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Title: Washington Cover-Up
Author: Mollenhoff, Clark R.
Language: English
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WASHINGTON COVER-UP
WASHINGTON
COVER-UP
_Clark R. Mollenhoff_
DOUBLEDAY & COMPANY, INC., GARDEN CITY, NEW YORK
1962
LIBRARY OF CONGRESS CATALOG CARD NUMBER 62-13288
COPYRIGHT © 1962 BY CLARK R. MOLLENHOFF
ALL RIGHTS RESERVED
PRINTED IN THE UNITED STATES OF AMERICA
CONTENTS
CHAPTER I Secrecy Solves No Problems 9
CHAPTER II The First Century 21
CHAPTER III Teapot Dome to the Tax Scandals 30
CHAPTER IV Army-McCarthy—A Claim of Secrecy
Unlimited 41
CHAPTER V Another Blow at Senator Joe 55
CHAPTER VI Secrecy Fix on Dixon and Yates 60
CHAPTER VII Congress Becomes Concerned 79
CHAPTER VIII Secrecy Hides the Security Bunglers 86
CHAPTER IX Secrecy Curtain on Iron Curtain
Deals 95
CHAPTER X Pressing a Point with Ike 106
CHAPTER XI Keeping the Professor in the Dark 114
CHAPTER XII Ike’s Lawyer and the Law 129
CHAPTER XIII Muzzling the Public’s Watchdog 143
CHAPTER XIV Hiding the Laos Mess 153
CHAPTER XV Defiance to the End, Above the Law 169
CHAPTER XVI Kennedy Makes a Wobbly Start 177
CHAPTER XVII A Pending Problem for JFK 190
CHAPTER XVIII A Solution 201
APPENDIX A Letter from President Eisenhower to
the Secretary of Defense 210
APPENDIX B Letters Regarding the Presidential
Letter of May 17, 1954 222
APPENDIX C Correspondence on the Right of Access
to Information by the General
Accounting Office 224
APPENDIX D Letter from President Kennedy to
the Secretary of Defense 236
APPENDIX E Executive Privilege Correspondence
between President Kennedy and
Congressman John E. Moss 237
WASHINGTON COVER-UP
CHAPTER I
Secrecy Solves No Problems
No single factor is more important to the strength of our democracy
than the free flow of accurate information about the government’s
operations. The citizen in a democracy must know what his government
is doing, or he will lack the soundest basis for judging the
candidates and the platforms of our political parties.
Our elected officials are given only a temporary grant of power,
and only a temporary custody of government property and government
records. Neither the President nor those he appoints have any royal
prerogative; they have only a limited right to steer our government
within the framework of the Constitution and the laws.
It is well to remember that every withholding of government business
from the public is an encroachment upon the democratic principle that
government officials are accountable to the people. It follows that
citizens should regard all governmental secrecy with some suspicion
as an encroachment on their right to know.
The American citizen should reject all arbitrary claims to secrecy
by the bureaucracy as sharply as he would reject any claims to a
right of the executive branch to by-pass Congress in levying taxes.
A wise citizen should be as outraged at arbitrary secrecy as he
would be at arbitrary imprisonment. Logically he should insist on
the same safeguards against arbitrary secrecy that he would against
unjustified arrest or taxation. The public’s “right to know” is that
basic.
Unfortunately, there is a general tendency to regard government
secrecy as only a problem for the newspapers. And even within the
newspaper profession there is a tendency to ignore government secrecy
until it interferes with a story the individual reporter or editor
wants to develop.
I am not interested in pleading for any special right of access to
government information for newspapers or reporters. As vital as their
function is, newspapers, magazines, television and radio for the most
part merely provide an orderly process for disseminating information
about government to the people who do not have the time, money,
or technical facility to acquire the information for themselves.
Transmitting information gathered at a government press conference or
through a government press release does not necessarily answer the
people’s right to know.
The public has a right to expect that its government’s press releases
will be factually accurate, and for the most part they are. We
also have a right to expect our highest officials to be factually
accurate, but we must recognize realistically that it is only normal
for them to color facts with opinions and conclusions that are most
favorable to the political party in power.
This manipulation, shading, twisting, or omission of facts—often
referred to as “managing the news”—will be limited only by the
political fear of being exposed for having made erroneous or
intentionally misleading statements to the public. As reprehensible
as the practice can be, it is nevertheless a political fact of life
and those who lament its existence would do better to bolster the
one sure safeguard against it: the people’s right to know—through
the press and through their elected representatives in Congress.
News management, I repeat, can be controlled only by insisting on
the public’s right to go behind the statements distributed by the
government agencies or by high government officials.
Those who manipulate the news or try to cover their tracks with
arbitrary secrecy are not likely to be pursuing totalitarian goals.
Usually the only motivation is short-term political gain. Often it
is rationalized on grounds that a few factual errors and overdrawn
conclusions are not important when viewed in the total context of
the achievements of the party in power. There is also the standard
rationalization that a few distortions only serve to balance the
distortions of the other political party.
No administration enjoys admitting errors or mismanagement of
government. Because the criticism is usually initiated by the
political opposition, it is often harsh and overdrawn. An instinctive
defensiveness springs up within the defending political party, and
the battle rages.
In the classic political controversy, the initial criticism has been
followed by a demand for a full investigation. The press has already
done some investigative work and has printed stories dealing with
all available aspects of the controversy. However, when the probing
by the press or by private citizens has not been conclusive, the
Congress, throughout the history of the United States, has launched
investigations to dig out the facts not otherwise available to the
press or the public. And almost as often as the Congress has dug in,
the executive branch has refused or been reluctant to co-operate.
A truly thorough investigation of the executive branch can be
conducted only in the Congress. It is unreasonable to believe that
an Attorney General, appointed by the President, will aggressively
delve into an investigation of matters that might embarrass his own
administration. For this reason, the right of the public and the
press to government information is for the most part contingent upon
the power of Congress to obtain documents and testimony from the
executive branch.
If the committees of Congress, acting within the scope of their
authority, cannot obtain access to all the facts on government
activity, then the facts can be arbitrarily hidden for the
duration of the administration’s power. Who would argue that
any administration should be allowed to bury its crimes, its
mismanagement, and its errors until a public, barred from full facts
on these matters, decides to vote that party from power? Such a
philosophy would put a premium on the Washington cover-up.
Properly authorized committees must have the power to compel
government officials to testify and produce government records. If
this power is lacking, the Congress, the press, and the public are
dependent upon the information or half-information that the executive
branch chooses to release. It should be obvious to even a novice
in politics that politicians are not likely to voluntarily produce
testimony or records that may harm their own aspirations.
Most congressional requests for information have been filled without
trouble. The executive branch has resisted, however, whenever it
seemed likely that congressional hearings would expose some political
favorite or embarrass the administration. Invariably it has been
claimed that the Congress was invading the executive branch and that
some constitutional issue was involved.
In this book I will show how the executive branch, beginning with
George Washington’s administration, has handled requests from
Congress for delivery of information. And I will show how the
tendency to withhold information has grown, particularly since World
War II.
It is not my intention to argue that all government information
should be made public immediately, for I am fully aware of the
need for security on military matters as well as the need for some
restrictions on release of information from personnel files and
investigative files.
In practice, we must allow our elected officials the right to
withhold some kinds of information from the public. War plans and
other papers involving military security are the more obvious
examples. But any withholding should be done under specific grants of
authority from Congress or under specific grants in the Constitution,
and the authority should be carefully limited. The broad right of
arbitrary withholding of information is not something that any
officials should be permitted to arrogate to themselves.
There is ample justification for laws that set out areas of military
information to be withheld from the general public. There always
has been. It would be especially foolhardy in these days of serious
international tension to insist on a full public disclosure of our
military posture. However, this does not mean that all persons
outside the military establishment should be barred from access
to military information. There should be no question about proper
committees of Congress having access to nearly all information on
military spending, for this is the only way the Congress can obtain
sufficient information for passing laws and appropriating money.
Also, the auditors of the General Accounting Office (GAO) must have
access to all but the most highly classified Defense secrets, or
they will be unable to carry out their duties of determining whether
expenditures are being made in an efficient and lawful manner.
There might also be justification for withholding information from
the public when it involves diplomatic negotiations with a foreign
nation. However, barring the public should not bar the GAO or
properly authorized committees of Congress except under the most
unusual and most clearly delineated circumstances.
There are other areas of government in which secrecy is justified.
These include the raw investigative files of the Federal Bureau of
Investigation (FBI), and some parts of the government personnel
files. There are clear reasons for barring the public from the FBI
investigative files, for these files contain much unevaluated rumor
and many unauthenticated documents. Also, as FBI Director J. Edgar
Hoover has pointed out, much mischief could be done by the underworld
and subversive elements if they had access to FBI files.
But while we are using a limited secrecy to guard our chief
federal investigative agency, we must realize that law enforcement
agencies can go wrong if there is not some regular scrutiny from
the outside. This was demonstrated in the twenties, just prior to
the time when J. Edgar Hoover was put in charge of cleaning up the
federal investigative agency. We have been fortunate to have a J.
Edgar Hoover heading the FBI, but we cannot assume that the office
will always be filled by one whose major ambition is creating and
maintaining a skilled career investigative agency.
Under unusual circumstances, arrangements have been made for
examination of an entire FBI file by the chairmen of the Judiciary
committees of the House and Senate. On occasion, the ranking minority
member of these committees has taken part. Since this procedure
provides for examination by a Democrat and a Republican, it has the
strength of being bipartisan. It has the disadvantage of depending
on the character and personality of the majority and minority
representatives for true bipartisanship. The procedure is a touchy
one that the press, the public, and the Congress must scrutinize
periodically. Certainly the FBI must have a right to keep its files
secret from the public, but it should never be forgotten that some
limited bipartisan congressional group must have authority to examine
these files if we are to remain secure from possible abuse of power.
President Truman wrapped government personnel files in secrecy on the
theory that making them available to a Republican-dominated committee
of Congress could result in the use of rumor and hearsay to “smear”
government officials. Certainly it is laudable to try to protect
government employees from baseless charges. But this “protection”
for the government employees has its drawbacks. Such secrecy has been
used to prevent government employees from gaining access to their own
medical records which were material to a defense in an ouster action.
It also shields government personnel administrators from criticism
and thereby encourages arbitrary actions.
I learned once of a case in which the secrecy surrounding personnel
files made it impossible for a woman to find out why she had been
discharged by the government. I will refer to the woman as Mrs. A,
for there is no necessity of stirring up more problems for her now if
she has been able to find a job after being out of work for several
years.
Mrs. A was a woman of about fifty with more than twenty years of
service with the Civil Service Commission as a shorthand reporter.
She had had some problems with an employee in the same section
and some disagreement with a supervisor. She was asked to go to
the Department of Health, Education and Welfare for a physical
examination.
Mrs. A took the physical examination and shortly afterwards was
forced to resign. She was given no reason except that something
in the physical examination made her unqualified to continue as a
government employee. Mrs. A went to a private physician and had a
thorough examination to try to find out why she was unqualified to
hold her job with the government. The doctor could find no reason for
her discharge.
At this point Mrs. A hired a lawyer. Neither the doctor nor the
lawyer could obtain access to the records of the physical examination
given to Mrs. A at the Department of Health, Education and Welfare.
The lawyer hired by Mrs. A found himself tilting with a ghost. He
could not find out why his client was discharged, and yet he was
faced with trying to establish proof that whatever was alleged was
not true.
I could not believe the story Mrs. A told when she first came to my
office, but I said I would examine it and see what I could do. It
checked out in every detail. I was informed at the Health, Education
and Welfare Department that the physical records of all government
employees were confidential. There were no exceptions. I pointed
out that this confidential status was set up for the purpose of
protecting the government employees against public intrusion, but
that it certainly couldn’t be meant to keep a government employee
or her private doctor from examining her records. Officials at
the Department of Health, Education and Welfare disagreed. I made
repeated calls to see if I could get the policy changed, but to no
avail.
Mrs. A was a little more distressed each time she came by the
office, for I was unable to interest anyone in her case. She was not
important. She was not the center of a big political drama.
Was it a wrongful discharge? I could not answer the question when it
was raised by lawyers for committees of Congress. It was possible
the file would have shown justifiable grounds for the discharge. I
could only argue that it was wrong to bar this woman, her lawyer,
and her doctor from examination of a file giving the results of her
government health examination.
Despite the inequity in this case and others similar to it, a general
belief prevailed in Washington that secrecy on government personnel
files and loyalty-security files was an unmixed blessing. The fallacy
of this contention was impressed on me every time I saw Mrs. A. She
was defeated in appearance, and she was deeply hurt.
There is a sharp cruelty in secrecy that results in such injury to
an individual, and there is great damage to our government—and to
people’s faith in it—when secrecy is used to cover up mismanagement
and corruption. I am gravely concerned over any obstructions put
in the way of congressional committees’ investigating the abuses
of secrecy. Where would we be if Congress had not looked into
such nefarious schemes as the Teapot Dome scandals of the Harding
administration or the tax “fixes” in the Truman administration?
Have we, a self-governing people, learned anything from these black
marks on our history? I am afraid that we have not learned enough
yet. I am afraid that the people as a whole, and many persons in the
press and Congress, tend to disregard the danger signs and accept the
self-serving declarations of virtue from their Presidents or other
high officials. A few newspapers, a few diligent investigators for
congressional committees, a few senators and a few congressmen have
had to take the whole responsibility for breaking through unjustified
secrecy and uncovering the truth.
In my twenty years as a newspaper correspondent I have been
concerned with this problem of information policies at every level
of government—starting in a local police station, city hall, county
courthouse, and state capitol. For the past eleven years I have
been covering the federal government for the Washington Bureau of
Cowles Publications. I have been fortunate to have the freedom
to follow any investigations that interested me, as well as the
enthusiastic support of several newspapers. My position has afforded
me the privilege of a day-to-day acquaintanceship with every major
investigation in Washington since 1950.
The problem of the Washington cover-up became a major interest to
me in connection with the scandals in the Reconstruction Finance
Corporation (RFC) and the Internal Revenue Service beginning in
1950. The investigations of the RFC were of a reasonably short
duration. The pattern of “political favoritism” in administering this
government loaning agency was ended when W. Stuart Symington, later
a United States Senator, was named by President Truman to restore
order. Symington instituted the “fishbowl policy” that brought most
of the RFC operations out in the open.
The problems with secrecy in the Internal Revenue Service remained
a major news story for more than two years. The Internal Revenue law
provides that it is unlawful to disclose the information on the tax
returns submitted by U.S. taxpayers. It was a secrecy established in
a specific statute, and the purpose was to protect the privacy of the
finances of individual taxpayers. However, investigations by Senator
John J. Williams, the Delaware Republican, and a House subcommittee,
headed by Representative Cecil King, the California Democrat, showed
that the secrecy was used to shield crooked tax agents and tax
collectors from exposure and prosecution.
The Alcohol Tax Unit (ATU), a division of the Internal Revenue
Service, had even set up procedures to provide for secret settlements
of criminal law violations. Also, ATU provided secret hearings on
applications for a federal license to wholesale liquor or beer.
A racketeer found it possible to go into a secret hearing, give
perjured testimony, and obtain a license with the help of weak or
corrupt ATU administrators.
The lesson was clear in each case: secrecy corrupts. It allowed
government officials to dispense favors behind closed doors. When
decisions were secret, there was no need to provide any consistency
in decisions or in penalties. It was impossible for the public or the
press to obtain enough information to register an informed objection.
During fights to open records in the Internal Revenue Service,
I became acquainted with James S. Pope, executive editor of the
Louisville _Courier-Journal_ who was then chairman of the Freedom of
Information Committee of the American Society of Newspaper Editors.
We worked together in forcing the Internal Revenue Service to open
certain “compromise settlements” of tax cases as well as the ATU
hearings.
In exploring these and other information problems, I worked closely
with the late Harold Cross, former special counsel for the American
Society of Newspaper Editors; J. Russell Wiggins, executive editor of
the Washington _Post and Times Herald_; Herbert Brucker, editor of
the Hartford _Courant_; and V. M. (Red) Newton, managing editor of
the Tampa _Tribune_.
We shared a deep suspicion of government secrecy and also resented
what it did in corrupting our system of government. I was privileged
to serve as a member of the national Freedom of Information Committee
of Sigma Delta Chi (the journalism fraternity) and handle the
Washington phase of the reports for Red Newton for a period of more
than five years. For a longer period I have worked with the American
Society of Newspaper Editors’ Freedom of Information Committee. I
have testified before committees of the House and Senate.
