10. THE FEDERALIST no. 73, at 409 (rev. ed. 1901) (with special introduction by Goldwin Smith).

11. 1 ANNUALS OF CONGRESS 499 (1789-1790).

12. See generally, id. at 456-585.

13. See remarks of Mr. Hartley, id. at 581.

14. Id. at 533.

15. Remarks of Eugene V. Rostow, YALE LAW REPORT, Fall and Winter of 19711972, reprinted at 118 CONG. REC. S. 5263 (daily ed. March 30, 1972).

16. See generally Emerson, War Powers Legislation, 74 W. VA. L. REV. 53 (1972), Appendix A, as reprinted with supplementary data in War Powers Hearings Before the Subcommittee on Nat'l. Security Policy and Scientific Developments of the House Comm. on Foreign Affairs, 93d Cong., 1st Sess. at 328 (1973). There have only been five declared wars, the War of 1812, the War with Mexico, the Spanish-American War, and World Wars I and II.

17 E.g., Appendix A to statement of Leon Freidman, special counsel A.C.L.U., War Powers Legislation, supra note 3, at 806-807.

18. C. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES 51 (1921). 19. Id.

20. W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 4 (1941). 21. Id.

22. Compilation of numbers of treaties and international agreements other than treaties concluded by the United States during the period Jan. 1, 1946, to April 1, 1972, by U.S. Dept. of State, in Hearing on S. 3475 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong., 2d Sess. at 416 (1972). (hereinafter Hearing on S. 3475).

23. Id.; McClure, supra note 20, at 4.

24.1 Stat. 232, 239 (Act of Feb. 20, 1972).

25. U.S. Dept. of State compilation. Hearings on S. 3475, supra note 22, at 416. 26. Testimony of John R. Stevenson, Legal Adviser, U.S. Dept. of State, Hearing on S. 3475, id. at 249.

27. "List of executive agreements with foreign states, since World War II, in which the Department of Agriculture has participated," id. at 555.

28. Communications Act of 1934, §§ 303(1), 310(a); 47 U.S.C. §§ 303 (1), 310 (a) (1934).

29. Part (b) of list of communications requirements entered into between the United States and other countries. Hearing on S. 3475, supra note 22, at 573-575. 30. List of Intergovernmental Executive Agreements in which the NASA has participated, id., at 594, 595.

31. List of executive agreements in which the U.S. Dept. of Treasury has participated in since World War II, Customs, id., at 617.

32. Id., Tax, at 620-622.

33. Chronological list of investment guaranty agreements and Amendments, 1948 to 1972, Overseas Private Investment Corp., id., at 601-604.

34. List of executive agreements in which the National Oceanic and Atmospheric Administration, U.S. Dept. of Commerce, has participated since World War II. part "B. Cooperative Weather Programs," id. at 565, 566.

35. See generally replies of U.S. Government Agencies to letter of Senator Sam Ervin, Jr., Chairman, Subcommittee on Separation of Powers, soliciting information on the number of executive agreements entered into, id., at 552-627.

36. 22 U.S.C. §§ 2151 et seq. (1961).

37. 22 U.S.C. §§ 2751 et seq. (1968).

38. Testimony of J. Fred Buzhardt, General Counsel, U.S. Dept. of Defense, Hearing on S. 3475, supra note 22, at 331.

48. Stevenson, Hearing on S. 3475, supra note 22, at 256. 49. Id.

50. E.g., remarks by Senator Ervin relative to stationing U.S. troops in other countries, Hearing on S. 3475, supra note 22, at 267.

51. The State Department Legal Adviser asserts that "even where agreements are involved, they do not necessarily create commitments by the United States." Stevenson, Hearing on S. 3457, supra note 22, at 257.

52. "Agreements permitting the United States to use facilities abroad do not in any sense require deployment of U.S. forces.... The agreements simply constitute action by the President to secure for the United States an 'option' to use facilities." Stevenson, id.

This interpretation is also accepted by the Department of Defense, whose General Counsel testified that agreements concerning our rights to construct, operate and maintain military facilities and installations overseas "provide only an option to the U.S. Government, and the exercise of the option is dependent upon both autorizations and appropriations from the Congress." Buzhardt, id., at 333.

53. The legal arguments in support of the President's power to make eхесиtive agreements in every consequential respect equivalent to a treaty are set forth in a general constitutional discussion by Assistant Attorney General Erickson, Hearing on S. 3475, supra note 22, at 307-313, and in a voluminous study by Professor Myres McDougal and Asher Lans, written twenty-eight years ago but still eminently useful. McDougal-Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (pts. 1-2), 54 Yale L.J. 181, 534 (1945). A recent article which concludes the Constitution provides ample authority for the executive agreement is Hopson, The Executive Agreement in United States Practice, 12 AIR FORCE JAG L. REV. 252 (1970).

