"If your bill were to specify that Presidential papers are automatically Governmental property but may be kept available for a former President's personal use during his lifetime, then I believe you would have accomplished what you are trying to achieve while at the same time being fair to the individual involved and avoiding great administrative and bureaucratic problems."

Then, the last paragraph is just window dressing.

The one provision that troubles me is the 180 days during which the GSA is supposed to go through the President's papers and fish out those considered official documents and presumably take them out of his possession. I do not think you want to take them out of the President's possession during his lifetime and on top of that, I do not see how, in 6 months, unless you have a team of 50 full time, you could go through all these papers and make a really reasonable judgment. That, Mr. Chairman, really concludes my voluntary remarks.

Mr. BRADEMAS. Thank you very much, Mr. Eisenhower, for your most illuminating statement based on your experience. I might say with respect to the Bayh bill that it is my understanding the 180-day period is the period in which the papers must be turned over to GSA, not the period within which the sorting between personal and public papers is to be accomplished.

If I may, let me just put two or three questions to you:

In reading the letter from President Eisenhower of April 13, 1960, to the then Administrator of GSA, I note item 11 of that document states:

Title to my papers and other documentary materials and the literary property rights in my papers, shall pass to the United States as such papers and materials are transferred to the United States under the terms and conditions herein expressed, except that I reserve to myself and to my heirs (a) a right to make any use of any of these papers in writing for publication, and (b) literary property rights in any works that I have written or may hereafter write for publication. These reservations include the right to license any publisher of any such work.

I read item 11 of President Eisenhower's letter against the background of the agreement which has, of course, triggered so much public concern and motivated Mr. Hansen and me to introduce H.R. 16902. I refer, of course, to the agreement announced by President Ford on September 8, 1974, which, as you will recall, provides not only that the papers and tapes of former President Nixon remain in his custody, but also provides mandatory destruction of those materials under certain conditions. I wonder, in light of your own experience with President Eisenhower's papers and other materials, if you would tell the subcommittee your own view of that particular provision in the agreement to which I refer?

Mr. EISENHOWER. Mr. Chairman, to start with, that paragraph 11 which you refer to in there is based on the premise which was in our time unchallenged: that the President's papers are his own personal property. Therefore, he reserved to himself and his heirs the literary rights to those papers. If the heirs do use those papers and they are not made available to all scholars it causes an awkward situation. I am inclined to think, having a personal involvement in this, things were done about right with my father's papers, except that the basic assumption that those papers are personal property probably should be done away with. I do not see, logically, why Presidential papers should be considered personal property. They should be considered

governmental papers. But I do believe for purposes of protection of the outgoing President he should retain not only access but control. I would like to go a little further than I did in my letter to Senator Bayh because, when you have a change of political party, access to the former President's papers gives ammunition for the incoming party to go through and find embarrassing things.

If you will, Mr. Chairman, I would rather not go too far in the current thing. I do not know any more about it than anybody else. Papers, I believe, should remain governmental property in the control of the outgoing President during his lifetime and perhaps the Congress would like to determine how many years the outgoing President would be permitted to put things under seal. This concept would rule out selling papers for personal profit, deduction of gifts for tax purposes, and destruction. I think making these things public propertybut under the control of the outgoing President-takes care of all of these things which would touch upon this agreement you mentioned.

Mr. BRADEMAS. Thank you very much, Mr. Eisenhower. Another question relating to an issue you have touched on in part, is confidentiality of staff memos, personal letters. Would the publication of such memos and letters inhibit the staff from fully performing their staff responsibilities?

Mr. EISENHOWER. Well, that is one of the arguments, Mr. Chairman, against making those papers available to everybody immediately upon a President's leaving office. A President is undoubtedly going to find ways of doing his communicating other than by official Presidential papers if he knows that his papers will soon be public. And the loser in that case would be history. He would probably go into little rooms, iceboxes where nothing could be heard from them, and conduct confidential conversations where nothing is put on paper and history will be the loser. It is a very tough problem.

Mr. BRADEMAS. Thank you, I will yield to Mr. Hansen.

Mr. HANSEN. Thank you, Mr. Chairman. Let me say how grateful we are for your valuable time and insight into the problem with which we are dealing. In listening to you, it struck me that if the papers of a President are to be at some time public property, necessarily there must be some kind of depository for them. I guess all of which have been the result of private donations, do you think it would be necessary and desirable to make some provision on a continuing basis for the stability of a Presidential library or depository into which the papers of a President would ultimately be delivered?