My testimony before the Moss subcommittee in November 1955 was the
first testimony on the scope of the problem of “executive privilege”
advanced by the Eisenhower administration. I have kept in touch
continuously with Representative John Moss, the California Democrat,
and the members of his staff from the time their subcommittee was
established. I am particularly indebted to Staff Administrator Sam
Archibald, Staff Consultant Paul Southwick, and staff lawyers John
Mitchell and the late Jacob Scher.
Others who were particularly helpful and co-operative over these
years were the late Senator Thomas Hennings (Dem., Mo.); Charles
Slayman, counsel for the Hennings Judiciary Subcommittee; Senator
John McClellan (Dem., Ark.), and Robert F. Kennedy, who was his
chief counsel; Herbert Maletz, chief counsel for a House Judiciary
Subcommittee; Representative Porter Hardy (Dem., Va.); John Reddan,
chief counsel for the Hardy Government Operations Subcommittee;
Representative F. Edward Hebert (Dem., La.); James Naughton, chief
counsel for the Fountain Government Operations Subcommittee; and John
Courtney, chief counsel for the Hebert Armed Services Subcommittee;
Arthur John Keefe, counsel for the Senate Antitrust and Monopoly
Subcommittee; and Representative George Meader (Rep., Mich.).
The knowledge of the secrecy problem gained by most of these
lawmakers and lawyers has been understandably confined to their
experiences with one or two committees, whereas I have had the
opportunity to become aware of the day-to-day activities of nearly
all the committees. For that reason, and because of my alarm at the
public apathy over government secrecy, I have decided to set the
whole story down in one place. Most of the story is taken from the
official records of congressional committees—the sworn testimony, the
correspondence with government agencies, and the official reports
of Senate and House investigators. As much as possible, I have put
it together in chronological, narrative form so that the reader may
discover, as I did, how the abuse of government secrecy has spread
and just how vast and serious the scope of it has become. At the end
of the book I will make some recommendations that I hope may serve as
a guide to eliminating this serious threat to our democratic form of
government.
CHAPTER II
The First Century
An Indian uprising along the Indiana-Ohio border in 1791 set the
stage for the first investigation by Congress of decisions in the
executive branch. President Washington, then in his first term, sent
Major General Arthur St. Clair into the wilderness to put a stop to
the raids.
General St. Clair and his fourteen hundred American soldiers were
camped along the headwaters of the Wabash River on November 3 when
they were surprised by the attack of a strong force led by Little
Turtle, chief of the Miami.
The Indians killed more than six hundred officers and men and
forced the others to retreat. It was a humiliating defeat, one that
still ranks among the worst in our history. Congress demanded an
explanation.
On March 27, 1792, the House of Representatives appointed a select
committee to inquire into the failure of the St. Clair expedition,
and “to call for such persons, papers, and records, as may be
necessary to assist their inquiries.” For the first time, the
President and his Cabinet were presented with the problem of whether
to make papers and testimony available to Congress.
President Washington called a meeting of his full Cabinet to
determine the proper way to proceed, for he was aware that the action
taken would set a precedent on such matters.
Thomas Jefferson wrote the following account of the meeting and the
conclusions drawn by the Washington Cabinet:
“First, that the House was an inquest, and therefore might institute
inquiries. Second, that it might call for papers generally. Third,
that the Executive ought to communicate such papers as the public
good would permit, and ought to refuse those, the disclosure of
which would injure the public; consequently were to exercise a
discretion. Fourth, that neither the committee nor House had a right
to call on the head of a department, who and whose papers were under
the President alone; but that the committee should instruct their
chairman to move the House to address the President.”
Jefferson also wrote:
“Hamilton agreed with us in all these points except as to the power
of the House to call on the heads of departments. He observed that
as to his department, the act constituting it had made it subject to
Congress in some points, but he thought himself not so far subject
as to be obliged to produce all the papers they might call for. They
might demand secrets of a very mischievous nature. (Here I thought
he began to fear they would go on to examining how far their own
members and other persons in the government had been dabbling in
stocks, banks, etc., and that he probably would choose in this case
to deny their power; and in short, he endeavored to place himself
subject to the House, when the Executive should propose what he did
not like, and subject to the Executive when the House should propose
anything disagreeable.)... Finally agreed, to speak separately to the
members of the committee, and bring them by persuasion into the right
channel. It was agreed in this case, that there was not a paper which
might not be properly produced; that if they should desire it, a
clerk should attend with the originals to be verified by themselves.”
Although the Cabinet indicated a need for a discretion to withhold
papers “which would injure the public,” President Washington agreed
that in the case of the St. Clair expedition “there was not a paper
which might not be produced.”
There was no withholding by President Washington in this case, and it
could hardly be regarded seriously as a precedent for any right to
arbitrarily refuse executive papers to Congress.
There was one other instance in Washington’s administration in
which the Congress asked for executive papers. In this case, the
House of Representatives asked for the papers and instructions to
United States ambassadors who negotiated the Jay treaty. This time
Washington refused to deliver the papers to the House on the specific
constitutional grounds that the Senate, not the House, is authorized
to advise and consent on treaty matters.
A Supreme Court case in the administration of President Thomas
Jefferson raised the question of whether it was possible for the
courts to force the Cabinet to perform certain acts required by law.
In the last hours of the administration of President John Adams a
“midnight appointment” was made of a justice of the peace for the
District of Columbia named William Marbury, a minor Federalist
political figure. James Madison, who became the new Secretary of
State in the Jefferson administration, refused to deliver the
commission to Marbury to complete the appointment process.
Marbury asked the Supreme Court to issue a writ of mandamus under the
Judiciary Act of 1789 to force Madison to deliver the commission. In
February 1803, Chief Justice John Marshall delivered the opinion of
the court. First he dealt with the question of whether Madison had
a right to refuse to deliver the commission to a properly appointed
official. The decision was a rebuke to Secretary of State Madison and
stated: “Is it to be contended that the heads of departments are not
amenable to the laws of their country?”
However, the opinion went on to conclude that the Constitution
provided no method for the Supreme Court to issue writs to force
the executive action requested. Chief Justice Marshall stated that
the Judiciary Act providing for a writ was inconsistent with the
Constitution, and that “a law repugnant to the Constitution is void.”
Although Madison was wrong in withholding the commission from
Marbury, the court held that under the Constitution there was no
way to force action. The case did not mean that Madison had a legal
right, but only that Marbury had no remedy. The Marbury appointment
was in essence a political matter and could only have been countered
indirectly by the impeachment of the President.
The specific question of congressional access to executive papers
was raised in one case in the Jefferson administration. In 1807,
President Jefferson was requested to furnish the House “any
information in the possession of the Executive” on the allegation
of a conspiracy by Aaron Burr. However, the request specifically
exempted papers “such as he [Jefferson] may deem the public welfare
to require not to be disclosed.”
President Jefferson displayed an awareness of the dangers of
arbitrary withholding of information by carefully explaining the
nature of the papers he did not deliver. He stated that these papers
included matters “chiefly in the form of letters, often containing
such a mixture of rumors, conjectures, and suspicions as to render it
difficult to sift out the real facts and unadvisable to hazard more
than general outlines, strengthened by concurrent information or the
particular credibility of the relator.”
Later, when Aaron Burr was actually tried for treason in Richmond,
Chief Justice Marshall issued a subpoena for papers in Jefferson’s
custody, including a private letter from General James Wilkinson to
Jefferson. While Jefferson continued to assert a right to determine
which papers he would produce, he did in fact send all the documents
requested in the subpoena. Also, General Wilkinson appeared at the
trial and testified fully about his communications with President
Jefferson. Chief Justice Marshall’s decision conceded that the
President could not be summoned to make a personal appearance before
a judicial body because of the nature of his position and the dignity
of his office. Since Jefferson produced all the documents under
subpoena there was no need for adjudicating the issue of what types
of papers might be withheld. [The trial eventually resulted in a jury
acquittal for Burr.]
Until President Jackson’s term there were no significant
controversies over requests for information. Jackson was involved in
a number of disputes. Although he consistently asserted a right to
withhold information from Congress, he usually sent the requested
documents along with his angry criticism of Congress for making the
requests.
A Senate investigation of land frauds in the Jackson administration
resulted in demands for papers dealing with land transactions
conducted by a Jackson appointee. President Jackson refused to
deliver the papers to Congress, but the resulting cover-up of land
frauds could hardly be called a precedent worthy to be followed.
President John Tyler was requested to submit to the House of
Representatives the reports of Lieutenant Colonel Ethan Allen
Hitchcock concerning an investigation of frauds which were alleged
to have been perpetrated on the Cherokee Indians. President Tyler
produced a part of the information at the time of the request but
declined to produce the full investigative reports in 1843. He argued
that to be effective such investigations must often be confidential.
“They may result in the collection of truth or falsehood; or they
may be incomplete, and may require further prosecution,” Tyler said.
“To maintain that the President can exercise no discretion ... would
deprive him at once of the means of performing one of the most
salutary duties of his office ... and would render him dependent upon
... [another] branch [of government] in the performance of a duty
purely executive.”
However, in a later message to Congress on the Cherokee Indians
matter, President Tyler directed that all of the reports be made
available. He did not acknowledge the right of Congress to command
the Executive to produce all information. Neither did he claim an
unlimited right for the President to withhold. He declared that there
must be some discretion left with the President when “the interests
of the country or of individuals” is to be affected by production of
the records. He enumerated some circumstances in which he felt the
President actually had a duty to withhold—as, for example, during a
pending law enforcement investigation.
After the Civil War there was a flurry of investigations, but these
caused little conflict. The corrupters in the Grant administration
were foresighted enough to bring key members of the Republican
Congress into their dishonest schemes as an insurance against
exposure by the committees of Congress.
A Democratic Congress, elected in 1874, initiated a series of
investigations into the War and Treasury Departments to eradicate the
corruption and to set the stage for the next presidential campaign
in 1876. The frauds were so raw that the feeble efforts to hide
them were useless. The inquiries disclosed how the government was
defrauded by a “Whisky Ring” that evaded millions of dollars in taxes
on distilled whisky. The “ring” operated with co-operation from
some Treasury officials as well as from President Grant’s private
secretary, General Orville E. Babcock.
Another congressional investigation of the Grant administration
implicated Secretary of War W. W. Belknap in widespread graft in the
assignment of trading posts in the Indian territory. He resigned
from office in the face of a threat of impeachment, carrying with
him a presidential letter expressing “regret” that he was leaving
government. President Grant’s letter of “regret” to a man who had
betrayed a trust set a pattern for Presidents for a long time to
come. The whole ritual, indeed, has remained the same. First come the
accusations, followed by denials of any improprieties. Then comes the
effort to hide the records. This is followed by the tardy admission
of facts but a denial of illegality, and finally the letter from the
President lauding the dishonest public official for his fine service
coupled with “regretful” acceptance of his resignation.
The corruption of the Grant administration is considered by many to
be the worst blot on the nation’s escutcheon. Republican political
figures organized a construction firm, the Crédit Mobilier of
America, which was used to divert lavish profits from the building
of the Union Pacific Railway. An American diplomatic figure lent his
name to a huge mine swindle, Navy contracts were for sale, and there
were wholesale frauds in the custom houses.
The widespread scandals of the Grant administration presented no
basic problem for Congress in obtaining government records because
the key evidence in these cases could be obtained from sources
outside the executive branch.
However, a problem did develop in 1876 when the Democratic House
sought to obtain testimony and records of financial transactions
of Jay Cooke & Company. Jay Cooke & Company was one of the largest
financial institutions of the time, and Jay Cooke was close to the
Grant administration and Republican party politics. When the House
of Representatives discovered that the Secretary of the Treasury had
deposited large sums of money with a London branch of Jay Cooke &
Company, it sought to determine whether there was some impropriety
involved in the decision to make the deposit.
In the course of its investigation, the House issued a subpoena
for Hallet Kilbourn, who managed some real estate operations for
Jay Cooke & Company. Kilbourn refused to produce the documents
sought and argued that the House had no right to investigate private
affairs. The House ordered him arrested for contempt.
Kilbourn was imprisoned by House Sergeant at Arms John Thompson.
Kilbourn immediately obtained a court order for his release and then
sued Thompson for false imprisonment. The U. S. Supreme Court held
that Thompson was liable for damages, and in the decision threw a
doubt over the right of Congress to punish witnesses for refusing to
answer questions or produce records.
The decision upset the long-standing view that the power of Congress
to investigate was as broad as the almost limitless power of inquiry
of the British Parliament. The U. S. Supreme Court stated:
“We are sure no person can be punished for contumacy as a witness of
either House, unless his testimony is required in a matter into which
that House has jurisdiction to inquire, and we feel equally sure that
neither of these bodies possess the general power of making inquiry
into private affairs of the citizen.”
It was not until 1927, when the U. S. Supreme Court decided the case
of _McGrain v. Daugherty_, that the right of Congress to compel
testimony was firmly reaffirmed. In the intervening thirty-five years
two Presidents successfully resisted the Congress!
President Grover Cleveland, a Democrat, faced a Republican Senate,
and Theodore Roosevelt, an independent-minded Republican, took
delight in testing his strength even against a Republican Congress.
President Cleveland in 1886 backed his Attorney General in refusing
to deliver to the Senate some reports dealing with the administration
of the United States District Attorney’s office in the District of
Columbia. The man who had held the office had been suspended, and
Cleveland argued that the report on the reasons was the business of
the executive branch. Because the Kilbourn case had weakened the
position of Congress, Cleveland was not challenged.
President Theodore Roosevelt refused to allow his Attorney General
to deliver papers to the Senate dealing with the status of
investigations involving the U.S. Steel Corporation. The papers
included an Attorney General’s opinion on the U.S. Steel Corporation
case.
Although the papers sought involved a pending case, the Senate
insisted on pursuing the matter. Herbert K. Smith, head of the Bureau
of Corporations, was summoned and was threatened with contempt
and imprisonment if he failed to produce the documents. President
Roosevelt asked Smith for the papers and, after taking them into
his possession, informed the Senate the only way they could get the
papers would be by impeaching him. The Senate then dropped the matter.
The infamous scandals of the Harding administration renewed the will
of the Congress, and proved for all time the need for Congress to
investigate even when a President assures the public that “all is
well.”
CHAPTER III
Teapot Dome to the Tax Scandals
Before Congress completed its investigations of the Harding
administration scandals, cabinet officers had been found to be
involved in the maladministration or corruption. Secretary of Navy
Edwin Denby resigned from office under a barrage of criticism.
Attorney General Harry M. Daugherty, involved in several questionable
financial transactions, was indicted on a charge of having accepted
a $200,000 payoff in connection with handling of Alien Property
Custodian affairs. Daugherty was acquitted of the criminal charge,
but reports of Congress established him as corrupt and incompetent
in the handling of his office. Secretary of Interior Albert Fall was
convicted of accepting a bribe and sent to prison.
It was in May 1921, within a year of President Harding’s election,
that Secretary of Interior Fall persuaded the President and Navy
Secretary Denby to transfer certain naval oil reserves from the Navy
to the Interior Department. Once he got them within his domain, Fall
then transferred the oil reserves—at Teapot Dome, Wyoming, and Elk
Hills, California—to two private oil producers, Harry Sinclair and
E. L. Doheny. The leases were signed secretly, without competitive
bidding, and Secretary of Interior Fall conveniently tossed them into
a drawer away from public view. He then proceeded to collect $100,000
from Doheny for the Elk Hills transfer, and $300,000 from Sinclair
for the Teapot Dome transfer.
Months later when the Democrats learned of the oil leases they
demanded explanations and alleged, without substantiation, that the
leases might involve some improprieties. Fall and Denby explained
that the transfers to the Interior Department and the leasings were
“in the public interest.”
When President Harding put his personal stamp of approval on the
leasing of the oil reserves, public sentiment turned against the
investigating Democrats. A big, smiling man with an open face that
seemed to project total integrity, Harding easily gave the impression
that all was well with the oil reserve transactions. Although events
later proved that he lacked understanding of the Teapot Dome scandals
as well as many other important matters that took place in his
administration, his reassurances at this stage were readily accepted
by the public and the press.
Nevertheless, the Senate investigating committee persisted. Both
Secretary of Interior Fall and Secretary of Navy Denby were called
to testify. It was essential to question these two high-level
government officials to lay the groundwork for the investigation. It
was essential to explore the conversations between them, as well as
the personal financial transactions between Fall and the Doheny and
Sinclair interests. It was also necessary to explore the opinions and
recommendations of subordinate officials.