Professor McDouglas retains his earlier position. He writes:

"It seems to me that our usage during the past twenty-five years strongly confirms that the President's independent powers over foreign affairs include a competence to make important agreements of substantial duration. Certainly, our experience as a nation in an increasingly dangerous world indicates that it is indispensable that he have such a competence."

Letter from Myers McDougal to Barry Goldwater, Jan. 12, 1973 (unpublished letter in author's personal files).

An early treatise by John Bassett Moore setting forth numerous examples of purely executive agreements on a wide range of topics, having far-reaching importance, is of continued legal significance. This paper was cited approvingly by the Supreme Court as portraying "the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs." Moore, Treaties and Executive Agreements, 20 Pol. Sc. A. 385 (1905) cited in United States v. Pink, 315 U.S. 203, at 230 (1952).

54. D. ACHESON, PRESENT AT THE CREATION 195, 196 (1969). 55. R. KENNEDY, THIRTEEN DAYS 23 (1969).

56. Id., at 35, 36.

57. Id., at 52. President Kennedy did meet with Congressional leaders, but only after he had taken these actions and decided upon the naval blockade. Many in Congress advised more forceful action than he was prepared to take. Id., at 53, 54.

58. Id., at 110.

59. Library of Congress, Legislative Reference Service, A Selected Chronology on Cuba, October 23, 1962—January 1, 1963, at 1-13.

60. Goldwater, supra note 1. at 435-443. Also, see Emerson. War Powers: An Invasion of Presidential Prerogative, 58 A.B.A.J. 809 (August 1972).

61. Goldwater, id., at 445-447.

62. On March 15, 1973, the Senate Democratic Policy Committee voted without dissent that U.S. troops stationed overseas be reduced by two-thirds. 119 CONG. REC. S4830 (daily ed. March 15, 1973), S 5013 (daily ed. March 19, 1973). This is exactly the kind of policy directives which I believe Congress cannot legislate. Acting as Commander-in-Chief, which confers upon him supreme command and direction over the Armed Forces, the President possesses full constitutional authority to direct the movement of the forces. He can send them anywhere, with the consent of the host countries, necessary to U.S. foreign policy objectives and U.S. defense. J. POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES 472 (1870).

Moreover, the Framers never meant for Congress to have authority to lay down automatic restrictions governing the Executive's troop deployment decisions in advance of the actual setting in which the President might feel compelled to act. This is not the way they planned the Constitution to function. As Hamilton wrote in the Federalist No. 23, "The circumstances that endanger the safety of nations are infinite; and for this reasons no constitutional shackles can wisely be imposed on the power to which the care of it is committed." 63. New York Times Co. v. United States, 403 U.S. 713, 727, 728 (1971). 64. 100 CONG. REC. 2374 (February 26, 1954). 65. S.J. Res. 1, 83d Cong., 1st Sess. (1953).

66. Id., § 3.

67. Reid v. Covert, 354 U.S. 1 (1957).

68. E.g., testimony of Senator J. William Fulbright, Hearing on S. 1125 before the Subcommittee on Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong., 1st Sess., Executive Privilege: The Withholding of Information by the Executive, at 21 (1971).

69. As to the use of the Armed Forces in the national defense, I have mentioned above that the United States has engaged in at least 204 foreign military hostilities in its history and only five have been declared wars. See text accompanying note 16 to note 19, supra.

I have also cited above the prevalence of executive agreements over treaties in every period of our history but the first fifty years. See text accompanying note 20 to note 23, supra.

The historical precedents of executive privilege have been well summarized and analyzed by William H. Rehnquist, then Assistant Attorney General, in his appearance before the Senate Subcommittee on Separation of Powers on August 4, 1971. Hearings on S. 1125, supra note 68, at 420-438. An exhaustive study covering a concentrated period of time is made in Kramer and Marcuse, Erecutive Privilege-A Study of the Period 1953-1960 (pts. 1-2), 29 GEO. WASH. L. REV. 623, 827 (1961).

The principle of usage has been recognized by the Supreme Court as a determining factor in constitutional interpretation. In United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Court approved the validity of a long continued practice of the President to withdraw public land from private acquisition even though this conflicted with a statute by Congress which made such lands free and open to occupation and purchase. Using practice to fix the construction, the Court explained, "is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself-even when the validity of the practice is the subject of investigation." Id., 473.