Mr. EISENHOWER. I do not believe that would be necessary, sir. Ifthere exists no Presidential library at the time of a President's departure from office, there is space made available in GSA anyway, for all his papers. I doubt there would be any President going out of office, if he served out his full term, who would not have a following able to build a library such as the Eisenhower edifice.

In the case of President Kennedy, at the time of his untimely death, there had been no Presidential library set up at this time so as I understand, all his papers have been kept in the Archives pending the building of the Kennedy Library at Cambridge.

I would think the best thing to do would be to take this matter on a case-by-case basis. If the President leaves office in an untimely man

ner, then a building could be constructed. But I would hate to see the Federal Government take this on if it could be done on a private basis, then turned over to the Government. Done on a private basis, the building could be built more to the taste of the President involved. I just recommend it be done on a case-by-case basis.

Mr. HANSEN. Because it is done by donations, this would not, in any way diminish the public's interest?

Mr. EISENHOWER. No, sir, I am very confident that it will not. I have been involved in eleemosynary foundations also and do not see how, even if these buildings are constructed by private donation, they can be administered by private donation. They just have to be turned over to the Government, from a practical point of view.

Mr. HANSEN. The idea of a library located, for example, in Abilene, the home place or birthplace of a President, appeals to me, but what about the technique of microfilming all papers available to other areas such as the Library of Congress or Archives?

Mr. EISENHOWER. This has the storing of Presidential papers has been under attack by scholars at various times. I am very fond of the Abilene library so I may not be a very objective witness. However, these files, President Eisenhower's personal papers, have been microfilmed and there are two or three sets of films around some place, one at Johns Hopkins by a very special arrangement, one set is in the Archives and another at Abilene.

I may be painting myself in a corner here. I think without a doubt, there should be microfilms kept in safe places other than Presidential libraries. I do not think there is such a thing as an absolutely fireproof building and the only thing I would hope could be done would be that the outgoing President's reasonable restrictions of keeping certain papers under seal would be observed by other people keeping the papers in microfilm.

If I had my way all my father's papers in Abilene would be flushed out and made public right now. I have been through them all and there is nothing I would object to. I do not think there is anybody who would be embarrassed. But there is so much national security material in those papers that it may be necessary to clear these documents through the Defense Department, and so on.

If you try to build one building to house all future Presidential papers, it would be a whale of a building. I am in favor of the Presidential library, it suits the character of the individual President and especially if it is constructed by private contributions.

Mr. HANSEN. I am with you on that.

Mr. BRADEMAs. Thank you, Mr. Gettys.

Mr. GETTYS. I want to express appreciation for your coming here today. With regard to evaluation of those papers

Mr. EISENHOWER. I hope I didn't interrupt. Mr. Gettys asked where my Dad's personal papers were in contrast to the Presidential.

To the best of my knowledge, every letter my father wrote in 8 years, is in Abilene. He dictated all those letters. The onionskin copies are all at Abilene. Of course, the original letters he sent out are in the possession of the various people he wrote them to. I might say, in one case this has caused us some embarrassment because one letter was sold by a recipient, put up for sale for $2,000 by a recipient. The letter had embarrassing material in it. But the copy of that letter is at

Abilene and it is public property. It has literary value, not intrinsic value.

Mr. GETTYS. The volume is so great, I assume. Would the Presidential papers all be kept, although some have no value, or may some be destroyed? Should everything be kept in some way at a library?

Mr. EISENHOWER. If I am not mistaken, Mr. Gettys, I think the Archivist has the right to destroy extraneous and foolish stuff; that is, for inconsequential gifts, et cetera.

Mr. GETTYS. Have you ever had a situation where there were any court actions relating to subpenas?

Mr. EISENHOWER. Subpenaes of documents?

Mr. GETTYS. Yes.

Mr. EISENHOWER. NO.

Mr. GETTYS. Do you have any opinion as to whether those papers should be subject to subpena?

Mr. EISENHOWER. Again, I plead to be left out of this current situation, but I think on a long-term basis, they should be subject to subpena. It should not be necessary, sir. Take, for example, in 1967, during the Israeli-Arab war, the 5-day war, President Johnson found that since all the Presidential papers had been taken out of the White House, certain correspondence between President Eisenhower and Prime Minister Ben Gurion pertaining to 1957, 10 years earlier, some of those documents were not there. This gave the Israeli Government a certain advantage over President Johnson because they had the copies of correspondence and he did not.