Without all of this information, Congress could not have proved the
dishonest use of a government position by Albert Fall. It would
have been naïve to expect that the Justice Department under Harry
Daugherty would have conducted an investigation that was fair and
objective, for Daugherty was already mired in his own corruption.
The Harding scandals should have demonstrated for all time that the
public cannot rely on any administration to police itself. Nor can
it rely on the self-serving declarations of a President, however
well-meaning he may be.
President Harding died on August 2, 1923, a broken and disillusioned
man, still unaware, however, of the full extent of the scandals.
Coolidge’s administration and most of Hoover’s had passed before the
investigations were finally completed, the convictions recorded, the
appeals completed, and Fall imprisoned in 1931.
President Coolidge was faced with a request for a list of the
companies in which his Secretary of Treasury, Andrew Mellon, had an
interest. A special Senate investigating committee was studying the
Bureau of Internal Revenue and wanted to investigate the tax returns
of firms with which Mellon was associated.
President Coolidge said it would be “detrimental to the public
service” to reveal the list of Mellon’s business interests and the
tax returns of those firms. With that, the investigation ended.
Another request for information was similarly nipped by Hoover. The
Senate Foreign Relations Committee had requested that Secretary of
State Henry L. Stimson produce the contents of telegrams and letters
leading up to the London Conference and the London Treaty. The
committee contended it had a special right to such papers because of
the constitutional prerogative of the Senate in the treaty-making
process. Stimson disagreed and President Hoover backed him, arguing
that in order to maintain friendly relations with other nations,
it would be unwise to give the Senate all of the information on
statements leading up to the treaty.
President Franklin D. Roosevelt was favored with a Congress that
was largely on his side in his first two terms, so that there were
no conflicts over information sought by Congress. Indeed, President
Roosevelt preferred having committees of Congress investigate and
dramatize problems in order to facilitate the passage of various New
Deal measures.
Congress did run into opposition to requests for information in
Roosevelt’s third term, however. In 1941 Roosevelt rejected requests
for FBI records and reports, and in 1944 FBI Director J. Edgar Hoover
refused to testify or to give Congress a copy of a presidential
directive requiring him, in the interests of national security, to
refrain from testifying.
The President was backed by a ruling from his Attorney General,
Francis Biddle. In a letter dated January 22, 1944, Biddle claimed
that communications between the President and the heads of
departments were confidential and privileged and not subject to
inquiry by Congress. Another opinion by the Attorney General had
previously supported President Roosevelt in refusing to make records
of the Bureau of the Budget available to Congress.
The Roosevelt administration also used the secrecy routine to hamper
a House investigation of the Federal Communications Commission
(FCC) in 1943 and 1944. The FCC probe involved the basic charge of
political tampering with an independent regulatory agency. There were
indications of improper secret contacts with some commission members
while cases were being decided.
The Roosevelt administration used every political method available to
impede the investigations, including the use of friends in Congress
to harass the investigators. Two men who successively held the title
of general counsel—Eugene L. Garey and John J. Sirica—resigned
in the face of the obstructions and harassment. They charged the
investigation was being turned into a “whitewash.”
The final report of the committee gave the FCC a clean bill of
health. However, the minority report filed by Representative Richard
B. Wigglesworth, Republican of Massachusetts, stated: “It has been
impossible for the committee to conduct anything approaching a
thoroughgoing investigation.”
Congressman Wigglesworth charged that the committee consistently
acted “to suppress indefinitely alleged unsavory facts said to
involve high administration officials and advisers.” He made
reference to the “methods both brutal and shameful” used to force the
original chairman of the investigating committee to resign, and to
the general atmosphere that resulted in the resignations of counsels
Garey and Sirica.
The unhealthy conditions, which the House committee had started
to expose, were left to fester, and fourteen years later the full
effects burst on the American public. The investigations of the House
Legislative Oversight Subcommittee in 1957, 1958, and 1959, which
will be described in a later chapter, disclosed that the successful
blocking of the FCC investigation in 1944 not only allowed bad
practices to continue but thereby encouraged corruption.
Though President Roosevelt had directed the Secretaries of War and
Navy not to deliver some documents which the FCC investigators had
requested, his stated reason was simply that it would “not be in
the public interest.” No broad claims of a constitutional right to
withhold information were ever invoked. There was no need for them
because the cover-up was that ruthless and that effective. Had the
nation not been at war, such a cover-up would likely have caused a
major uproar.
The end of World War II and the election of a Republican Congress
in 1946, however, brought the Democrats to heel. From the time the
Republican Congress took control of the committees, the Truman
administration was in almost constant combat with Congress. The first
disputes involved the efforts of Republican committees of Congress
to obtain access to FBI records and loyalty files. Later disputes
centered on efforts to gain access to records of the Bureau of
Internal Revenue and the Justice Department.
In 1947, the Republicans were intent on demonstrating that the Truman
administration was “coddling Communists.” Investigators sought
access to personnel records and letters dealing with the retention
and promotion of persons who were alleged to be security risks or of
questionable loyalty.
President Truman issued an executive order barring Congress from
access to any of the loyalty or security information in the personnel
files of the government. He said it was to protect the government
employees from abuse by committees of Congress. The unrestrained
activities of some congressional investigators did indeed make the
order seem justifiable to many. However, the Republicans viewed it as
a cover-up.
Representative Richard M. Nixon, later the Vice President,
Representative Charles Halleck, later the Republican leader, and
a dozen other prominent Republicans kept a continuous barrage of
criticism firing at President Truman.
Said Representative Nixon on April 22, 1948:
“I say that this proposition cannot stand from a constitutional
standpoint or on the basis of the merits for this very good reason:
They would mean the President could have arbitrarily issued an
Executive order in the [Bennett] Meyers case, the Teapot Dome
case, or any other case denying the Congress of the United States
information it needed to conduct an investigation of the Executive
department and the Congress would have no right to question his
decision.”
Again, three years later, Representative Halleck was saying on the
House floor:
“His [Truman’s] censorship order gives every agency and department
of the Government the absolute power to decide what information
shall be kept from them. These agency heads are absolute czars unto
themselves. When they order the iron curtain down it stays down—a gag
on the press and radio of the nation.”
Most of this initial criticism was aimed at the rather limited
presidential order which barred Congress from the government
personnel files in the investigations of loyalty and security cases.
Although the Truman administration was reluctant to make records
available when the Republicans began looking into allegations of
improper activities and political favoritism in the Reconstruction
Finance Corporation (RFC), in the Bureau of Internal Revenue, and
in the Justice Department, no blanket order was issued refusing
testimony or records. The allegations were followed first by denials.
Then there was stalling but finally, under the pressure of public
opinion, the records were made available.
What happened specifically was this: Senator John J. Williams, the
Delaware Republican, produced some fairly well documented cases
of favoritism and bungling in the nation’s number one tax agency.
President Truman, Secretary of Treasury John Snyder, and Attorney
General J. Howard McGrath all denied there was any widespread laxity
or corruption in the administration of the federal tax laws. Daniel
Bolich, the Assistant Commissioner of Internal Revenue, and T. Lamar
Caudle, the Assistant Attorney General in charge of the Tax Division,
went before the investigating committees and assured the leaders of
Congress that all was well.
The self-serving declarations of the Truman administration did not
satisfy Senator Williams, however, for they were inconsistent with
many documented facts he held in his possession. A subcommittee of
the House Ways and Means Committee was then established to conduct
a deeper investigation into the handling of tax cases in the Bureau
of Internal Revenue. Later a subcommittee of the House Judiciary
Committee was organized to conduct some further examination of the
way the Justice Department handled tax cases as well as other matters.
Because tax cases were handled by the Bureau of Internal Revenue, a
branch of the Treasury Department, and prosecuted by the Justice
Department, both departments were involved in the investigation.
Tax cases, it was learned, could be fixed in their initial stages
by Internal Revenue agents, or they could be sidetracked at higher
levels in the Bureau of Internal Revenue; they could be rejected
for prosecution by the Justice Department in Washington, or kicked
aside by the United States District Attorney. There were at least a
half-dozen points where a “fix” could take place, and congressional
investigations disclosed that some cases were manipulated at almost
all stages.
When at first the Justice Department files were not made available,
the stalling was recognized for what it was—an effort to hide records
that might be embarrassing. Newspapers quickly pointed out the
cover-up, and Acting Attorney General Philip B. Perlman was forced to
lay down procedural rules for the committees of Congress to use in
requesting access to Justice Department files.
Perlman stated that the Justice Department would not give Congress
access to open cases, but that closed files would be made available.
He also said that FBI reports and similar confidential information
would not be made available. The closed files and the testimony of
high officials were nevertheless sufficient to enable Congress to
document the record of the mishandling of federal tax investigations
and prosecution. Congress extracted testimony from two cabinet
officials—Attorney General J. Howard McGrath and Secretary of
Treasury John Snyder. They revealed their conversations and
communications with their highest subordinates. Records were produced
showing the advice, recommendations, and conclusions of investigators
in the Internal Revenue Service and the staff lawyers in the Justice
Department. It was clear that some of the cases had not been handled
in the normal manner, and that recommendations from subordinate
officials were disregarded at some key points.
Only through this full examination was it possible to prove
that some cases were being “fixed” for money or for political
considerations. Without the full record on the recommendations
from lower officials it would have been impossible to prove that
the mismanagement was due to anything more than “poor judgment” or
negligence.
Neither Attorney General McGrath nor Treasury Secretary Snyder
was shown to be involved in illegal tampering with any tax cases.
However, they had contended that the initial allegations of fraud and
mismanagement were untrue.
The investigations by Congress proved that several high officials
were involved in outright fraud, and a good many more were involved
in gross negligence. The Commissioner of Internal Revenue, the
Assistant Commissioner, and the chief counsel for the Bureau of
Internal Revenue all resigned under fire.
A former Commissioner of Internal Revenue, Joseph Nunan, was
subsequently indicted and convicted on charges of failing to report
large amounts of unexplained income. Assistant Commissioner Daniel
Bolich was indicted and convicted on charges of failing to report
more than $200,000 in income, though the conviction was later upset
by the United States Supreme Court on technical grounds. T. Lamar
Caudle, former Assistant Attorney General, in charge of the Tax
Division, was indicted, convicted, and sent to prison on a criminal
charge arising out of his mishandling of a federal income tax case.
Convicted with Caudle was Matthew Connelly, appointment secretary for
President Truman.
In total, dozens of tax officials were ousted from office for
questionable handling of tax cases, and dozens were indicted and
convicted on charges of cheating on their own tax returns. The
mismanagement and fraud, which the Truman administration had sought
to deny existed, was more widespread and sordid than most of the
critics of the Bureau of Internal Revenue had imagined. The damage to
the integrity of the nation’s tax system was incalculable.
If ever a scandal were needed to prove the necessity of a
congressional review to keep our big federal agencies open and clean,
the Truman tax scandal was it. The success of their investigations
only goaded the Republicans to further probing and policing. In
their party platform of 1952, the Republicans pledged “to put an end
to corruption, to oust the crooks and grafters, to administer tax
laws fairly and impartially, and to restore honest government to the
people.”
When he accepted the party’s nomination in Chicago on July 11, 1952,
General Dwight D. Eisenhower said:
“Our aims—the aim of this Republican crusade—are clear: to sweep from
office an Administration which has fastened on every one of us the
wastefulness, the arrogance and corruption in high places, the heavy
burdens and the anxieties which are the bitter fruit of a party too
long in power.”
“What the Washington mess must have is the full treatment,” Candidate
Eisenhower declared at Atlanta, Ga., on September 2, 1952. “The
only clean-up that will do the job is the wholesale cleanout of the
political bosses in Washington. I pledge you that ... I shall not
rest until the peddlers of privilege and the destroyers of decency
are banished from the nation’s house.”
Two days later at Philadelphia, he spoke of the need for an open,
frank government:
“We must not minimize the difficulties; neither can we seek with
words and dollars to make the going look easy when it is tough. There
will be mistakes, but the mistakes we make will not be doctored
up to look like triumphs. There will be no curtain of evasion, of
suppression, or double talk between ourselves and the people.”
At Des Moines, Iowa, on September 18: “We are going to cast out the
crooks and their cronies.... And when it comes to casting out the
crooks and their cronies, I can promise you that we won’t wait for
congressional prodding and investigations. The prodding this time
will start from the top. And when we are through, the experts in
shady and shoddy government operations will be on their way back to
the shadowy haunts, the sub-cellars of American politics from whence
they came.... The first thing we have to do is get a government that
is honest....”
And at St. Louis, Mo.:
“... we must take the people, themselves, into our confidence and
thereby, restore their confidence in government. We will keep the
people informed because an informed people is the keystone in the
arch of free government.”
The crusade against secrecy and corruption stayed at the forefront of
the campaign and swept Eisenhower and Nixon into office on November
4. When the electoral vote was tallied, it stood 422 Republicans to
89 Democrats—a genuine mandate to clean up “the mess in Washington.”
CHAPTER IV
Army-McCarthy—A Claim of Secrecy Unlimited
On the morning of May 17, 1954, the klieg-lighted Senate Caucus
Room was jammed with spectators. Near the end of the huge table at
the front of the room, Senator Joseph R. McCarthy hunched over a
microphone, reviling the Eisenhower administration. He claimed that
high officials of the Eisenhower administration were arbitrarily
silencing witnesses from the executive branch, and in doing so were
preventing him from defending himself.
It was the eighteenth day of the already famous Army-McCarthy
hearings, an exciting political drama that held the attention of an
estimated 20 million television viewers. Over the weeks the Senator
had sneered at Army Secretary Robert T. Stevens and anyone else who
disagreed with him. His smirking disrespect and heavy-handed humor
had already cooled the enthusiasm of many of his followers. Some had
even turned against him. Senator McCarthy, in short, had created
the worst possible climate in which to make any appeal to fair play
or decency. And yet the Wisconsin Republican was now making such an
appeal and would soon be receiving some sympathetic comment from
Democratic as well as Republican senators.
The point at issue was simple: Should Army Counsel John Adams be
required to testify as to conversations at a meeting at the Justice
Department on January 21, 1954? Adams had already testified to being
present on that day with Attorney General Herbert Brownell, Jr.,
Deputy Attorney General William P. Rogers, Presidential Assistant
Sherman Adams, White House Administrative Assistant Gerald D. Morgan,
and United Nations Ambassador Henry Cabot Lodge. The meeting had been
called to try to find ways to curb Senator McCarthy’s free-wheeling
investigation of the loyalty-security program in the Defense
Department.
When, following this testimony on May 14, the Senate committee
members asked for information about the conversations, Adams balked.
He said that “instructions of the Executive Branch” barred him from
telling of the conversations at that key meeting on January 21.
Committee members were concerned. How could they obtain the evidence
necessary to draw a conclusion on the hearings if they were to be
barred from all “high-level discussions of the Executive Branch”?
The Army-McCarthy hearings centered on charges and countercharges
involving Army Secretary Stevens, John G. Adams, Defense Department
General Counsel H. Struve Hensel, Senator Joseph McCarthy, Roy M.
Cohn, and Francis P. Carr. Cohn was chief counsel for McCarthy’s
Permanent Investigating Subcommittee, and Carr was chief investigator.
The Department of the Army alleged that Senator McCarthy, Cohn, and
Carr had improperly used the power of the McCarthy subcommittee
to obtain preferential treatment for Cohn’s pal, Private G. David
Schine. It was contended that the tough and aggressive little Cohn
had tried to intimidate the Army and Defense officials to get Schine
a commission or a special assignment as an assistant to the Secretary
of the Army, or a post in the Central Intelligence Agency. It was
also charged that Cohn had suggested that Private Schine might be
given a special assignment to work with the McCarthy committee. In
fact, Schine had been drafted and after a short time on regular Army
duty was permitted to leave his regular duties to work with Cohn on
the McCarthy committee investigations.
On the other side, Army Secretary Stevens contended that McCarthy and
Cohn had launched a vindictive probe of the Army security programs
in reprisal against those who had not co-operated to grant special
treatment to Private Schine.
