothing was produced and my amendment against test funds was defeated on the House floor. Several days later I received a letter of reply from Mr. John Dean, counsel to the President. At that time, Mr. Dean's name was hardly a household word, but I note that recently he has achieved more prominence. Mr. Dean refused to disclose the information on which the news article was based, because "These recommendations were prepared for the advice of the President and involve highly sensitive matter that is vital to our national defense and foreign policy."

In this matter, the executive branch refused to provide Congress with the information which it possessed, and which was necessary for Congress to have

to make an informed judgment on what Mr. Dean described as a matter vital to our national defense and foreign policy. It seemed to me that if the executive was free to conceal such data without Congress having any rights or recourse, the legislative branch was indeed an insignificant appendage of Government. Further, it was disturbing that we never would have even known of the existence of the information except for the incident of a newspaper article.

It was for these considerations that I decided to test the executive's power by instituting a court suit for release of the Cannikin papers. After discussions with several colleagues, we were able to obtain the services pro bono of the Honorable Ramsey Clark as our attorney. The suit was filed in U.S. District Court for the District of Columbia with 32 other Representatives joining me as co-plaintiffs. We sought to force release of the Cannikin papers under the Freedom of Information Act.

Ultimately, Mink v. EPA became the first Freedom of Information Act case to reach the Nation's highest court. I think this in itself says something about the effectiveness of the Act. But its neglect of use as an instrument for obtaining information from the executive branch was just as well, I eventually discovered. The Supreme Court's decision made a shambles of the Act and by convoluted reasoning turned it into a Suppression of Information Act.

I know the staff of the committee has available the complete text of the Supreme Court decision, so I shall not attempt to present a legal brief on it at this time. What we had sought as plaintiffs was for the courts to conduct an in-camera inspection of the Cannikin papers to determine whether the Government was correct in refusing to release them. The Government claimed the papers were immune from disclosure under two exemptions contained in the language of the Act. These exemptions protect the Government's right to conceal national defense information and material prepared as advice to an executive official. We contended that we sought only factual material, not advice or recommendations, and that the papers had not been properly classified as defense information by a specific Executive order as required by the Act. We urged that the court separate factual material from advice to the President and disclose it to us.

While the District court ruling was adverse, on appeal we won a Court of Appeals ruling that the lower court should examine the documents in-camera. At this point the Government appealed to the Supreme Court, which on March 6, 1972, agreed to hear the case. Two days after the court said it would hear the case, we won a victory of sorts when the executive branch voluntarily issued an Executive order revising its method of classifying national security documents. Henceforth, each document would be classified paragraph by paragraph to facilitate the disclosure of nonclassified portions should the need arise. Such a system of paragraph-by-paragraph disclosure was one of our objectives. Previously, by derivative classification, the Pentagon theoretically could attach the Manhattan telephone directory or a set of encyclopedias to a confidential memo and have the entire document instantly classified and withheld from the public.

Unfortunately, when the Supreme Court decision on the case was handed down on January 22, 1973, the Appeals Court was overruled on the vital issue of whether the courts had the right to inspect classified documents to determine whether information was being arbitrarily withheld. Amazingly, the majority of five justices determined that the national defense exemption of the Act does not permit compelled disclosure of the classified documents or even an incamera inspection to sift out "nonsecret components." This was a disastrous blow, since no court ever examined the Cannikin papers in making this ruling. As far as the courts knew, it might have been a telephone book. They only had the word of the party involved, the executive branch, that the papers were properly classified. The word was in the form of a memo by an executive branch official, who was never questioned or cross examined in a court. So the effect was to give the executive complete freedom, under the Freedom of Information Act, to withhold data on its whim supported solely by a memo.

We in Congress are now forced to revise the Act in accordance with this decision. I believe that a careful reading of the Act will fail to support the court's conclusion that the court could not act as ruled by the Court of Appeals, but nevertheless we are faced with the reality of the majority decision. I agree with Mr. Justice Douglas' dissenting comments that "Unless Federal courts can be trusted (to read secret documents in-camera) the executive will hold complete sway and by ipse dixit make even the time of day 'top

secret'."