All this took to remedy the situation was a telephone call. Presidents do tend to form a club among themselves. President Johnson called my father. I returned to Gettysburg, found the documents President Johnson wanted and turned them over to him.

Hopefully, things could be handled that way without subpenaing documents. In fact, I might add something. I have been told through reliable sources, President Adams' papers are not all public as yet. By his own desire they are still under wraps, some of them.

Mr. GETTYS. Thank you, Mr. Eisenhower. I would add, Mr. Chairman, on a personal note, Gettysburg was named for me. I have been to Gettysburg and I can never get any cooperation in getting a Confederate day parade.

Mr. EISENHOWER. If the Confederates would supply the manpower for the parade, I am sure Gettysburg would be more than delighted to have one. It has been only within the past 20 years that Confederate monuments have been put up in Gettysburg.

Mr. BRADEMAS. You have been most generous with your time and helpful in your observations. The subcommittee is grateful.

Our next witness is our own distinguished colleague, Hon. John F. Seiberling, Representative from Ohio.

STATEMENT OF HON. JOHN F. SEIBERLING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. SEIBERLING. Thank you, Mr. Chairman, I believe you and your staff have copies of my prepared statement. I would like to offer that for the record and state my position orally.

Mr. BRADEMAS. Without objection, so ordered. [Mr. Seiberling's statement follows:]

STATEMENT OF CONGRESSMAN JOHN F. SEIBERLING (D-OHIO)

Mr. Chairman, I would like first to commend the Chairman and the Subcommittee for the initiative you have shown in tackling the subject of Presidential papers, a subject which raises many complex issues involving law, history, and public policy.

These hearings are being conducted because of the national outrage over the agreement concerning the disposition of the tapes and papers of President Nixon's administration. Nonetheless, these hearings should not focus solely on the Nixon records, because what President Nixon wants is no more than what other Presidents have wanted and have gotten. The Nixon-Ford agreement does, however, point up the potential for abuse because the Nixon tapes and papers are in immediate jeopardy.

There has been much discussion on the question of who owns Presidential papers the officeholder or the Government. Attorney General Saxbe used an unconvincing bootstrap argument to conclude that, because all Presidents have done it and Congress hasn't stopped it, the practice of Presidents claiming personal ownership of the records of their administrations has risen to the level of law.

Just because Congress has been hesitant to challenge the practice doesn't mean that the practice is justifiable. I think that the Government, on behalf of the public, owns all the records prepared by or for the President-an officer and employee of the United States-in the performance of his official duties. Those records are produced entirely at the taxpayers' expense, so I can't see how a President can legitimately assert that they are his own private property. In this connection, I would like to associate myself with the views expressed by Professor Arthur S. Miller, who is scheduled to testify later this morning.

The question of ownership, however, is one which this Subcommittee need not decide. The Government may take private property by eminent domain, provided that just compensation is paid. H.R. 16954, which I have introduced and which I will discuss in a moment, provides that the payment of just compensation is authorized in the event that a court were to decide that the Government's obtaining or retaining Presidential papers deprived anyone of private property. We should not forget that Article IV, section 3, clause 2 of the Constitution states:

"The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States."

With Congress' power to dispose of Federal property necessarily goes the power to preserve Federal property.

Mr. Chairman, it is the need to preserve and protect Presidential records that is the overriding public policy that I trust your Subcommittee will consider. As long as the past practice is allowed to continue, Presidents will be free to manipulate and distort history, even after they have left office. This really is the right President Nixon wants. The Nixon-Ford agreement would permit President Nixon to destroy any papers and all tapes. In fact, the agreement doesn't permit General Services Administration personnel to listen to or copy any of the Nixon tapes without President Nixon's approval.

Once again, I must point out that President Nixon's assertions aren't new. Every other President before him assumed the right to decide what papers to disclose to the public and what papers to retain or destroy. It is likely that almost all of our Presidents have destroyed some materials they thought might reflect adversely on their administration. Indeed, the public papers of most of our Presidents probably paint a biased picture of the history of the various presidencies. The practice of permitting this "instant revisionism" should be terminated by Congress because we cannot expect cooperation from the White House. I think that any deliberate effort by our Presidents and former Presidents to distort history by destroying selected unfavorable documents cannot be justified. The fact that other Presidents did it does not mean we must allow President Nixon or future Presidents to do it.

Mr. Chairman, the bill I have introduced, H.R. 16954, differs in some important respects from other bills which are before this subcommittee. Your own bill, Mr. Chairman, would establish a blue-ribbon panel to study the disposition and preservation of the records a d documents of all elected and appointed