Senator McCarthy countercharged that the Army tried to blackmail
his investigating subcommittee into dropping its investigation of
the Army loyalty-security setup by threatening to circulate an
embarrassing report about Cohn and Schine. The Wisconsin Senator
declared that his investigation of the Army loyalty-security
program was fully justified, and reiterated his charge that Major
Irving Peress had been promoted by the Army despite his record as a
“subversive.” McCarthy did not deny that he had criticized Brigadier
General Ralph Zwicker as a “disgrace” in uniform. And he renewed
his assault on the Fort Monmouth Missile Research Center as a place
honeycombed with “Reds.”
It was easy to understand why the Eisenhower administration held the
January 21 meeting at the Justice Department to decide how to handle
Senator McCarthy. However, it was not so easy to understand why,
after testifying there had been such a meeting, Army Counsel Adams
refused to tell what was said.
Senator Stuart Symington, the handsome Missouri Democrat, was amazed
that testimony would be barred on such a crucial meeting. He declared
that testimony on the January 21 meeting was essential to determine
the responsibility for the Defense Department’s attempt to stop
Senator Joseph McCarthy.
“This was a high-level discussion of the executive department, and
this witness [Adams] has been instructed not to testify as to the
interchange of views of people at that high-level meeting,” explained
Joseph N. Welch, the gentle-voiced Boston lawyer who was serving as
a special counsel for the Army.
“Does that mean we are going to get the information about low-level
discussions but not about high-level discussions?” Senator Symington
asked.
“That is only, sir, what I have been informed,” Welch replied and
then carefully made it clear he was not passing on the right or wrong
of the policy. “It isn’t a point of what I like. It is a point of
what the witness has been instructed.”
Senator Henry M. Jackson, the Washington Democrat, was no McCarthy
supporter, but he too was nettled by the instructions given Adams by
Deputy Defense Secretary Robert B. Anderson. Jackson held that if the
Defense Department had any right to refuse to testify on high-level
conversations, then it had waived that right when Adams told of the
January 21 meeting and the participants.
“I think that maybe this testimony may be embarrassing to the
Administration, and I do not think that because it is embarrassing to
the Administration and favorable to Senator McCarthy, that it ought
to be deleted,” Senator Jackson declared.
“I think this committee should find out now,” Jackson continued,
“whether it [the Administration policy] covers just this conversation
or whether it covers all conversations that went on between the
various officials within the Executive Branch of Government ...
[if] we are going to be foreclosed here immediately from asking
any further questions relating to conversations between officials
within the Executive Branch. Heretofore, those conversations have
been coming in when they have been favorable. Now that they are
unfavorable [to the Administration], are they to be excluded?”
The unfairness of allowing favorable testimony by a witness, and
then arbitrarily cutting off unfavorable testimony was apparent to
many observers, even through the steam of feeling that surrounded
the Army-McCarthy hearings. To justify such arbitrary secrecy, the
Defense Department needed all the prestige it could summon.
The answer to the problem, it was decided, would be a letter from
President Dwight D. Eisenhower to Defense Secretary Charles E.
Wilson. It had to be a letter of high tone in which the popular
President Eisenhower could convince the public that some great
principle was at stake. It had to be general enough to avoid saying
just why John Adams couldn’t testify, but specific enough to give the
impression that the security of the nation and the foundations of the
Constitution were in danger if John Adams were forced to talk. The
letter drafted between Friday, May 14, and Monday, May 17, carried
the full impact of the prestige of a highly popular President, but
it obscured temporarily a sweeping assumption of executive power to
arbitrarily withhold information (see Appendix A).
On Monday morning, May 17, John Adams filed the Eisenhower letter
with the Army-McCarthy committee and a broad new doctrine of
“executive privilege” was born. The glowing phrases about a “proper
separation of powers between the Executive and Legislative Branches
of the Government,” misled the public and a good many newspaper
editorial writers and columnists, even though it did not fool all the
members of the Army-McCarthy committee.
President Eisenhower’s May 17, 1954, letter stated:
“Because it is essential to efficient and effective administration
that employees of the Executive Branch be in a position to be
completely candid in advising with each other on official matters,
and because it is not in the public interest that any of their
conversations or communications, or any documents or reproductions,
concerning such advice be disclosed, you will instruct employees
of your Department that in all of their appearances before the
Subcommittee of the Senate Committee on Government Operations
regarding the inquiry now before it they are not to testify to any
such conversations or communications or to produce any such documents
or reproductions. This principle must be maintained regardless of who
would benefit by such disclosure.
“I direct this action so as to maintain the proper separation
of powers between the Executive and Legislative Branches of the
Government in accordance with my responsibilities under the
Constitution. This separation is vital to preclude the exercise of
arbitrary power by any branch of Government.”
The Eisenhower letter also stated that “throughout our history the
President has withheld information whenever he found that what was
sought was confidential or its disclosure would be incompatible with
the public interest or jeopardize the safety of the Nation.” The
letter gave the impression that from George Washington down, a number
of Presidents had taken action analogous to the silencing of John
Adams.
How was the “public interest or the safety of the Nation” to be
jeopardized by Army Counsel John Adams’ telling of a meeting on
strategy to curb Senator McCarthy’s investigations?
If this Eisenhower letter was “to preclude the exercise of arbitrary
power by any branch of Government,” then who was to stop the
executive branch from such arbitrary silencing of witnesses?
Were the Army-McCarthy investigating committee and other committees
of Congress to be barred from obtaining information on all
“conversations or communications, or any documents or reproductions,
concerning advice” within the executive branch?
These were the questions that immediately arose in the minds of
Senator Jackson, Senator Symington, and Senator John L. McClellan,
the Arkansas Democrat. Senator Everett Dirksen, the honey-voiced
Illinois Republican, and Karl Mundt, the South Dakota Republican
who was serving as chairman, also expressed some concern, although
privately.
Stern-faced Senator McClellan was not awed by the popularity of
President Eisenhower or by the fact that Senator McCarthy was a
highly unpopular figure at that point. He declared that if the
barrier to any testimony on the January 21 meeting prevailed, then it
would be impossible to establish whether John Adams, Army Secretary
Stevens, or some higher officials were responsible for directing
actions complained of by Senator McCarthy, Roy Cohn, and Private
Schine.
“If the committee is going to be left in a dilemma of not knowing
whether the Secretary [Stevens] is responsible for the action taken
after that date [January 21], or whether the responsibility is at a
higher level, then we will never be able to completely discharge our
responsibility in this proceeding,” Senator McClellan said.
Senator Jackson expressed the view that the secrecy policy left the
committee “in a dilemma of passing on testimony that is incomplete.
I think ... that the Executive Branch is doing a great injustice
to this committee and to all of the principals in this controversy
by exercising the power which the President has, very late in the
proceedings.”
There was no question that President Eisenhower’s letter had stalled
the hearings at a crucial moment. If witnesses could not testify on
an essential point, then there was little more that could be learned.
“I must admit that I am somewhat at a loss as to know what to do at
the moment,” Senator McCarthy said. “One of the subjects of this
inquiry is to find out who was responsible for succeeding in calling
off the hearing of Communist infiltration in Government. That the
hearing was called off, no one can question.”
McCarthy continued: “At this point, I find out there is no way of
ever getting at the truth, because we do find that the charges
were conceived, instigated, at a meeting [of January 21] which was
testified to by Mr. Adams.
“I don’t think the President is responsible for this,” the Wisconsin
Republican said in expressing his views that others had conceived
the idea of silencing Adams and had merely obtained President
Eisenhower’s signature to accomplish their purpose. “I don’t think
his judgment is that bad.”
“There is no reason why anyone should be afraid of the facts, of the
truth, that came out of that meeting,” Senator McCarthy thundered.
“It is a very important meeting. It doesn’t have to do with security
matters. It doesn’t have to do with national security. It merely has
to do with why these charges were filed.
“The question is ... how far can the President go? Who all can he
order not to testify? If he can order the Ambassador to the U. N.
[Henry Cabot Lodge] not to testify about something having nothing to
do with the U. N., but a deliberate smear against my staff, then ...
any President can, by an executive order, keep the facts from the
American people.”
Senator McCarthy brought up the 1952 campaign in which government
secrecy had been a key issue: “I do think that someone ... should
contact the President immediately and point out to him ... that he
and I and many of us campaigned and promised the American people
that if they would remove our Democrat friends from control of the
Government, then we would no longer engage in Government by secrecy,
whitewash and cover-up.”
It was a pathetic plea from a man who by now had completely destroyed
his public image by his own brutal performance. His voice was
raucous. His heavy beard gave him a rough, almost uncouth appearance
despite his efforts to modify it by shaving during the noon recess.
Still, he hammered on. “I think that these facts should be brought
to the President because the American people will not stand for such
as this, Mr. Chairman. They will not stand for a cover-up halfway
through a hearing.”
Seldom had there been more right on the side of McCarthy, but seldom
had there been fewer people on his side. Many people who at first had
been inclined to approve Joe McCarthy as “doing some good against
the Communists,” had been antagonized by his television image. Many
editorial pages of a press that was normally much more objective had
developed an attitude that anything that is bad for Joe McCarthy is
good for the country.
Public sentiment against him was so strong that I did not believe
it could have been changed to his favor—even if the committee had
succeeded in eliciting testimony on the January 21, 1954, meeting
and no matter how embarrassing it might have been to the Eisenhower
administration.
There remained, nevertheless, the possibility that the Eisenhower
letter could be used again. I was shocked at the wording of it.
On the face of it, it seemed to extend the claim of “executive
privilege” to prohibit Congress the access to _any_ records or
testimony that might involve communications within the executive
branch. The letter was a directive with regard to excluding testimony
in one hearing—the Army-McCarthy hearing. However, it was certainly
broad enough that the Defense Department could use it to block any
investigation.
Moreover, if an administration could successfully block any probe of
high-level discussions in the Defense establishment, why couldn’t
it use that same “executive privilege” to block any investigation
in any other executive agency? The thought disturbed me. The Teapot
Dome scandals of the Harding administration could have been buried
if those officials had applied even the mildest interpretation of
“executive privilege” set down by President Eisenhower in the May 17
letter.
If cabinet officers and subordinate officials had refused to testify
about the Teapot Dome affair on grounds of “confidential executive
communications,” it could have stifled the entire investigation by
Senator Thomas Walsh, the Montana Democrat. Under the “executive
privilege” theory, Secretary of Navy Edwin Denby and Secretary of
Interior Albert B. Fall could have refused to give testimony or
produce records of events leading up to the leasing of the Teapot
Dome oil reserves. Fall’s crimes might never have been uncovered, and
he would have avoided the exposure and conviction.
Similarly, the tax scandals of the Truman administration could have
been buried by claiming that all papers except those involving
final decisions were “confidential executive communications.” It
had been vital to learn the nature of advice and recommendations of
both high-level and low-level officials on settlements of huge tax
cases. Attorney General J. Howard McGrath could have claimed that his
conversations with T. Lamar Caudle, the Assistant Attorney General in
charge of the Tax Division, were “confidential executive business.”
Caudle and White House Aide Matthew Connelly could have claimed that
their communications were “confidential executive business.” As it
was, the Caudle-Connelly communications were actually used as the
basis of criminal charges on which Caudle and Connelly were convicted
and sent to prison. A number of other officials of the Internal
Revenue Service were convicted on charges arising out of revelation
of the “advice and recommendations” they gave that were part of a
huge tax “fix” operation.
I talked to several members of the Army-McCarthy committee, and
with several of my newspaper colleagues, Democratic and Republican
senators alike were disturbed at this seemingly limitless claim for
“executive privilege.” They hoped that the Eisenhower administration
had written the letter for just this one hearing and had used the
broad language merely to avoid an impression that Senator McCarthy
was being singled out for special treatment. Among the newspaper
reporters the attitude was that Joe McCarthy was getting about what
he had coming to him; there was little concern over what use might be
made of the precedent in other investigations.
Many of the reporters had been misled by a memorandum that
accompanied the Eisenhower letter. It said, in effect, that President
Eisenhower was doing no more than George Washington and many other
Presidents had done. By invoking such names as George Washington and
Thomas Jefferson, the memorandum made it possible to pass off the
Eisenhower letter as a mere “clarification” of an old and settled
principle. A close reading of “the precedents” disclosed in fact
that President Washington actually _opposed_ withholding information
from Congress. (See Chapter I.) He once refused to deliver treaty
papers to the House but only because the Senate, not the House, had
jurisdiction to ratify treaties.
President Jefferson had taken papers into his personal custody in
connection with the Aaron Burr case, and thus defied the federal
court by declaring that the only way the papers could be reached
would be by impeaching him. He was right. The law is quite settled
on this point; neither the courts nor the Congress can compel the
President to testify or produce personal letters, papers, and
memorandums. President Jefferson eventually did send the documents
subpoenaed by Chief Justice Marshall. But even if Jefferson had
refused to produce these documents, it would hardly seem to be an
adequate reason for allowing a lawyer for the Army Department to
refuse to testify about a meeting with a cabinet officer and several
White House aides.
The late Ed Milne, of the Washington Bureau of the Providence
_Journal_, shared my concern. He and I each wrote stories
demonstrating how the Truman tax scandals and the Harding Teapot
Dome scandals could have been hidden forever if “executive privilege”
had barred testimony of all high-level conversations.
We also reminded our readers of the Republican reaction to the
ducking and evasion of the Truman administration between 1946 and
1952. Senator Homer Ferguson, the Michigan Republican, was chairman
of one of the committees that investigated the Truman administration
in the late 1940s. His chief counsel at the time was William P.
Rogers, who later became Eisenhower’s Attorney General and a chief
advocate of the ultimate in executive secrecy. Only a year before
Eisenhower’s election (September 27, 1951), Ferguson spoke out
bluntly on the issue of suppression of facts by the executive
departments: “It may be said that this practice of suppressing
information in the executive department got its big start back in
March, 1948. The Senator from Michigan [himself] was then chairman of
the Senate Investigations Subcommittee and was investigating things
that could be embarrassing to the administration. The subject of the
investigation was the operation of the Government’s loyalty program,
revolving around the case of William Remington.”
Senator Ferguson continued: “An executive order was issued, placing
certain files under the direct and exclusive jurisdiction of the
President. On occasion files were taken to the White House in order
that they could not be subpoenaed. In the course of our hearings, an
admiral was able to tell the Senator from Michigan, off the record,
the fact that because of an order by the President of the United
States he was not permitted to testify.”
As I have shown (in Chapter III), the Truman administration did
try to hide embarrassing facts from Congress. President Truman
issued an executive order placing certain personnel files under a
secrecy blanket, and on some occasions he ordered files delivered
to his personal custody at the White House so they could not be
reached by subpoena. His administration stalled investigations of
flagrant crimes for months. But President Truman never asserted any
constitutional right by which all high-level officials could claim an
“executive privilege” to refuse to testify or produce records.
The persistent, hard-hitting inquiries of Committee Counsel William
P. Rogers made the Truman administration so frantic in 1948 and 1949
that a staff lawyer in the Justice Department was asked to prepare
a memorandum on the precedents set by earlier Presidents who had
withheld information from Congress. However, that memorandum was
regarded as too insubstantial to use. The Truman administration
relied instead on ducking and dodging to avoid embarrassment. It
sensed correctly that the press and the public would have been
outraged if it had tried to pull down a total secrecy curtain in
the midst of investigations of the five percenters, the influence
peddlers, and the loyalty cases.
What Truman would not do, however, the highly popular President
Eisenhower did do. Ironically, his May 17 letter caused hardly a
ripple of criticism. On the contrary, most editorial pages praised
President Eisenhower for expressing some fine new theory on the U. S.
Constitution or wrote off the letter as an historically unimportant,
one-shot claim of secrecy.
I called one editor friend the day after such an approving editorial
appeared, and commented that the Eisenhower doctrine of “executive
privilege” could bar Congress from practically any executive papers
containing “opinions, advice or recommendations.”
“This will set the ‘Freedom of Information’ cause back fifty years,
if it is not criticized and stopped now,” I said.
My editor friend said he thought that there might have been some
loyalty file discussed at the January 21 meeting, and that this would
be a justification for refusing testimony.
I told him that no one had claimed that loyalty files were discussed,
and that if this had been the reason for the secrecy then it should
have been stated. Also, I pointed out that while discussion of a
loyalty file might give some justifications for limiting testimony,
the limitation should only cover that subject and not the whole
meeting.
The editor agreed with me that the broad language of the Eisenhower
letter constituted a dangerous precedent. But he didn’t believe that
any administration would ever try to invoke the total arbitrary
“executive privilege.”
