process and has exercised, to a limited degree, only the role of overseer. The Legislature has, in times of emergency, set aside the usual procedures of study and debate so necessary to sound lawmaking. Thus, to be aware of how Executive decrees are made during emergencies is to gain some understanding of the process of emergency decisionmaking itself.

The legal processes followed in Executive decisionmaking is an area little understood. Virtually no binding or consistent standards exist to prescribe the legal form or manner a particular type of Executive decision must take. Although by statute, "Executive orders and proclamations" must be published, there are no standards or requirements under which particular Executive decisions must be designated as either Executive orders or proclamations. In addition, there is the problem that in the absence of statutory guidelines there has been exercised by the Executive an almost unlimited discretion by the Executive to classify as "secret" whatever decisions it wishes to keep from the public eye. Even those decisions which have been published, are of such an uncodified nature that the legal status of Executive directives cannot be determined with any certainty.

OPENING STATEMENT BY SENATOR MATHIAS, COCHAIRMAN

Senator MATHIAS. Although inadequate, the Federal Register Act of 1935 continues to provide the most significant regulations for the issuance of Executive decisions or orders. It is supplemented by a series of Executive orders by which the Executive prescribes for itself additional procedures to be observed. Both the statutory and the selfimposed regulations, however, fail to diminish significantly the arbitrariness of the system, and the Executive's own procedures appear to be followed only insofar as it is convenient to the Executive's purposes.

The Federal Register Act-44 U.S.C. 1505-provides for the publication of:

1. Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof;

2. Documents or classes of documents that the President may determine from time to time have general applicability and legal effect; and,

3. Documents or classes of documents that may be required so to be published by act of Congress.

The categories enumerated herein are not all inclusive. First of all, there is again the problem of terminology. If a document is not specifically designated as an "Executive order" or "Presidential proclamation," the decision of whether or not it will be published is left to the discretion of the President. If he wishes a document to have "general applicability and legal effect," he will presumably have it published. If, however, the order is directed only to an official of an agency and does not purport to regulate directly the conduct of private citizens, there is, as the law now stands, no legal necessity for its publication. Most Executive directives fall into this category.

Although most Executive directives pertain exclusively to intrabureaucratic operations, many others have great consequence for the Government, the Nation, and individuals as well. One need only cite the decision to secretly bomb Cambodia or the decisionmaking which governed much of the undeclared war in Southeast Asia to illustrate this point most vividly. Although clause 3 of Section 1505 permits Congress to designate classes of documents for publication, Congress has never addressed itself directly to this question in the broad sense that we hope to consider it here.

A lengthy study of Executive orders made in 1957 by the House Committee on Government Operations concluded that "a precise and uniformly applicable differentiation between Executive orders and proclamations is impossible." The situation is not any clearer today. In response to informal inquiries by the Senate Special Committee on the Termination of the National Emergency, those responsible for the procedures relating to Executive orders, at both the Justice Department and the Federal Register, acknowledged their inability to define the differences between Executive orders and Presidential proclamations, and emphasized the serious inconsistencies which pervade their usage.

EXECUTIVE FOLLOWS ESTABLISHED PROCEDURES WHEN CONVENIENT

Executive Order 11030, as amended by Executive Order 11354,1 sets further standards for the "preparation, presentation, filing, and publication" of Executive orders and proclamations. Like the statutory regulations, these self-imposed Executive standards fail to prescribe criteria for the subject matter to be published as an Executive order or as a proclamation. Section 2 of Executive Order 11030 does establish a procedure for the intraexecutive clearance procedures of proposed Executive orders and proclamations. Such a proposal must be sent first to the Director of the Office of Management and Budget, and then to the Attorney General. Only after their approval is obtained may an Executive order be forwarded to the President for official sanction and subsequent publication.