A decade later the Court again looked to usage as a ground in rejecting Congressional control of a Presidential action. In holding that Congress could not shift gears after 73 years of practice and suddenly legislate conditions on the removal by the President of executive officers, even though such practice had often been the subject of bitter controversy, the Court argued :

"Nor can we concur. that when Congress, after full consideration and with the acquiescence and long practice of all the branches of the Government, has established the construction of the Constitution, it may by its mere subsequent legislation reverse such construction. It is not given power by itself thus to amend the Constitution. Myers v. United States, 272 U.S. 52, 152 (1926).

70. In centralizing the national defense powers in the President, the Framers were influenced by precedents in the practice of European nations, in former plans of union for the colonies, and in the then recently established State constitutions. Berdahl, supra note 18, at 115; McClure, supra note 20, at 251-258.

The members of the Constitutional Convention were equally familiar with the writings of Locke, Montesquieu, and Blackstone, all of whom saw the making of defensive war and the conduct of foreign relations as being properly the function of the Executive. Locke, Two TREATISES ON CIVIL GOVERNMENT (Gough, ed.) Bk. II, §§ 145-148, 159, 160 (1966); Montesquieu, SPIRIT OF THE LAWS, Bk. XI, Ch. 6 (1805); Blackstone, 1 COMMENTARIES, 253-54.

71. The Constitutional "primacy" of the President in the field of foreign affairs is apparently recognized by at least six Justices of the present Supreme Court. Justice Stewart, joined by Justice White, has implicitly stated that the Constitution endows the President with "a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense...." New York Times Co. v. United States, supra note 63, at 729.

Justice Blackmun has written:

"Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety." Id., at 761.

Justice Marshall has added that "it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander-in-Chief." Id., at 741.

Chief Justice Burger, joining Justice Harlan and Justice Blackmun, has openly described the scope of executive power as one of "Constitutional primacy in the field of foreign affairs...." Id., at 756.

Justice Rehnquist, joined by the Chief Justice and Justice White, grounded their opinion in a recent "act of state doctrine" case on the underlying basis of "the primacy of the Executive in the conduct of foreign relations" and "the lead role of the executive in foreign policy." First National City Bank v. Banco Nacional De Cuba, 406 U.S. 759, 767 (1972).

72. Acheson, The Eclipse of the State Department, 49 FOREIGN AFFAIRS 593, 595 (July 1971). 73. Id., at 598, 601.

74. The Council was established by the National Security Act of 1947, approved July 26, 1947, 50 U.S.C. § 402.

75. Concise, authoritative descriptions of the history and role of the National Security Council are in Hearings Before the Subcom. on National Policy Machinery of the Senate Comm. on Government Operations, 86th Cong., 2d Sess. (1960) and S. FALK-T. BAUER, NATIONAL SECURITY MANAGEMENT- THE NATIONAL SECURITY STRUCTURE. Chapter III (revised ed. 1972). The former was prepared by two top members of the NSC staff and the latter is a volume furnished for instructional purposes at the Industrial College of the Armed Forces.

76. Fulbright, supra note 68, at 21.

77. During debates in the first Congress, James Madison contended that wanton acts of "mal-administration" would subject the President to impeachment and removal. 1 Annals of Congress 498 (1789-1970). Madison even avowed, "I am not afraid to place my confidence in him (the President), especially when I know he is... liable to be displaced if his conduct shall have given umbrage during the time he has been in office." Id., at 462.

78. 1 ANNALS OF CONGRESS 585, (1789-1790).

79. E.g., see remarks of James Madison, 1 ANNALS OF CONGRESS 463, 498 (17891790).

80. Myers v. United States, 272 U.S. 52, 176 (1926).

81. Berger, Executive Privilege v. Congressional Inquiry (pts. 1-2), 12 UCLA L. REV. 1044, 1288 (1965), at 1320.

82. 118 Cong. Rec. (daily ed. June 20, 1972), at H5820, H5821; 31 CONG. Q. WEEKLY REP. 294 (1973).

83. See text of President Nixon's March 12, 1973, policy statement on executive privilege. 31 CONG. Q. WEEKLY REP. 608 (1973).

84. Memorandum of Richard Nixon (August 30, 1971), Hearing on S. 1125, supra note 68, at 45, 46.

85. Id., at 46.

86. The legal bases in support of the Executive's position are set out by Assistant Attorney General Rehnquist, id., at 420-442; Kramer and Marcuse, supra note 69, at 898-909.

87.31 CONG. Q. WEEKLY REP. 294, 295 (1973).

88. Id., at 295. From 1969 to 1973, Secretary of Defense Laird made 86 appearances before Congressional Committees, encompassing over 327 hours of testimony. See White House Executive Privilege Text, supra note 83.