Just how wrong events would prove him to be was not then easy to
predict. Indeed, the whole story of the Army-McCarthy hearings had
by this time taken second news billing to the United States Supreme
Court ruling on school segregation. The unanimous segregation
decision came out on May 17, 1954—the same date as the Eisenhower
letter to Wilson. That segregation decision now dominated discussions
of constitutional law. And the few persons who did stop to think
about the inherent threat in the broad use of secrecy could hardly
get emotional about it—as long as the only victims appeared to be
Senator McCarthy and his little knot of followers.
CHAPTER V
Another Blow at Senator Joe
When the Eisenhower administration took office in January 1953, I
had had high hopes that arbitrary government secrecy would be ended.
As a candidate, the President had talked much of his interest in
open government and had pledged to make all but national security
information available to the public. So had the Vice President,
Richard M. Nixon.
As late as November 6, 1953, Attorney General Herbert Brownell,
Jr., was continuing to stress the Republican party’s interest in
eliminating secrecy policies of the Truman administration. In
Chicago, before a convention of Associated Press Managing Editors,
Brownell said he was “very much aware of the great importance of
seeing to it that the obstacles to the free flow of information are
kept to an absolute minimum.
“I would like to call attention to some of the procedures which
we established,” Brownell said. “At the very outset of the new
Administration, we provided that any pardons or commutations of
sentence shall be a matter of public record. Throughout the prior
Administration, these executive actions were taken secretly, for
political purposes and over the objection of the Office of the Pardon
Attorney.
“We also started the policy of making a matter of public record
matters which our predecessors buried in secrecy, such as settlements
of all types of cases which we handle and involve monetary
considerations, such as tax claims, damage suits and Alien Property
settlements. We do not contend that we have achieved perfection in
our efforts to provide a full flow of information. But we are working
on it and each day find new ways to do our part.”
At this same meeting, Attorney General Brownell announced that
President Eisenhower was revoking a much criticized executive order
by President Truman dealing with defense information. He said
President Eisenhower was issuing a new order which “attains the
required balance between the need to protect certain types of defense
information, and the need for keeping the citizens of a republic as
fully informed as possible concerning what their government is doing.
“President Eisenhower considers the free flow of information from
the Government to the people to be basic to the good health of the
Nation,” Brownell told the editors. He declared that under the
Truman administration there “was a tendency to follow the dangerous
policy heretofore used by dictator nations of authorizing government
officials to use the term ‘National Security’ indiscriminately, and
thereby throw a veil of secrecy over many items which historically
have been open to the public in this country.”
The Attorney General said he viewed the new Republican policy as
an opportunity to “demonstrate to all the world the vivid contrast
between our system of government, which believes in and practices
freedom of the press, and the Communist system, which regards the
concept of freedom of information as a threat to the continuance of
its tyrannical rule.”
Such attitudes in November 1953 were difficult to reconcile with
those of May 1954, when the same Attorney General was helping fashion
a policy that was more devastating to a free flow of information
than simply refusing to give information to the press. The May 17,
1954, letter from President Eisenhower to the Defense Department
said in essence that any high officials of the Defense establishment
might refuse to produce records or testify even when subpoenaed by a
properly constituted congressional committee that was acting within
its jurisdiction.
The Army-McCarthy hearings that had given rise to the famous letter
ended on June 17, 1954. However, it was not necessary to wait for
the official reports made public on October 30, 1954, to know that
Senator McCarthy was finished as a political power—and that the
administration would use the “executive privilege” precedent again.
As an aftermath of the Army-McCarthy hearings, a charge was filed
that Senator McCarthy had conducted himself in a manner “unbecoming
a member of the United States Senate.” And on August 2, 1954, the U.
S. Senate decided by the overwhelming vote of 75 to 12 to investigate
Senator McCarthy’s conduct.
Senator Arthur V. Watkins, a Utah Republican, was named chairman of
the select McCarthy Censure Committee to determine recommendations
on Senator McCarthy’s conduct. In barely more than a month Chairman
Watkins ran smack into a roadblock of “executive privilege.”
The subject of inquiry was Senator McCarthy’s severe tongue lashing
of Brigadier General Ralph Zwicker, of Camp Kilmer, N. J. Major
General Kirke B. Lawton, a former commanding general of Fort
Monmouth, N. J., refused to testify about conversations with General
Zwicker. He claimed “executive privilege” under the May 17, 1954,
letter from President Eisenhower.
Edward Bennett Williams, who was serving as counsel for Senator
McCarthy, questioned the applicability of the May 17 letter: “Don’t
you know, General, that order of May 17, 1954, referred only to the
Government Operations Committee and the hearing then in session which
was commonly known as the Army-McCarthy hearing?”
General Lawton replied that he had been advised that the May 17
letter “not only applied to the so-called Mundt committee [the
Special Committee for the Army-McCarthy hearings] but it applies to
this or any other.”
Chairman Watkins excused General Lawton and wrote Defense Secretary
Charles E. Wilson asking clarification. Defense Secretary Wilson
replied that Generals Lawton and Zwicker would be allowed to testify
and produce documents unless their action would be “in violation of
national security regulations or a violation of the President’s order
of May 17, 1954.”
There could be little doubt now that the Defense Department intended
to make the May 17, 1954, letter a part of its basic doctrine with
all of the great blanket of secrecy that this would provide. I was
now more concerned than ever, for I had hoped that the May 17 letter
was the one-shot secrecy claim that so many of my colleagues thought
it was. But again the name of Joe McCarthy was mixed up in the
investigation, and in 1954 it would have been difficult to get any
cool thinking on a subject that remotely touched on the controversial
Wisconsin Republican.
Still, I couldn’t help worrying that the new and expanded doctrine
of “executive privilege” was just too convenient a cover for those
who wished to hide their activities from Congress, the press, or the
public. It could be used by the incompetent as well as the corrupt.
This doctrine of an “inherent right” of persons in the executive
departments to refuse testimony or documents threatened our whole
system of government. It seemed a naked claim of an authority
for unlimited secrecy, without regard for laws or the spirit of
a democracy. By claiming a right to withhold all information on
opinions, conclusions, recommendations, or suggestions, this doctrine
could allow the secrecy blanket to be dropped over virtually every
document in most agencies, for there are few governmental documents
that do not contain some opinions or suggestions. It carried within
it, in short, the seeds of dictatorship.
It seemed strange to me that this doctrine would be set forth in
the administration of a President who would be regarded as one
of the mildest Chief Executives, and certainly one of the least
inclined toward dictatorial action. I was not worried that President
Eisenhower would try to use it as a tool for totalitarianism.
But with this doctrine in force a man who was inclined toward
totalitarian methods might readily administer the laws as he pleased.
CHAPTER VI
Secrecy Fix on Dixon and Yates
Not until the summer of 1955 did it become apparent that the May 17,
1954, Eisenhower letter would be used on matters unrelated to Senator
Joseph R. McCarthy. Throughout the fall and winter of 1954, I spoke
and wrote about the potential danger of “executive privilege” as it
had been applied in the Army-McCarthy hearings and in the McCarthy
censure hearings. A few persons saw it my way. But the general
tendency to believe that the letter was written solely to deal with
Senator McCarthy held fast, and a general faith prevailed that the
Eisenhower administration would not use it to cover up mistakes,
corruption, or improprieties.
Then suddenly, in June 1955, the White House reinvoked the letter
as justification for refusing to make records available to a Senate
committee investigating the Dixon-Yates contract.
First, Budget Director Rowland R. Hughes used “executive privilege”
to conceal testimony and documents requested by Senator Estes
Kefauver, the Tennessee Democrat in charge of the investigation.
Then J. Sinclair Armstrong, the chairman of the Securities and
Exchange Commission, used “executive privilege” to justify his
refusal to disclose conversations with Presidential Assistant Sherman
Adams relative to postponing a hearing on Dixon-Yates financing.
Also, Sherman Adams claimed the “privilege” not to be required to
testify about his talks with Armstrong or about other activity in the
Dixon-Yates contract development.
At last a few of the Democrats who had been only too glad to see
“executive privilege” invoked against Senator McCarthy opened their
eyes. The realization of the danger dawned too late, however, for it
would take more than a few weeks to upset a precedent that only a
year earlier had been generally viewed as praiseworthy.
While the Army-McCarthy hearings and the McCarthy censure affair
dominated the news, top-level officials in the Eisenhower
administration had been quietly at work arranging for the Mississippi
Valley Generating Company to furnish 600,000 kilowatts of electricity
to the Tennessee Valley Authority. The Mississippi Valley Generating
Company contract ultimately became known as the “Dixon-Yates”
contract because of the two men responsible for its creation. They
were Edgar H. Dixon, president of Middle South Utilities, Inc., and
Eugene A. Yates, chairman of the board of The Southern Company. Both
firms act as holding companies for utilities operating in Arkansas,
Georgia, Louisiana, Mississippi, and Alabama. Dixon and Yates joined
forces to create the Mississippi Valley Generating Company, an
operating subsidiary in West Memphis, Ark. The Dixon-Yates contract
was reported to be for the purpose of replacing power in the
Tennessee Valley Authority area that was used by the Atomic Energy
Commission.
Lewis L. Strauss, then chairman of the Atomic Energy Commission
(AEC), and Joseph Dodge, then Director of the Budget, were active in
pushing this contract. Chairman Strauss pushed it despite the fact
that a majority of the Atomic Energy Commissioners were opposed to
such a contract on grounds there was no Atomic Energy Commission
installation near West Memphis, Ark., and the power was to be used in
Memphis, Tenn.
The Eisenhower administration had opposed the Tennessee Valley
Authority proposal to build a steam plant at Fulton, Tenn., with
a capacity of 500,000 kilowatts to provide for the power needs of
Memphis, plus a surplus for industrial expansion. Budget Director
Dodge opposed the Fulton steam plant and axed the 90 million dollars
requested from the budget in 1953. Gordon Clapp, at that time
chairman of the TVA, then asked that to offset the loss of the Fulton
steam plant the AEC consumption of TVA power be cut sharply. It was
at this point that Budget Director Dodge turned to the AEC in an
effort to get that agency to find ways to obtain power from a private
company.
The Dixon-Yates contract idea developed over a period of months in
1953 and early 1954. Dozens of conferences were held in which one
of the important figures was Adolphe Wenzell, a vice president and
director of the First Boston Corporation. Wenzell was an engineer
and an expert in the cost of construction of public utility plants.
From May 20, 1953, to September 3, 1953, he made studies and issued
reports on TVA power plant costs. In January 1954, Rowland R.
Hughes, then Deputy Director of the Budget, asked Wenzell to assist
the Budget Bureau on the Dixon-Yates contract. Wenzell agreed and,
until April 10, 1954, continued to participate in the Dixon-Yates
negotiations.
Wenzell continued to draw his salary from First Boston Corporation,
and received travel costs and a per diem allowance from the
government for his services for the Budget Bureau. Since First Boston
Corporation was slated to be underwriter of the Mississippi Valley
Generating Company, a question was raised by his associates about
the propriety of Wenzell’s services to the Budget Bureau and to
First Boston—a firm that had a pecuniary interest in the Dixon-Yates
contract agreement.
As the Dixon-Yates contract moved toward completion, a lawyer for the
law firm of Sullivan & Cromwell told Wenzell that before First Boston
should take part in the financing for Dixon-Yates, Wenzell “should
make clear that he had severed his entire relations with the Bureau
of the Budget.”
In the summer of 1954, a few complaints were raised about the
Dixon-Yates contract. There was also opposition to the Dixon-Yates
contract within the Tennessee Valley Authority as well as by a
majority of the Atomic Energy Commissioners. But on June 16, 1954,
Rowland Hughes, by then promoted to Director of the Budget, wrote to
the Atomic Energy Commission:
“The President has asked me to instruct the Atomic Energy Commission
to proceed with negotiations with the sponsors of the proposal
made by Messrs. Dixon and Yates with a view of signing a definite
contract.”
The contract was signed, and in the following weeks the number of
Democratic complaints mounted. The complaints hit a number of points.
The Democrats contended that the Dixon-Yates contract could cost the
government from 107 million to 120 million dollars over a period of
twenty-five years, but that in the end the government wouldn’t own
the plant. This was compared to the 90 million cost for the Fulton
steam plant which the TVA wanted to construct.
The debate revolved largely around the question of private versus
public power (or TVA). Many Democrats held that the Eisenhower
administration was allowing the public treasury to be milked by Big
Business in the same fashion the Harding administration had permitted
the exploitation of Navy oil reserves in the Teapot Dome scandals.
Democratic National Chairman Stephen Mitchell hit a sensitive nerve
in early August 1954 when he implied that President Eisenhower had
direct responsibility for the Dixon-Yates contract. He charged that
one of President Eisenhower’s golfing associates was a director of
The Southern Company, one of the two holding companies that had
established the Mississippi Valley Generating Company. Mitchell’s
office identified the man as Bobby Jones, former amateur and
professional golfing champion. No evidence was ever produced to
support the insinuation that Jones influenced Dixon-Yates decisions.
President Eisenhower was furious that his associations would be
subject to such charges, and in his August 17, 1954, press conference
he offered to disclose all the events leading up to the Dixon-Yates
contract.
“Any one of you here present might singly or in an investigation
group go to the Bureau of the Budget, or to the Chief of the Atomic
Energy Commission, and get the complete record from the inception of
the idea [of the Dixon-Yates contract] to this very minute, and it is
all yours.”
Four days later, on August 21, 1954, the Atomic Energy Commission
released what was purported to be a full chronology of all events in
the development of the Dixon-Yates contract. The names of Wenzell and
Paul Miller, assistant vice president of First Boston Corporation,
had appeared in an original draft. However, the names of both of
these First Boston Corporation officials—Wenzell and Miller—were
eliminated from the chronology that was given to the press.
On the surface, it appeared that President Eisenhower had met charges
of improper activity with a frank and open report on the whole record
of the Dixon-Yates contract. Not until February 18, 1955, did anyone
charge that the chronology was not a full truthful report. On that
day, Senator Lister Hill, the Alabama Democrat, made a Senate speech
in which he charged Wenzell with a dual role in the Dixon-Yates
negotiations. He questioned the propriety of Wenzell’s being a
financial adviser to Dixon-Yates while at the same time serving as an
adviser to the United States Government on the Dixon-Yates contract.
Spokesmen for the Eisenhower administration such as Budget Director
Rowland R. Hughes denied there was any dual role by Wenzell in the
Dixon-Yates contract. As late as June 27, 1955, Budget Director
Hughes testified before a Senate committee that “I was told it was
not true.” He said he didn’t know that First Boston had anything to
do with the financing of Dixon-Yates.
The speech by Senator Hill caused understandable concern in the White
House and among the top officials of the First Boston Corporation.
Revelation of a “conflict of interest” could spoil the entire
107-million-dollar contract and its profits for First Boston. It
could undo what President Eisenhower and many top subordinates deemed
an important block to the spread of the Tennessee Valley Authority.
Of immediate importance was a 6.5-million-dollar appropriation
slated to go to the House of Representatives on June 13, 1955.
The appropriation was for a transmission line from the Tennessee
Valley Authority to the point where it would pick up power from
the Mississippi Valley Generating Company in the middle of the
Mississippi River.
On June 11, 1955, Sherman Adams telephoned to J. Sinclair Armstrong,
chairman of the Securities Exchange Commission. He requested that the
SEC hold up hearings on debt financing of the Dixon-Yates contract
until after the House had finished work on the 6.5-million-dollar
appropriation. Wenzell was among the witnesses scheduled to testify
before the SEC, and testimony on Wenzell’s full role in Dixon-Yates
could have had a devastating impact on the appropriation. The
hearings were postponed.
Finally, on June 28, 1955, Budget Director Hughes revealed that the
Eisenhower administration was going to try to pull down the secrecy
curtain on the investigation of Dixon-Yates. The claim of “executive
privilege” was to be the vehicle.
Hughes was being questioned by Senator Estes Kefauver, regarding a
request for the opportunity to examine all memoranda, documents, and
reports pertinent to the Dixon-Yates contract. By this time it was
abundantly clear to the Kefauver subcommittee that the chronology
released on August 21, 1954, was intentionally incomplete.
Indirectly Hughes moved to “executive privilege.”
“As pointed out to you,” he told Senator Kefauver, “we operate under
the President’s general instructions with regard to interoffice and
intraoffice staff material, that such material is not to be made
public.