The Special Committee's study shows that this procedure is usually followed in routine matters. It has not, however, been universally complied with. The Justice Department acknowledges that it has received notice of some important orders after their promulgation. In some cases, the reasons why the regular procedures have not been followed are rationalized as being required by the exigencies of an "emergency"-bypassing regular clearance procedures appears to occur frequently in times of national emergency. If this is so, it may well be the rule in times of national emergency-not the exception. The point that does not escape notice is that the executive branch of successive administrations have followed established procedures only when convenient to do so.

If the format and procedures for issuing Executive orders and proclamations appears inadequate and inconsistent, the situation regarding other Executive directives is even more so-bordering on the chaotic. The Code of Federal Regulations indicates that in issuing

1 See Appendix, p. 770.

their decisions and commands, Presidents have relied for their authority on letters, memorandums, directives, notices, reorganization plans, and administrative designation and military orders. The decision whether to publish an Executive decision is clearly a result of the President's own discretion rather than any prescription of law. In recent years, the national security action memorandums of Presidents Kennedy and Johnson, and the national security action directives of President Nixon, represent a new method of promulgating decisions— these in areas of the gravest importance. Such decisions are not specifically required by law to be published in any register even in a classified form; none have legislatively prescribed formats or procedures; few of these vital Executive decisions are revealed to Congress or the public except under irregular, arbitrary, or accidental circumstances. The public record reveals very little about how such commands are issued. What is most disturbing is the lack of access to any authoritative records in these matters. In short, there is no formal accountability for the most crucial Executive decisions affecting the lives of citizens and the freedom of individuals and institutions.

The problem is exacerbated by the classification of sensitive or important Executive decisions. While no one would wish to prevent truly sensitive documents from being classified for reasonable cause, the absolute discretion given to the Executive in this area has led to abuse-such as the decision to bomb Cambodia in 1969 and 1970, and to withhold from Congress any information that such acts were being undertaken. It has permitted and encouraged inclusion in this category documents in no way connected with essential national security. Moreover, not only are their contents kept secret, but even their general extent is unascertainable. On the basis of the handling of past Presidential papers, many of these documents will, in one manner or another, eventually be declassified. Until recently, classified Executive orders were inserted chronologically in the prescribed serialization of the Federal Register, by use of a letter suffix after the number of the last preceding order; for example, Executive Order 7784-A. Even this practice has, by and large, been discontinued, and the usefulness of obtaining, long after the fact, knowledge of the existence of classified Executive orders is confined primarily to the next generation of historians.

EXECUTIVE ROLE EXPANDS BY UNACCOUNTABILITY

Through the use of classified procedures, by failure to establish substantive criteria for publication, and by capricious disregard for existing standards, the legal record of Executive decisionmaking has thus continued to be closed from the light of public or congressional scrutiny. The legality of the operations of Government has in large measure been unexamined. And the situation is growing worse. The number of formal Executive orders and proclamations has, in recent years, declined from many hundreds to a current level of about 70 annually. Since it is certain that the Executive is issuing more and more decisions rather than less and less, many of which are of the greatest importance, it can only be surmised that such commands continue to be issued in irregular form and in ways unaccountable to

Congress and the people. As the role of the Executive in Government continues to expand, this must be cause for the gravest concern.

In conclusion, it is important to emphasize that we know very little about this vital area of Presidential orders and to what degree they are made accountable to the public. It is for this reason that the views of our two witnesses are of great importance. Their long experience in both the theory and the practice of law covering the legislative, executive, and judicial branches will be of the greatest value to the Special Committee in its consideration of these important constitutional questions.

General Richardson, perhaps we might ask you to make a brief opening statement. Then General Griswold might want to make an opening statement, after which the Special Committee can address questions.

Mr. RICHARDSON. Thank you very much, Mr. Chairman. Chairman Church, Senator Hart, and members of the Special Senate Committee on the Termination of the National Emergency. It gave me a slightly odd feeling right now to hear you address my former dean and teacher as "general," and me as "general" in a hearing dealing with emergency powers. I thought, perhaps, we might have been mobilized under some emergency order.

