Page McNamara, Hon. Robert S., Secretary of Defense Mott, Rear Adm. William C., U.S. Navy, Judge Advocate General of the 507 571 Overall, Comdr. S. R., Jr., U.S. Navy, special assistant to the Chief of 673 880 Rasmessen, Col. Edward B., U.S. Air Force.. 646 Smith, Lt. Col. F. A., Jr., Technical and Industrial Liaison Office, Office of 369 The special subcommittee met, pursuant to notice, at 10:15 a.m., in room 318, Old Senate Office Building. Present: Senators Stennis (chairman), Thurmond, Bartlett, Symington, Jackson, Saltonstall, Smith, and Case. Also present: Cyrus R. Vance, General Counsel, Department of Defense; special subcommittee staff: James T. Kendall, chief counsel. Senator STENNIS. The subcommittee will come to order, please. Mr. Sylvester, you are the first witness this morning. If you will, please stand and be sworn. Do you solemnly swear that your testimony before this subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. SYLVESTER. I do, Mr. Chairman. TESTIMONY OF ARTHUR SYLVESTER, ASSISTANT SECRETARY OF DEFENSE (PUBLIC AFFAIRS) M'NAMARA LETTER CONCERNING IDENTITY OF REVIEWERS Senator STENNIS. Mr. Sylvester, we are glad to have you here, but if you will excuse us just a minute, I am going to read into the record a letter that I have just received from Secretary McNamara to the subcommittee regarding the question that came out yesterday when the witness replied that he was instructed by Secretary McNamara not to answer questions concerning the identity of a particular reviewer who had passed upon a certain speech. This letter is dated February 1, 1962. As I say, it is from Secretary McNamara himself: DEAR MR. CHAIRMAN: At the Subcommittee hearing yesterday, Mr. Willis Lawrence declined, on my instructions, to answer a question put to him by Senator Thurmond as to the name of the individual within the Department who had reviewed a particular speech. When Mr. Lawrence based his refusal on my instructions, you raised the question as to whether or not the doctrine of Executive Privilege was being invoked. In instructing Mr. Lawrence as I did I was not motivated by any desire to invoke a constitutional principle. My reasons were based simply upon my firm conviction that this refusal would in no way inhibit the investigation of your Subcommittee but was at the same time absolutely essential to maintain sound principles of management of an Executive Department by not thrusting upon subordinate officials burdens which are properly chargeable to me and my senior associates. As I stated in my memorandum, I do not believe that it is appropriate that specific individuals shall be charged with responsibility for specific deletions from speeches and articles when those individuals are acting under policies for which my senior associates and I must assume responsibility. Consideration of the kind just set forth must, of course, in all instances be viewed against the proper needs of Congress to know the facts relevant to its inquiries. In the investigation of your Subcommittee we have endeavored to give you the fullest cooperation in providing all relevant data. We have made available to the Committee the 1,500 speeches which were requested. We have responded fully to all the numerous requests of the Committee for additional materials. We have furnished the names of the 14 individual reviewers, 11 of whom were military officers, together with background information about them. We have made available both in Washington and in the field all witnesses requested for examinations by the members of the Committee Staff and permitted all such witnesses to be examined outside the presence of any departmental representative. We will continue to extend to the Committee maximum cooperation. I do not, at this time, perceive the reasons which underlie the request to identify particular reviewers with particular speeches or why such an identification would in any measure promote the purpose of the inquiry. The only reason which has so far been suggested is that this would aid in the determination of whether or not changes in speeches were the result of individual opinion or of existing policies. Verbatim copies of all speeches, showing the deletions made and the comments thereon have been made available to the Committee. Where the reasons for the changes have been noted we have made those reasons available to the Committee. The Committee also has the policy guidelines and will have ample testimony in explanation of those guidelines. It may be that it will be the Committee's judgment that the changes made in some instances were not a correct application of the policies. If so, that is my responsibility and I accept it fully. I do not see how finding that a particular military officer in a particular case exercised a mistaken judgment would advance the purposes of the inquiry. I have endeavored to think of other reasons why the names should be important to the inquiry. I am confident that no consideration of a security nature with respect to any of the reviewers will be raised, but should any such questions be raised I would be happy to discuss the matter in detail with you personally and provide you with all relevant information. I have been informed by my legal staff, and by the Department of Justice, that the facts and circumstances above would justify, as a matter of law, invocation of the doctrine of Executive Privilege. As you know, this administration has not yet invoked the doctrine and is most loath to do so. It is our intention to make the fullest information possible available to Congress at all times in aid of its legislative purpose. It is our view that impasses between the executive and legislative branches should be avoided by resolving questions of availability of evidence through mutual cooperation with the Committees of Congress. It is in this spirit that our staffs have cooperated in making available the information desired by the Committee. For these reasons I would be most unhappy to be compelled to invoke formally the Privilege in this inquiry. I shall be most happy to discuss this matter with you any time at your convenience. Sincerely, ROBERT S. MCNAMARA. There is only one copy of that letter available and I think it well to have a stencil cut, Mr. Counsel, so that it can be passed around. ISSUE OF EXECUTIVE PRIVILEGE NOT CLEARLY RAISED Members of the subcommittee, in thinking about this matter overnight, and looking in part