“All documents which involve final decisions of public policy have
of course already been made public,” Hughes said in an effort to
give the impression that the administration had complied with the
President’s pledge of frankness. “You [Kefauver] pointed out that
you interpreted the President’s statement at a press conference last
fall to indicate that they [the “executive privilege” claims] did not
apply to this case. I have checked on this matter and I am authorized
by the President to state that his general instructions stand but
that we, of course, stand on the decision to make every pertinent
paper or document that can be made public under this ruling available
to you.”
Hughes was trying to give an impression of frankness, while at the
same time reserving to the administration the right to withhold any
Dixon-Yates information they wished to regard as “interoffice and
intraoffice staff material.” Hughes continued:
“A quick review of our files last night disclosed no other papers or
documents to be added to the somewhat voluminous releases already
made, but we shall make a full and careful search in the next few
days to confirm this or to pick out material, if any, which should be
added to that previously released.”
Hughes had left the Eisenhower administration an “out” on any
omissions of material. Next he sought to absolve Wenzell from any
connection with the Dixon-Yates contract.
“We have also reviewed the report which Mr. Wenzell made as an
adviser in September, 1953, and find that that had nothing to do
with the Dixon-Yates contract and, as a confidential document under
the general ruling [of “executive privilege”], therefore cannot be
made available to your committee.”
Although Hughes concluded with a promise to “co-operate where we can
do so properly,” he made it clear the Eisenhower administration was
still going to use the “executive privilege” claim to secrecy if it
wanted to refuse testimony or records.
Up to this time, high administration officials had deleted
information, twisted the record, engaged in half truths and full
deception to obscure the story of the Dixon-Yates contract. Now they
were seeking to use the name of President Eisenhower, and give the
impression that some constitutional principle was involved in hiding
the records.
Senator Kefauver took to the Senate floor to lash out at
the concealment of records and testimony in the Dixon-Yates
investigation. At the presidential press conference on June 30, 1955,
Frank Van De Linden, of the Nashville _Banner_, forced the issue with
President Eisenhower:
“Senator Kefauver charged on the Senate floor yesterday that the
Budget Bureau was trying to conceal what he called a scandal in the
Dixon-Yates contract negotiation regarding the employment of Mr.
Adolphe Wenzell, of the First Boston Corporation,” Van De Linden
said. “Senator Knowland says there is no corruption in it, and that
he thinks you were just trying to help the Tennessee Valley get some
power. I wonder if Mr. Hughes, of the Budget Bureau, had cleared with
you his refusal to give Mr. Kefauver the information he was asking
down there?”
President Eisenhower answered: “Mr. Hughes came to see me, went over
the situation, and I repeated the general instructions—I think that
I expressed some in front of this body—that every single pertinent
paper in the Yates-Dixon contract, from its inception until the final
writing of the contract, would be made available, I think I said, at
that time to the press, much less to any committee.”
After seeming to approve an open record, he then qualified it: “Now,
I do stand on this: Nobody has a right to go in and just ... wrecking
the processes of Government by taking every single file—and some of
you have seen our file rooms and know their size—and wrecking the
entire filing system and paralyzing the processes of Government while
they are going through them.”
The President rambled on: “There are—these files are filled with
every kind of personal note—I guess my own files are filled with
personal notes from my own staff all through; they are honeycombed
with them. Well, now, to drag those things out where a man says to
me, ‘I think so-and-so is a bad person to appoint, to so-and-so, and
you shouldn’t have him,’ all he had was his own opinion. You can’t
drag those things out and put them before the public with justice to
anybody, and we are not going to do it.”
President Eisenhower had engaged in a lot of conversation unrelated
to the information sought. Now he indicated that he personally
believed that officials of his administration had already put out all
pertinent documents:
“At the time that I gave those instructions, Mr. Hughes and Mr.
Strauss, whoever else was involved, got together every single
document that was pertinent to this thing and put it out.”
The President concluded with a complete approval of the Wenzell role:
“Now, as far as the Wenzell report, Mr. Wenzell was never called
in or asked a single thing about the Yates-Dixon contract. He was
brought into—as a technical adviser in the very early days when none
of us here knew about the bookkeeping methods of the TVA or anything
else. He was brought in as a technical adviser and nothing else and
before this contract was ever even proposed.”
President Eisenhower seemed to have no information about Wenzell’s
role after January 1954. His comments seemed completely contrary
to the testimony already taken before the Kefauver Subcommittee on
Antitrust and Monopoly. I followed up the Van De Linden question.
“Mr. President,” I said. “A little while ago you stated that Mr.
Wenzell was never called in about the Yates-Dixon contract, and there
seemed to be some testimony before the SEC and before a committee
that he served as a consultant. I wonder if you were—”
The President cut in to answer that “He [Wenzell] did serve as a
consultant at one time.”
“Of Dixon-Yates?” I asked it fast.
“No; I think—now, I will check this up,” the President started. “My
understanding is that quickly as the Dixon-Yates thing came up he
resigned, and we got as our consultant a man named Adams from the
Power Commission here itself to come over and be consultant so as
to have him because he [Wenzell] was connected with a great Boston
financial company.”
“Mr. President,” I asked. “Had you been informed that he had no
connection at all with the Dixon-Yates—?”
“My understanding of it, and it may have been—that part of it there
may have been—an overlap of a week or two, there I am not sure of,”
President Eisenhower answered. It was difficult to understand he had
so little information on the key issue at this late date.
“Would there be any change in your position on that if there was
material that he [Wenzell] had served as a consultant on that
[Dixon-Yates]?” I asked.
“If he had served as a consultant on that [Dixon-Yates] and brought
in a definite recommendation to us I would be very delighted to
make that public,” President Eisenhower answered. “But I just don’t
believe there is a thing in it about it. However, I will have it
checked again.”
Noting the press conference statement, Senator Kefauver fired off a
quick letter to President Eisenhower:
“My Dear Mr. President: I have just been informed that in answer to
questions of the press today you are recorded as saying that Mr.
Adolphe H. Wenzell was never called in or asked a single thing about
the Dixon-Yates contract, and that as quickly as the Dixon-Yates
matter came up Mr. Wenzell resigned. However, you say you will have
it checked again.”
Then Senator Kefauver followed up with a careful chronological study
of the testimony of Wenzell and other key officials in the Eisenhower
administration which showed that Wenzell had been a consultant
on the Dixon-Yates contract. It also showed that high Eisenhower
administration officials knew, or should have known, the precise role
that Wenzell had filled.
At his next press conference, on July 6, 1955, President Eisenhower
said Wenzell’s role was perfectly “proper” in Dixon-Yates, but
indicated there was a chance the contract might be canceled.
Senator Kefauver sought an explanation of the Sherman Adams calls to
the SEC that had postponed hearings on the financial arrangements
for Dixon-Yates at the crucial point before the House took up the
appropriation measure.
On July 21, Adams refused to testify before the Kefauver
investigating subcommittee. In a letter to Senator Kefauver he
stated that he could not give testimony because of his confidential
relationship to the President, and also because “every fact as to
which I might give testimony either has been or could be testified to
fully by other responsible government officials.”
The same day Kenneth Fields, general manager of the Atomic Energy
Commission, wrote to Kefauver declining to furnish documents on
ground they were “privileged communications within the executive
branch.” Earlier, SEC Chairman Armstrong had made his first refusal
to testify on his conversations with Sherman Adams.
Senator Kefauver replied to Adams that there had been consistent
claims of “executive privilege” that barred the investigators from
obtaining the truth.
“No official of the Government,” the Senator wrote, “no matter how
high his position can properly claim privilege when a committee of
Congress is seeking the facts in respect to corruption.”
Senator Kefauver stated: “In these circumstances a claim of privilege
is tantamount to suppression of evidence of possible crime and
corruption. Not even the privilege of attorney-client can be used for
such a nefarious purpose.”
Sherman Adams hid out behind the protective walls of the White
House, unavailable for questioning by Congress and unavailable
for questioning by the press. “Executive privilege,” as smoothly
practiced by the Eisenhower administration, made it appear that
Adams was invulnerable to attack, or even questioning, on any of his
activities. Perhaps he _was_ the cold and clean New Hampshire granite
of the legend of Sherman Adams. Perhaps he _was_ the dispassionate,
efficient barrier against the corrupting influences of personal and
political favoritism. But, even if Sherman Adams were the puritanic
guardian of good government as pictured, the idea of surrounding any
man’s activities with such arbitrary secrecy was a bad principle.
It was an open invitation to misuse of power and influence that few
could withstand.
At the July 27, 1955, press conference I questioned President
Eisenhower to determine what he knew of the activities of Sherman
Adams in the Dixon-Yates affair.
“Mr. President,” I said. “There has been testimony of the SEC
Chairman [J. Sinclair Armstrong] that Sherman Adams intervened before
the SEC, which was a quasi-judicial body. Testimony was given by the
chairman on that score.
“The Democrats are contending that there was something improper in
intervening with any quasi-judicial body. I wonder if you looked into
that and if you have any comment you would like to make about it.”
The President replied that he had “looked into it only to this
extent: I am sure that Mr.—head of the commission—has given the
entire story. I understand that he is back before the committee. And
certainly if he has omitted any details, he should give them now.”
The President continued: “And I believe that Governor Adams has
informed the Senate committee that he hasn’t a single detail to add;
that the story has been told and that is all there is to it.”
Garnett Horner, the White House reporter for the Washington _Star_,
came in with another question:
“In connection with the Dixon-Yates matter, and in view of the fact
that the Senate investigation subcommittee recently brought out the
first time the part played in initiating the Dixon-Yates contract by
Adolphe Wenzell, of the First Boston Corporation, which corporation
later became the financing agent for Dixon-Yates. In view of all
that, do you believe your directions last summer for disclosure of
the complete record in the case were carried out by the agencies [the
Bureau of the Budget and the Atomic Energy Commission] concerned?”
President Eisenhower replied: “Well, I didn’t know that anyone
had alleged that he [Wenzell] was the initiator, because no such
statement has ever been made to me.
“But what I have done is this: I have gotten back Mr. Dodge, who
was Director of the Budget when all this was done, when the 1954,
I believe, policy on this statement, on this whole proposition was
made, and he is going now before one of the committees.”
The President turned to Press Secretary James C. Hagerty to ask:
“Isn’t that correct?”
Hagerty answered, “Yes, sir.”
The President continued: “He [Dodge] is going down before one of the
committees with instruction to do this: to tell every possible item
that has anything whatsoever to bear on Dixon-Yates, and see whether
we can get the whole list of information properly coordinated and
placed before the people that are investigating it.”
President Eisenhower still had not answered the question relative to
whether he knew that his August 1954 order on complete disclosure on
Dixon-Yates had been violated. I followed up the question of Garnett
Horner:
“I hate to go back to Dixon-Yates again, but there was one thing I
don’t think was completely clear. There were some AEC officials,
Mr. Fields and Mr. Cook, who testified that Mr. Wenzell’s name was
knowingly eliminated from the Dixon-Yates chronology; and, of course,
they stated this was on the recommendations of the Bureau of the
Budget.
“I wonder if you knew anything of this, and if you did know of it, if
you would like to comment on whether you thought it was important.”
[On July 21, 1955, Kenneth E. Fields, general manager, Atomic
Energy Commission, and Richard W. Cook, deputy general manager,
Atomic Energy Commission, testified before the Senate Judiciary
subcommittee. Fields identified Cook as the man who prepared the
chronology.
“The Bureau of the Budget suggested that we leave them (the names
of Wenzell and Miller) out,” Cook said in answer to a question from
Senator Joseph O’Mahoney.
“I can assure you that we did not try to conceal anything,” Cook
continued. “They just called to our attention certain minor entries
that ... didn’t appear to be appropriate.”
“So they suggested no other names that you leave out except Wenzell
and Miller?” Senator Kefauver asked.
“No; not that I recall,” Cook answered.]
The President knew little about the Dixon-Yates contract even at this
late date, more than a year after it had first been criticized by
Democrats. His answer reflected his lack of knowledge, as well as his
desire to shut off further questions.
“I don’t intend to comment on it any more at all,” he said. “Now,
I think I have given to this conference time and again, the basic
elements of this whole development, and everything I could possibly
be expected to know about it.
“I said Mr. Dodge, who initiated this whole thing, is going down
before the committee to again begin the process of taking this thing
from its inception and following it through until he turned [it] over
to Mr. Hughes, and I believe that Mr. Hughes is to be there if they
want him again.
“Now, they [Dodge and Hughes] can tell the entire story, and I don’t
know exactly such details as that. How could I be expected to know? I
never heard of it.”
It would have been difficult to imagine a case that dramatized
more clearly the bad government that could fester under arbitrary
executive secrecy. President Eisenhower had issued an order for a
full chronology of events leading up to the Dixon-Yates contract,
but, instead, his subordinates had put out a record edited to
eliminate the names of persons involved in a “conflict of interest.”
The secrecy deceived the public, deceived the committee of Congress,
and even deceived President Eisenhower. His comments over the period
of months showed that his subordinates had misled or deliberately
deceived him on the key point in the controversy—the role of Adolphe
Wenzell. In this respect the secrecy possible under “executive
privilege” worked against the best interests of President Eisenhower.
Apparently his subordinates thought they could distort the record,
and keep it hidden from the public and the President. Only the
persistent work of Senator Kefauver’s investigators pulled loose
sufficient facts to document the deception.
President Eisenhower might have been able to sell the Dixon-Yates
contract to the public if it had been handled as a simple debate
of private power versus public power. But he could no longer see
it through once he had been forced to take note of a “conflict of
interest” that he had previously denied existed.
Cancellation of the Dixon-Yates contract did not end the Eisenhower
administration’s problem with that ill-fated venture. It was to be a
major factor in 1959 in blocking the nomination of Lewis L. Strauss
as Secretary of Commerce.
In November of 1955, William Mitchell, counsel for the Atomic Energy
Commission, made a report stating: “It appears that Wenzell, while
having a conflicting private interest, acted as one of the principal
advisers of the government” in the negotiating of the Dixon-Yates
contract. Mitchell called attention to the many meetings in which
Wenzell had taken part as a government official in the first four
months of 1954.
“The matters on which Wenzell was advising the contractor
[Dixon-Yates] were the same on which he had been employed to advise
the government,” Mitchell stated officially for the AEC.
When the government canceled the contract on grounds of a “conflict
of interest,” the Dixon-Yates group claimed that tremendous
expenditures had already been made on the contract. When Dixon and
Yates sued the government for $3,534,788, the Justice Department
was forced to go to court with legal briefs and facts to support
the government contention that Wenzell’s role was a “conflict of
interests.”
Thus Attorney General Brownell’s department was in court to give
evidence of an impropriety that President Eisenhower had said did not
exist.
Less than a year later, on August 11, 1956, Senator Estes Kefauver
and Senator Joseph O’Mahoney, the Wyoming Democrat, insisted on
action against those engaged in concealing the facts.
Senator Kefauver charged that Sherman Adams and other “high officials
of the Eisenhower administration” violated the criminal law in
their handling of the Dixon-Yates contract. He named the other
high officials as Lewis L. Strauss, chairman of the Atomic Energy
Commission and the President’s adviser on atomic energy matters;
Rowland R. Hughes, former Director of the Budget; and J. Sinclair
Armstrong, chairman of the SEC.
In asking Attorney General Herbert Brownell to present the matter to
a federal grand jury, Kefauver commented:
“Indictments and convictions have been obtained under Section 371
of Title 18 of the United States Code in cases involving similar
circumstances. The offense under this section of the Criminal Code
is that of conspiring to defraud the United States Government.
The essential ingredient of the offense under this section of the
Criminal Code is the failure of a government official to discharge
conscientiously the duties of his office and administer Federal law
in an unbiased manner.”
Kefauver continued: “In this case there exists substantial evidence
indicating that Mr. Adams, Mr. Hughes and Mr. Strauss deliberately
attempted to conceal the conflict of interest growing out of Mr.
Wenzell’s dual role in the Dixon-Yates deal—a conflict which the
President’s own Attorney General now labels so contrary to public
policy as to render the agreement null and void.”
Senator O’Mahoney characterized the Dixon-Yates matter as violating
“every concept of decent government and fair and impartial
administration of applicable law.”
The stentorian-toned Wyoming Senator gave a “partial listing of the
wreckage left strewn in the path” of Dixon-Yates!
1. “The independent character of the Atomic Energy Commission and the
Tennessee Valley Authority was brought into serious question.
2. “Officials of the Department of Justice and the Securities and
Exchange Commission were placed in the position of having been
persuaded to take legal positions which ran counter to precedent of
many years standing.