STATEMENT OF ELLIOT L. RICHARDSON, FORMER ATTORNEY

GENERAL OF THE UNITED STATES

Mr. RICHARDSON. First, let me say it seems to me the role of this Special Committee is an extremely constructive and valuable one. The issues that you have touched on go to the heart of the accountability of government to the American people, and at a time when we face a crisis of confidence in the integrity of government, it is clearly all the more important that government should not itself contribute to the erosion of confidence through reliance on the invocation of powers under statutes addressed to an entirely different set of situations than exists at the present. The consequences can only be further to erode public belief in the role of law and to perpetuate fictions which tend to bring into discredit the processes of government generally.

We need, and through this Special Committee's initiative I hope we will achieve, an updating of our vocabulary so as to conform to the situations we actually face now, to continue in effect laws addressed to the normal day-to-day conduct of government in the absence of an emergency, and, at the same time, to make appropriate provision for the exercise of extraordinary powers of government in a situation of genuine emergency.

I have had the privilege of talking with each of the co-chairmen and members of their staffs from time to time. I am not sure whether we first talked about the work of this committee when I was at the Department of HEW, I know we did at Defense and again at the Justice Department, and I hope that the committee feels that those departments the departments in which I served and which were, particularly in Defense, exercising various emergency powers under old authorities have cooperated with this committee in the first essential step it has taken, namely that of the compilation of all of the statutory authorities.

Senator MATHIAS. If I could interrupt you at this point, I think it might be appropriate to acknowledge the debt the committee owes to the Department of Defense for the assistance which we obtained and in which we discussed when you were Secretary of Defense using the Air Force computer to attempt to identify all of the emergency statutes which were very difficult to locate and to codify in any form, and we are grateful to the Department of Justice and particularly to Mr. Jack Goldklang of the Department who was loaned to us and who made a significant contribution to the work of the committee.

Mr. RICHARDSON. I am glad to hear that and I certainly feel that the approach this committee has taken in the bipartisanship of its own composition as well as in its work with the executive branch is a model for an approach to a problem of this kind.

ALSO NEED COOPERATION FROM EXECUTIVE FOR SOLUTION

Senator CHURCH. I agree fully with what Senator Mathias has said concerning the cooperation we have received, so far, from the executive branch in identifying the problem. I hope that we will get the same measure of cooperation when it comes to the solution of the problem, but that remains to be seen.

Mr. RICHARDSON. I can only say that I share your hope, Senator Church.

It seems to me, then, that having compiled most of the statutory provisions some 470 separate sections of the United States Code, as I understand it which in some way delegate extraordinary powers to the President in a time of war or national emergency, the next step must be to determine which of these statutory authorities ought to be continued as part of the normal array of governmental powers that are appropriately exercised in the absence of any genuine emergency. My understanding is that the executive branch has been cooperating with this committee in identifying those provisions of law, namely the ones that they think ought to be continued and should not depend for their exercise upon the declaration of a state of emergency. This, of course, is an elaborate and time-consuming job and one that should be reflected in a rather bulky piece of legislation which expressly continues these authorities by making them part of the basic United States Code.

Senator CHURCH. May I just interrupt briefly there to say that, based upon our hearings to date, the procedure that seems most feasible would be one whereby, first, Congress would terminate the existing declared national emergencies there are four of them now under which we have been living, the earliest dating back to 1933 when Franklin Roosevelt declared it to cope with the great depression. We have tentatively concluded that if Congress were to formally terminate the present emergencies as of a date certain, and then give the Executive a reasonable opportunity to come forward to Congress and to specify those particular powers that in the judgment of the Executive ought to be written into permanent law, then Congress could act upon those recommendations. We believe that this would be the most orderly way to try to put together this immense mosaic or jigsaw puzzle or whatever you want to call it, rather than to undertake to write an omnibus bill at one time. How does that procedure strike you?