into the very voluminous precedents, rulings, cases and other references, I realized that we certainly were not in the position yesterday to make a final determination of this matter. points were going to be raised, for the information of the full committee, before we attempted to rule on it. And then on top of that, when I got to the office, there was a call from Secretary McNamara, saying that he was sending over a letter. I have just read the letter, which I received about 20 minutes ago. The letter says in effect that they have not yet raised this question of executive privilege. Now, let me say to Mr. Vance, the General Counsel for the Department of Defense, who is present, that I am sure he realizes and Secretary McNamara realizes, too, that there will have to be a clear-cut definite raising of the question and facts presented that bring you clearly within the privilege. Otherwise, as a matter of course, the subcommittee will proceed with full power with its questions to the witnesses. I am sure you realize that. And this is the legislative branch of the Government asserting its power, not wanting to run over anyone else, and certainly not abusing its powers, but we expect to proceed, I am sure, with the full impact of what powers we do have. Now, I do appreciate the spirit here, as I understand from the letter, that before that privilege is squarely raised, the Secretary is willing to exhaust all effort to see if matters can be arranged whereby the subcommittee can obtain the facts it wishes without doing violence to what Secretary McNamara, a member of the executive branch of the Government, thinks is his duty in connection with his Department. So in that spirit I think that the subcommittee could well have a conference with him to see further just what the subcommittee wants, what each member of the subcommittee wants, in connection with this matter and just what the Secretary's final position will be when he has considered all these facts. Senator Thurmond was the gentleman who asked the question and asked for an answer, and he is directly involved in this, as are other members of the subcommittee. Senator Thurmond and I had a chance to discuss this only 2 or 3 minutes before the subcommittee was due to convene. Senator Thurmond, does that raise a question? You have the letter before you. If you have had a chance to glance at it, do you care to make a response to the letter or to what I have said or anything along that line at this point? Senator THURMOND. Well, Mr. Chairman, I think the witness should have answered the question yesterday as we are only trying to help the Defense Department, to help our Government, and I feel that Secretary McNamara fully understands that this is no effort to entrap anyone. It is simply to bring out the facts and to show what the policy is, and I hope that he might withdraw his objection. For instance, Mr. Lawrence yesterday stated that it is his opinion that censors do not censor speeches and statements and articles, and so forth, out of caprice and did not substitute their personal judgment for policy, and that it was his opinion that they followed the policy, and so that is what we want to show by the censors. We would like to take a speech and read a statement from it and say, "Now, did you substitute your judgment when you put in certain words and took out certain words or were you following policy?" That is what we have in mind. And if they followed policy, well, that is what we want to From what Mr. Lawrence said, they merely followed policy. We have to find out whether the censors did substitute their judgment for that of the speechwriter or whether they followed policy, and I know of no other way of getting at policy or the source of the policy than this. Now, if the particular speech I asked about was not censored by them but was sent to the State Department and they suggested or made mandatory the censorship of certain paragraphs and statements, well, then, so far as I am concerned, the Defense witnesses are through, and then we will follow there and ask the State Department censors the source of the policy. We are trying to find out what is the source of the policy. What is the reason for the censoring that has occurred here so frequently and which is illustrated by excerpts from speeches that are shown in this big red book here which is about 3 inches thick. Mr. Chairman, that is the only purpose we have in mind and I feel when Secretary McNamara understands that this is a sincere effort to determine that reason, that he would not object. CONFERENCE WITH M'NAMARA PROPOSED Senator STENNIS. Senator, may I reply to that? I think there is great force in what Senator Thurmond says. By the way, I am sorry that copies of this letter are not available for all members of the subcommittee. It is being handled just as rapidly as possible. There were only the original and one copy. I think there is great force in what Senator Thurmond says and we want to make it clear now that the subcommittee is not waiving any of its prerogatives or any of its powers and no individual of the subcommittee is waiving any rights and privileges or responsibilities that go with them. I think further that in view of the situation here as expressed in the letter, and in Senator Thurmond's statement as to how he feels about it, knowing both are in full faith, and I accept them as such, that it is probable that we could work out something between Secretary McNamara and the subcommittee that would prove satisfactory and achieve the ends desired by the subcommittee and at the same time let him carry out his responsibilities as he sees them. And to that end perhaps Senator Thurmond, who asked the question would agree that we could discuss this matter with Secretary McNamara over the weekend and at least better understand each other and have something definite for the subcommittee by Monday or Tuesday. Senator Thurmond, will you respond to that? Senator THURMOND. I would be glad to cooperate with you, Mr. Chairman, in that respect in any way I can. Senator STENNIS. That would involve, of course, as I emphasized, no member waiving anything today or any other day as far as any witnesses are concerned. Senator THURMOND. Of course, as I understand it, that is clearly understood, that the committee-the subcommittee and I are waiving none of our rights here. Senator STENNIS. The subcommittee is just transacting business |