3. “The administration of the law by SEC was brought into disrepute
because of SEC’s flagrant departures from accepted interpretations
of the Public Utility Holding Company Act and its succumbing to
pressures from ‘higher authority’ emanating from the White House.
4. “AEC was forced to execute and sponsor a contract which the
Department of Justice has since asserted violated the Holding Company
Act, the Atomic Energy Act, and the conflict of interest statutes.”
O’Mahoney said that there “is no way that we can ascertain the full
facts” because “the Subcommittee has been completely blocked from
getting to the bottom of the Dixon-Yates contract by the very men in
the White House who were involved in these negotiations.”
After this debacle, it surprised me more than ever to discover that
few people saw the full evil of the broad principle of “executive
privilege” as set out in the May 17, 1954, letter.
There was still a general lack of awareness of the possible
dictatorial power lurking behind the secrecy curtain.
As I have said, I did not believe that President Eisenhower would
knowingly use secrecy to cover crimes, but I had doubts about some
people in his administration. Even if it could be assumed that
every member of his administration was totally honest, “executive
privilege” was still too potentially dangerous a doctrine to have in
force.
It was not until January 9, 1961, that the Supreme Court of the
United States stated the final words on the Dixon-Yates contract.
Chief Justice Warren delivered the opinion of the Court that Adolphe
H. Wenzell had been involved in a “conflict of interest” which was a
violation of the law (18 U.S.C. 434).
The law states: “Whoever, being an officer, agent or member of,
or directly or indirectly interested in the pecuniary profits or
contracts of any corporation ... is employed or acts as an officer or
agent of the United States for the transaction of business with such
business entity, shall be fined not more than $2,000 or imprisoned
not more than two years, or both.”
No criminal charge was brought against Wenzell, but the majority
opinion stated that the civil law suit by the Dixon-Yates group
involved “fundamental questions relating to the standards of conduct
which should govern those who represent the Government in its
business dealings.
“The question is whether the Government may disaffirm a contract
which is infected by an illegal contract,” the majority opinion
stated. “As we have indicated, the public policy embodied in Section
434 requires nonenforcement [of the Dixon-Yates contract] and this is
true even though the conflict of interest was caused or condoned by
high government officials.”
The Eisenhower administration, as I have already stated, could
probably have made a winning argument for the Dixon-Yates contract in
a debate involving simply public power versus private power. However,
the temptation to use the secrecy of “executive privilege” proved
too great, and ironically the secrecy kept President Eisenhower in
the dark about the details of the role of Adolphe H. Wenzell until
it was too late. Excessive secrecy blinded President Eisenhower and
some of his assistants until they were so victimized by deceit that
they could not recover their equilibrium and salvage the Dixon-Yates
contract.
CHAPTER VII
Congress Becomes Concerned
In late 1954 and early 1955, secrecy obscured the facts in a major
controversy over administration of the government loyalty-security
program. The Republicans had campaigned in 1952 on a charge that the
Truman administration was “soft” on Communists and contended that
an administration headed by Adlai Stevenson could be expected to be
composed of many Communist “coddlers.” In the 1954 congressional
election campaigns the Republicans used statistics compiled by the
Eisenhower administration to continue to assert that Democrats were
“soft” on Communists.
The Democrats contended that the Eisenhower administration was
engaged in a vicious “numbers game” to pad the statistics and make
it appear that Republicans were tougher about firing Communists
or Communist sympathizers. The Democrats claimed that many loyal
government officials were being arbitrarily forced to resign to build
the numbers against the Democrats.
When the Democrats won the 1954 election—and thus captured control
of the congressional committees, they were eager to investigate and
document the Democratic contention that the communists-in-government
issue was “phony.” Democratic committee members asked for records
that they believed would prove their case, but they ran into a thick
wall of secrecy.
The extreme campaign oratory and pledges had inflamed the issue,
and it was difficult to get it into perspective. Here was no doubt
of laxity in the administration of the security programs by some
agencies, and the conviction of Alger Hiss on a perjury charge had
made it appear to some Republicans that they were fully justified in
charging that the Democrats as a whole were “soft” on Communists.
Hiss had certainly held a key role in the State Department under
the Democratic administrations, prior to exposure of his communist
connections by the House Un-American Activities Committee in 1948.
Most Republican political figures took a fairly balanced view of the
communists-in-government issue. They regarded the administration of
loyalty-security programs as a difficult problem for any political
party. They saw the need for some personnel changes and a little
tighter administration of loyalty-security matters.
But the Republican party also harbored a few overeager,
inexperienced, and a few downright malicious men who tackled the
job of personnel security with a wild, free-swinging vigor and
little real judgment. There was a little evidence in 1953 and 1954
of Republican mismanagement of some security cases. However, no
real tangible evidence surfaced until January 1955, when Senator
Olin D. Johnston, the South Carolina Democrat, and his Committee
Staff Director H. William Brawley started an investigation of the
security program. Johnston was chairman of the Senate Post Office and
Civil Service Committee with jurisdiction over government personnel
policies.
The investigation had barely started when the Eisenhower
administration sought to hide the bungling and incompetence by
claiming “executive privilege.” By the time the hearings had been
concluded in the following fall, the secrecy wall of “executive
privilege” had been used by the State Department, the Agriculture
Department, the Civil Service Commission, and the White House. A
conspiracy of silence hampered the investigation from start to
finish, but I had obtained enough information on one celebrated
security case to demonstrate the kinds of mistakes and mismanagement
generally involved.
In December 1954 and January 1955, I had written a series of articles
describing the Agriculture Department’s unjustified ruling on Wolf
Ladejinsky. Ladejinsky, an agricultural attaché in Tokyo, was called
a “security risk” by Agriculture Secretary Ezra Taft Benson without
the slightest evidence that Ladejinsky’s loyalty was questionable.
The State Department had previously cleared Ladejinsky following an
exhaustive investigation under the new and tighter security standards
established by the Eisenhower administration.
I had been able to verify that the Agriculture Department made its
adverse ruling on the same evidence that had been examined by the
State Department when it cleared Ladejinsky. Harold Stassen, then
head of the Foreign Operations Administration, moved in quickly to
clear Ladejinsky. His report on Ladejinsky’s file stated that there
was no evidence that Ladejinsky had ever been sympathetic to any
communist causes in the nineteen years he had been employed as an
economist by the government.
Even with FOA and State on record clearing Ladejinsky, it took
more than six months of congressional investigation to force
Agriculture Secretary Benson to withdraw his finding that Ladejinsky
was a “security risk.” Throughout the entire period of time, the
investigating subcommittee was obstructed by the refusal of various
agencies to submit reports and give testimony.
Philip Young, chairman of the Civil Service Commission, refused to
comply with a _subpoena duces tecum_, for production of records. He
cited the May 17, 1954, letter on “executive privilege” and commented:
“The President’s letter points out that it is essential to efficient
and effective administration that employees of the executive branch
be in a position to be completely candid in advising each other on
official matters, and that it is not in the public interest that
any of our conversations or communications or any documents or
reproductions concerning such advice be disclosed....”
R. W. Scott McLeod, who then headed the State Department personnel
security program, refused to tell the investigating subcommittee
of his conversations with Milan D. Smith, executive assistant to
Agriculture Secretary Benson. He claimed that to tell what he told
Smith on the Ladejinsky case would reveal advice within the executive
branch of the government, and would violate President Eisenhower’s
instructions on “executive privilege.”
The report of the subcommittee of the Senate Post Office and Civil
Service Committee released on July 22, 1956, devoted an entire
section to the problem of obtaining information from the executive
branch in the face of the arbitrary secrecy policies being used under
a claim of “executive privilege.”
“At the outset and throughout the period of its existence the
subcommittee and staff have been handicapped in their work by the
refusal of the various executive agencies to submit files, upon
written request or by subpena, which files had a bearing upon the
operation of the Government employees’ security program, the very
subject designated to the subcommittee to investigate,” the official
subcommittee report stated.
“Must the Congress set up its own investigational staff with
undercover men in various agencies so as to know what goes on?” the
subcommittee asked.
The report continued: “The legislative function cannot be carried on
in the dark. The Supreme Court has approved the comment of Woodrow
Wilson who said:
“‘It is the proper duty of a representative body to look diligently
into every affair of Government and to talk much about what it sees.
It is meant to be the eyes and the voice and to embody the wisdom
and will of its constituents. Unless the Congress have and use every
means of acquainting itself with the acts and the disposition of the
administrative agents of the Government, the country must be helpless
to learn how it is being served; and unless Congress both scrutinize
these things and sift them by every form of discussion, the country
must remain in embarrassing, crippling ignorance of the very affairs
which it is most important that it should understand and direct.’”
The Johnston subcommittee declared that the interpretation being
placed on the President’s May 17, 1954, letter was such “as to force
the Congress to legislate in a vacuum. Each department or agency head
is the arbiter of what he should disclose, and in some instances
disclosures were made when they reflected a credit on the department
or agency or discredit on a committee witness.”
Once again officials had testified freely on matters that made the
political party or agency look good, but refused to produce records
that might embarrass them.
The report cited the classic legal treatise, _Wigmore on Evidence_.
In this work Professor Wigmore denies that the Chief Executive or
any other officer has a testimonial privilege not to be a witness in
court.
“The public (in the words of Lord Hardwicke) has a right to every
man’s evidence,” Professor Wigmore wrote. “Is there any reason why
this right should suffer an exemption when the desired knowledge is
in the possession of a person occupying at the moment the office of
the Chief Executive of a State?
“There is no reason at all. His temporary duties as an official
cannot override his permanent and fundamental duty as a citizen and
as a debtor to justice. The general principle ... of testimonial
duty to disclose Knowledge needed in judicial investigations is of
universal force. It does not suffer an exception which would be
irrespective of the nature of the person’s Knowledge and would rest
wholly in the nature of the person’s occupation....
“Let it be understood then, that there is no exemption for officials
as such, or for the Executive as such, from the universal testimonial
duty to give evidence in judicial investigations. The exemptions that
exist are defined by other principles.”
The Johnston subcommittee report also made note of the act of the
First Congress establishing the Treasury Department. This law made
it the duty of the Secretary of the Treasury to “report and give
information to either branch of the Legislature, in person or in
writing (as may be required) respecting all matters referred to him
by the Senate or House of Representatives, or which shall appertain
to his office....”
The subcommittee did not contend that it could force the President
or cabinet officers to testify on any subject, but it did contend
that cabinet officers must testify when there is a specific statute
covering their responsibility.
Attention was called to the Supreme Court ruling in the famous case
of _McGrain v. Daugherty_, handed down in 1927 in connection with the
Senate investigation of the Teapot Dome scandals. The opinion written
by Justice Van Devanter stated:
“We are of the opinion that the power of inquiry—with process
to enforce it—is an essential and appropriate auxiliary to the
legislative function.... A legislative body cannot legislate
wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change;
and where the legislative body does not itself possess the requisite
information—which not infrequently is true—recourse must be had
to others who do possess it.... Thus there is ample warrant for
thinking, as we do, that the constitutional provisions which commit
the legislative function to the two Houses are intended to include
this attribute to the end that the function may be effectively
exercised.”
According to the best authorities it seemed clear that Congress had
the power to compel testimony when searching for facts within its
jurisdiction. The Supreme Court had held that private persons could
be compelled to testify, and it seemed equally clear that government
officials could be compelled to give evidence. There was no way for
Congress to force the President personally to give testimony or
produce records except by impeaching him. Yet he was obligated, along
with all other government officials, to give testimony or produce
records for a proper congressional committee as long as the national
security was not endangered.
Certainly the revelation of testimony of conversations between a
State Department personnel officer and an Agriculture Department
personnel officer on the Wolf Ladejinsky case would not endanger
the national security of the United States. It is significant that
the Department of Agriculture departed from precedent in previous
security cases in making information on Ladejinsky available, but
this was information derogatory to Ladejinsky. The Department
used secrecy to hide its own faulty administration. The claim of
“executive privilege” was simply being used to cover up, and everyone
familiar with the record knew it.
CHAPTER VIII
Secrecy Hides the Security Bunglers
By the spring of 1955, enough executive agencies were refusing
records to Congress that Representative William Dawson, the Illinois
Democrat who served as chairman of the House Government Operations
Committee, had become concerned.
On June 9, 1955, Representative Dawson wrote to Representative John
E. Moss, the young California Democrat, formally establishing a
Government Information Subcommittee and asking that Moss be chairman.
Congressman Moss was only in his second term in Congress, and
normally would not have been assigned chairmanship of a subcommittee
unless it appeared relatively unimportant as a vehicle for publicity.
“Charges have been made that Government agencies have denied or
withheld pertinent and timely information to the newspapers,
to radio, and television broadcasters, magazines, and other
communication media, to trained and qualified research experts and to
the Congress,” Congressman Dawson wrote.
“An informed public makes the difference between mob rule and
democratic government. If the pertinent and necessary information
on governmental activities is denied the public, the result is a
weakening of the democratic process and the ultimate atrophy of our
form of government.”
Moss took the assignment immediately but waited five months before
starting what was to become the committee’s five-year struggle with
the Eisenhower administration.
Although the investigation ultimately became involved almost
exclusively in trying to break down the barrier of “executive
privilege,” it started out on general information policy problems.
At the time of the first hearing (November 5, 1955) there was only a
handful of observers greatly concerned over “executive privilege.”
James S. Pope, executive editor of the Louisville _Courier-Journal_,
J. Russell Wiggins, executive editor of the Washington _Post and
Times Herald_, and Harold L. Cross, special counsel for the American
Society of Newspaper Editors, were among those who shared my worry.
James (Scotty) Reston, Washington correspondent for The New York
_Times_, had recently expressed concern over “managed news.” He
objected to “the conscious effort” to give news emanating from the
Geneva Conference “an optimistic” flavor.
“After the Geneva smiling, the new word went out that it might be a
good idea now to frown a little bit, so the President made a speech
at Philadelphia, taking quite a different light about the Geneva
Conference,” Reston said. “That is what I mean by managing the news.”
I didn’t like “managed news” any better than Reston, but I believed
that the arbitrary secrecy of “executive privilege” was the core
of the problem. There would be “managed news” as long as executive
departments and independent regulatory agencies were able to invoke
an arbitrary secrecy to prevent the press and Congress from reviewing
the record—and as long as newspapers indolently accepted the
management.
The Moss subcommittee gave me an excellent chance to state my views
the first day of its hearings. I began my testimony with a review
of the history of the May 17, 1954, letter and the Army-McCarthy
hearings.
“Since that time,” I stated, “seventeen departments of the Government
have used this letter as a precedent for withholding actual decisions
of the government. Conversations and documents used in arriving
at decisions are regarded as confidential, and the Congress and
reporters alike are denied information.”
I pointed out that the American Civil Liberties Union had filed a
complaint against the use of “executive privilege” by subordinates
of executive agencies. And I commented that it was startling to find
Senator McCarthy and the American Civil Liberties Union together on
an issue.
“I think this demonstrates that this is not something political,” I
said. “The party in power may gain some kind of a temporary advantage
from hiding the record, but in a long-time advantage, for both
parties, it is best to try to make a full disclosure of what goes on
in government.”
In answer to questions I said I did not object to specific
legislation to cover areas of government where secrecy was essential.
I emphasized that “if the record of the government must be
confidential, it is not too much to ask the executive department to
give a reason. Democrats and Republicans in Congress have an equal
interest in obtaining ... the whole story, all of the information
behind the decisions of the executive agency.”
The next week, the Moss subcommittee on Government Information began
calling the long roll of witnesses from the Post Office Department,
the Agriculture Department, the Treasury Department, and the Civil
Service Commission. The first task was to try to establish from
reports and testimony just what the information practices of each of
these departments were.
A few months of work revealed to Chairman Moss and his staff a
tendency toward “a flexible policy” in many departments. A department
might refuse to produce information on one ground, and then jump to
another reason when the first became untenable. I knew that some
press officials were poorly schooled as to what should and should
not be made available, and that they made up the rules as they went
along. If the Moss subcommittee had done no more than establish a
written record on the laws and regulations being used for information
policies its effort would have been worthwhile. Fortunately it did a
lot more.
By the end of the first week of hearings the subcommittee staff
(Staff Director Samuel J. Archibald, Chief Counsel Wallace J. Parks,
and Special Counsel Jacob Scher) had already gathered a large
collection of rules and regulations on information. Also, they had
inserted in the record a copy of a Joint Resolution, No. 342, passed
by the House of Representatives on May 13, 1948—a not-so-gentle
reminder.