89. Berger, supra note 81, at 1323.

90. See text of Resolution of Senate Democratic Policy Committee-Re Executive Privilege, 119 CONG. REC. (daily ed. Jan. 18, 1973), at S 798.

91. S. 1125, Am. No. 343, 92d Cong., 1st Sess. (1971); S. 858, 93d Cong., 1st Sess. (1973).

92. 1 Stat. 65, approved June 25, 1789.

93. E.g., Berger, supra note 81, at 1060; Fulbright, supra note 68, at 24.

94. 1 Stat. 66.

95.1 ANNALS OF CONGRESS 592-615 (1789-1790).

96.1 ANNALS OF CONGRESS (1789-1790).

97. Professor Berger, who himself has suggested that the Treasury Act might be an early precedent, nevertheless testified before the Senate Hearing on Executive privilege that:

"Hamilton really wanted to be in a position to intrude, to offer his advice. He wanted to have a pipeline into the Congress, so he could come in and advise the Congress about financial matters With the Treasury Department, they (the first Congress) were more concerned with warding off Hamilton's officiousness. The provision for a call for information was merely designed to bar Hamilton's unsought intrusions." Berger, Hearings on S. 1125, supra note 6S, at 296, 297.

To which, I might add that Hamilton is quoted by Jefferson as construing the Act creating the Treasury Department as not making him "subject as to be obliged to produce all papers [Congress] might call for." P. Ford, I THE WRITINGS OF THOMAS JEFFERSON 190 (1892).

Under a well-settled rule of legislative interpretation, Federal courts are compelled to resort to the legislative history of a statute to determine whether, in light of the articulated purposes of the legislation. Congress intended that the statute apply to the particular cases in question. Allen v. Board of Elections, 393 U.S. 544, 570 (1969). From the mass of the legislative history articulating the purposes of the Treasury Act of 1789, as so well explained by Professor Berger himself, it is clear the Members of the first Congress gave no thought to the statute as being applicable to information which the Executive might determine could not be safely communicated, but had in mind only information of a kind which the Executive would furnish voluntarily or indeed might thrust upon them.

Similarly, a 1928 Act of Congress pertaining to the furnishing by Executive Departments of any information requested by the Senate and House Committees on Government Operations (45 Stat. 996) was intended by Congress to include only information of types which the Executive had previously furnished to Congress voluntarily. Wolkinson, Demands of Congressional Committees for Executive Papers, 10 FED. B. J. 103, 322, 323 (1949).

Should Congress pass a statute plainly requiring the Executive to provide all kinds of information without any room for Executive discretion. I believe the statute would be unconstitutional to the extent it invades the President's independent prerogative to withhold information in the areas of foreign relations, national defense, pending law enforcement matters, internal discussions, or confidential investigative reports. See text at notes 98 to 104.

98. Senator Ervin, who chaired Senate hearings on executive privilege, appears to agree on these limited areas of independent Presidential power. Ervin, id. at 252, 253.

99. White House Executive Privilege Text, supra note 83. 100. Id., at 609.

His announcement does not indicate that President Nixon has thrown a blanket immunity over his private staff. The President declared, both at his press conference of January 31, 1973, and in his formal paper of March 12, 1973, that "the question of whether circumstances warrant the exercise of executive privilege should be determined on a case-by-case basis." Id., at 609.

Applying this rule to the merits of the Watergate affair, where wrongdoing has been charged, the President announced that all members of the White House staff will appear voluntarily, when requested, before the Senate select committee (known as the Ervin committee) which is investigating this case. The President said any of his staff so invited will testify under oath and will answer fully all proper questions. "Executive privilege will not be invoked as to any testimony concerning possible criminal conduct, or discussions of possible criminal conduct..." Text of President Nixon's announcements concerning the Watergate matter. The Wash. Post, April 18, 1973, at A-24, cols. 1-3; The Evening StarNews, May 23, 1973. at A-10, col. 5.

White House staff members also were directed to testify before a Federal grand jury investigating Watergate if called. The Wash. Post, Mar. 31, 1973, at A 1, col. 7, A 11, col. 1.

101. "No case has authoritatively determined the extent to which Congress may compel the production of testimony or documents from the executive branch of government..." Borman, Policing the Executive Privilege, 5 U. OF MICH. J. OF LAW REFORM 568 (Spring 1972), at 569.

102. E.g., Am. Law Div., Lib. of Cong., Memorandum of June 7, 1971, Hearings on S. 1125, supra note 68, at 543-551.

103. See note 69, supra.

104. The Supreme Court has remarked that the scope of the Congressional power of inquiry "is not without limitations." More specifically, the Court said