The Republican Eightieth Congress of 1948 had been so irritated at
the Truman administration for its refusal to make records available
to Congress that it passed a resolution directing “all executive
departments and agencies of the Federal Government created by
Congress” to furnish “such information, books, records and memoranda”
as was demanded by a majority vote in any properly authorized
committee of Congress.
At the time of that dispute in 1948, such leading Democrats as John
W. McCormack, of Massachusetts, and William L. Dawson, of Illinois,
defended the Truman administration for refusing to make available a
Commerce Department investigative report on Dr. Edward U. Condon,
director of the National Bureau of Standards.
President Truman had issued an executive order in which he stated
that “efficient and just administration of the employee loyalty
program ... requires that reports, records, and files relative to the
program be preserved in strict confidence.”
Even though this was a specific executive order, and limited to
investigative reports and personnel files, the Republicans were
outraged at being denied access to all information on cases under
investigation by Congress.
However, in 1955, when the tables had turned, the Republicans used
the same basic arguments the Democrats used in 1948. The Republicans,
moreover, were having to defend a far more widespread withholding of
records.
During this dispute, I examined the 1948 records of the Senate on
an investigation of a loyalty case involving William Remington,
another Commerce Department official. William P. Rogers had been
chief counsel for the committee investigating the Remington case, and
had been in charge of preparing the Senate subcommittee report that
castigated the Truman administration for arbitrary and unjustified
secrecy in withholding personnel investigation files. In those
reports, Rogers had likened withholding information from Congress to
keeping the seeing-eye dog from a blind man.
This was the same William P. Rogers who was appointed Deputy Attorney
General in the first term of the Eisenhower administration, and who
later became the Attorney General and the leading spokesman for the
ultimate in “executive privilege.”
In his early days in the Justice Department, I saw Bill Rogers on
a number of occasions and pointed out the inconsistency of his
positions. I asked him how he could be such a caustic critic of
secrecy in the Truman administration, and then suddenly switch to
being a leading advocate of such total arbitrary secrecy as used by
the Eisenhower administration in its stretched claim of “executive
privilege.”
“When you can show me that some crime or wrongdoing is being covered
up, come up and see me,” Rogers said.
I tried to reason with him, explaining that there were no laws and no
judicial decisions to support so absurd a claim to an arbitrary right
to withhold information. Rogers became jocular and said I was taking
the whole business too seriously. He said that if there were serious
cases he would examine them. He laughed off my suggestion that the
cases then available were serious and some day in the future could be
used as precedent to bury Democratic scandals from Republicans.
Rogers said that newspaper editorials had been in favor of the May
17, 1954, letter when it was issued, and that there was little
support on my side. I stuck to my argument that he was contradicting
his own position of six or seven years earlier. But it was no use to
try to argue with him. I left him to do his explaining later to the
Moss subcommittee and other congressional committees.
On May 8, 1956, the Moss subcommittee on Government Information heard
testimony from Bernard Schwartz, professor of law and director of the
Institute of Comparative Law at New York University; Hugh Fulton,
former chief counsel for the Truman committee; and Harold L. Cross,
special counsel for the American Society of Newspaper Editors.
Fulton, after an exhaustive statement on the problem of arbitrary
withholding by the executive agencies, concluded that the efforts to
impair the investigative power of Congress “hampers the legislative
powers and imperils democracy as we know it.”
Harold Cross, who had been practicing law since 1912, had also served
for twenty-five years as a professor of newspaper law in the Graduate
School of Journalism, Columbia University. I had known him for some
years through work on projects for the American Society of Newspaper
Editors.
In his testimony, Cross struck at the legal basis of the memorandum
of Attorney General Herbert Brownell that had accompanied the May 17,
1954, letter.
“Some of the findings of the memorandum ... are accurate,” Cross
said. [But] “the underlined part of the statement is merely an
assertion by the Attorney General. It is at direct variance with
pertinent court rulings.
“These cases, and others, are cited to this subcommittee as blanket
authority for withholding information. They are cited as establishing
in Federal officials, subordinates as well as heads, an inherent
right to withhold information—not only from the public and press
and individual Congressmen, but also from Congress itself and its
committees. They are cited as establishing rights to withhold that
are final and not subject to judicial review.
“Moreover,” Cross said, “these Attorney General opinions, which cite
no judicial authority, are inaccurate, are at direct variance with
pertinent court rulings.”
Cross concluded that Brownell’s “inaccurate” legal rulings “are both
cited and applied as if they were Holy Writ to suppress information
which this Congress needs in order to legislate, which the press
needs in order to perform its functions and which citizens need in
order to maintain a self-governing society.”
It was inspiring to have such a clear statement and such an
exhaustive study from Harold Cross. He was highly respected by the
editors of the American Society of Newspaper Editors, and I was
certain that his logic would soon convince many editors of the
wisdom of a united opposition to the unbridled claim of “executive
privilege.”
Now came my first meeting with Bernard Schwartz, then only
thirty-three years old but already a recognized authority in the
fields of constitutional and administrative law. The testimony of
this short, dark-haired professor with the heavy glasses was clear,
well documented, restrained. His condemnation of the May 17, 1954,
letter was altogether effective.
The letter claimed, Schwartz said, that the executive agencies had
“the absolute privilege and discretion” to withhold information from
Congress and the public.
“Those who assert that the law is settled in favor of an unlimited
right in the Executive ... do so out of an excess of executive zeal
but without any real basis in fact, or in law for that matter.
“There is no statute or judicial decision which justifies the extreme
pretensions of privilege consistently maintained by executive
officials,” Schwartz said.
“It is true that there is a long history of executive refusals to
comply with congressional investigative demands and that these
refusals have often been justified, upon supposed legal grounds, by
opinions of the Attorney General,” he continued. “Neither opinions
of the Attorney General nor the practice of the Executive can
justify unwarranted distortions of the Constitution.... Nor does a
governmental practice conceived in error become elevated to the plane
of legality merely because the error has been long persisted in.”
Schwartz called attention to arguments that Congress was abusing
its investigative power, and commented: “To this writer, indeed,
the overriding danger is not Congressional abuse but the vesting of
unfettered discretion in the Executive to surround with secrecy all
its activities.
“Those who are concerned with the possibility of legislative abuse
ignore the overriding peril of the present century, that [of] the
superstate with its omnipotent administration, unrestrained by
any checks on its all-pervasive regulatory activities, so vividly
pictured by George Orwell in his novel _1984_.
“The great danger today is 1984, not Senator McCarthy. If the elected
representatives of the people assert their right to lay bare all
that goes on within the Executive, that danger may be avoided. An
Executive whose abuses and inadequacies are exposed to the public eye
can hardly become a menace to constitutional government.”
There had never been any doubt in my mind about the basic problems
involved in the executive claim of an unlimited right to withhold
information. But it was comforting to be supported by the exhaustive
legal studies of Fulton, Cross, and Schwartz.
This was only the start of an interesting association with Professor
Schwartz, who later became a headline figure as a result of his
controversial investigation of the independent regulatory agencies.
CHAPTER IX
Secrecy Curtain on Iron Curtain Deals
While the Moss investigations continued, the Senate Permanent
Investigating Subcommittee was accumulating evidence that showed
how a relaxation of government controls over shipments of vital and
strategic materials had resulted in a sharply increased flow of these
materials to the Soviet-bloc countries. In February 1956, Chairman
John L. McClellan, the Arkansas Democrat, opened public hearings on
the relaxation of controls over East-West trade.
McClellan announced that his staff—headed by Chief Counsel Robert
F. Kennedy and Investigator LaVern Duffy—had discovered “evidence
that merchants of the free world are helping to build up Russia’s
military potential by furnishing it items which are indispensable in
constructing or maintaining a war machine.”
In August 1954, representatives of the North Atlantic Treaty
Organization nations, plus Japan, had met in Paris in a Coordinating
Committee known as COCOM. This committee had downgraded, or otherwise
decontrolled, approximately 150 out of 450 strategic items. Items
removed from the embargo list included heavy metal-working machinery,
electric power generating equipment, minerals, metals, transportation
equipment, and petroleum products and equipment.
“Such downgrading and removal [from embargo lists] has been harmful
to the security of the non-Communist world,” Chairman McClellan said.
Chief Counsel Kennedy tried to push into the U.S. Government agencies
to find out how this relaxation had taken place, and to pin down
the responsibility for the action. Excuses of security were given
to refuse information, and there were claims that testimony by U.S.
officials might interfere with our relations with our allies. When
such excuses failed to stand up, the blanket arbitrary secrecy of
“executive privilege” was invoked to hide disputes that had taken
place in government on the revision of the strategic materials list.
The committee was forced to rely on testimony from persons no longer
in government, or on tips from persons in government who contacted
investigators quietly because they feared losing their jobs if they
co-operated openly.
Thanks to such testimony, it soon became apparent who had changed
the strategic materials list to permit shipment of copper, aluminum,
precision boring machines, and huge horizontal boring and drilling
and milling machines to Iron Curtain countries.
“The downgrading and decontrol of approximately 150 of the items,”
the McClellan subcommittee reported, “were recommended by personnel
in our own Government agencies on the so-called Joint Operating
Committees, contrary to advice of the experts and technicians of
the Defense Department and in many instances against the advice of
experts in their own agencies.”
There were indications at an early stage of the investigations that
the revisions in the embargo list made the whole strategic list a
complete farce. Simple jig boring machines were retained on the list
as being prohibited from shipment to a potential enemy. However, the
revised list allowed the shipment of more modern precision boring
machines of much higher strategic value.
Initially the Eisenhower administration policy was not unified in
barring access to testimony and records. But, as the subcommittee
intensified its investigation, the requests for information ran into
a stone wall of opposition from the executive agencies involved—the
State Department, Defense Department, Commerce Department, and the
Foreign Operations Administration. No one claimed that defense
secrets were involved. The executive branch abandoned any pretense
and fell back on the arbitrary refusal by simply citing President
Eisenhower’s May 17, 1954, letter.
The arrogance of the executive branch was best demonstrated by
the letter from Secretary of Commerce Sinclair Weeks to Commerce
Department employees. He wrote:
“You are instructed not to testify either in public or executive
closed session with respect to any advice, recommendations,
discussions and communications within the executive branch respecting
any course of action in regard to East-West trade control or as
to any information regarding international negotiation with the
countries cooperating in East-West trade controls....”
Weeks tried to give some color of law to the claim of executive
secrecy by citing three federal court cases, but the subcommittee
declared none of the cases cited involved the right to withhold
information from congressional committees.
It was Harold Stassen, then a Special Assistant to the President,
who balked at giving information in a manner that most galled the
subcommittee members.
“Are you willing to give us full, detailed, and complete
information?” Chairman McClellan asked Stassen.
Stassen replied: “I am willing to give you, and the executive
branch is willing to give you, every bit of information that does
not violate one of three considerations: One, security from the
standpoint of intelligence; two, the rule on internal executive
branch documents ...; three, the details of international
negotiations which would make our relations with our allies more
difficult.”
“Are you willing to give us the list of items that were decontrolled
or downgraded?”
“No, I do not have ... those lists now.”
“All right,” McClellan said. “Let me ask you: Are you permitted to
testify under the security cloak that is wrapped around Government
officials in this matter?”
Stassen declared that McClellan was helping the Communists in
revealing material on the strategic materials list.
“You say I am helping the Communists,” McClellan snapped. “The
allies, whose position you are defending, Great Britain—I hope our
strongest ally—publishes the list so the Communists can see what she
will sell, the very items that are today classified from the Congress
and the American people.”
Stassen was surprised. “The United Kingdom does not publish the
international list, Mr. Chairman, that I know of.”
McClellan picked up some papers and extended them toward Stassen.
“Here it is; I hold it in my hand. This is a Board of Trade
_Journal_, October 16, 1954, on which wire, copper wire, is excluded,
so they know they can buy it.”
“Would you give it to me, please?” asked Stassen.
Even after Stassen was given the list published by the British, he
refused to make the almost identical American list available to the
McClellan subcommittee. After a long and unsuccessful effort to
obtain information from Stassen, Senator Sam Ervin concluded that the
Eisenhower administration was willing to talk a lot but say nothing.
In his slow North Carolina drawl, the gray-haired Democrat elaborated:
“We have had experience here that people in the lower echelons of the
executive departments have had their mouths stopped, and we were told
that those who were at the higher levels could give us information.
But I have come to this conclusion: That our position is sort of
like that of one of my clients, who came in my office one day and
said that he wanted to get a divorce from his wife.
“He admitted she was a good woman, a good mother, and a good
housekeeper. I said, ‘Well, what in the world do you want to get a
divorce from her for?’ He said, ‘Well, she just talks, and talks, and
talks, and talks, and talks all the time.’ I said, ‘What does she
talk about?’ And he said, ‘Well, she don’t say.’”
Stassen’s refusal to say anything was made all the more appalling by
the publication of _The Inside Story_, a book about the Eisenhower
administration written by Robert J. Donovan of the New York _Herald
Tribune_.
“The contents of the book,” the McClellan subcommittee stated, “are
based upon documents, materials, minutes, and other information
similar in nature and character to that which this subcommittee has
been trying to obtain in the course of discharging its legislative
duties and responsibilities.
“The executive branches of the Government have been adamant in
refusing to make such information available to this subcommittee, and
it is difficult to reconcile such attitude with its willingness to
give similar information to private individuals.”
The McClellan subcommittee was not critical of Donovan, but the
members were infuriated by the policy inconsistencies. A request was
made for Maxwell Rabb, Cabinet Secretary, to appear and explain the
reasons and circumstances surrounding the release of information to
Donovan.
“Rabb failed and refused to appear,” the subcommittee reported.
“Thereafter, a letter was sent to Under Secretary of State [Herbert]
Hoover [Jr.], Secretary of Commerce [Sinclair] Weeks, ICA Director
[John B.] Hollister, Assistant Secretary of Defense Gordon Gray,
calling attention to the fact that material of a confidential nature
and relating to the internal workings of the government at Cabinet
and staff levels had been disclosed to a private individual for a
commercial purpose, and in the light of these facts, the chairman
of the subcommittee again requested that the documents of the Joint
Operating Committee, relating to decontrol of strategic materials, be
made available to this subcommittee as early as possible.”
The information was not supplied, and the McClellan subcommittee
declared that this “suppression of information raises not only the
question as to the right of Congress to know, but also the question
of the right of the public in a democracy to be informed as to the
activities of its government.”
In its reports, the McClellan subcommittee declared that the doctrine
of separation of powers as explained in President Eisenhower’s
May 17, 1954, letter was totally wrong in asserting the complete
independence of the executive branch. The subcommittee quoted from
the opinion of Chief Justice William Howard Taft in the Grossman case
in which he said:
“Complete independence and separation between the three branches,
however, are not attained or intended, as other provisions of the
Constitution and the normal operation of government under it easily
demonstrate.” The Grossman case set out the various checks the
executive, legislative, and judicial departments are specifically
granted under the Constitution.
The subcommittee legal report stated flatly that there are no legal
cases upholding the claimed “inherent right to withhold information”
from Congress.
In another report, the subcommittee also challenged the broad use of
the May 17, 1954, letter from Eisenhower to Defense Secretary Wilson.
The report quoted from the May 17, 1954, letter:
“You will instruct employees of your Department that in all
their appearances before the subcommittee of the Senate Committee
on Government Operation regarding the inquiry now before it
[Army-McCarthy hearings] they are not to testify....”
“It is clear that this letter was intended to apply specifically
to the Army-McCarthy hearings,” the subcommittee report concluded,
but the fact was that it had “been cited by twenty or more federal
agencies and departments as grounds for refusing information to
Congress.”
Chairman McClellan went on the Senate floor to express his concern
over the total secrecy that was being clamped on the executive branch.
“The Government agencies acting in concert are doing everything to
hinder and hamper the Subcommittee’s efforts to ascertain the facts
concerning the relaxation of these controls,” the Senator declared.
“Except for some co-operation from the Department of Defense, the
information has not been forthcoming. The facts the Subcommittee has
developed thus far ... have not been made available or furnished ...
by the executive agencies.
“The information we have has been secured from documents and
publications of foreign governments, where the information is being
freely given out by our allies. That same information in the United
States is being withheld by the executive branch of our Government
from both the Congress and the American people.”
McClellan declared it is “a farce” how the Battle Act list of
strategic materials is withheld from Congress and the people of the
United States but is available to the Communist-bloc countries.
“They know what they can buy,” he said. “They [the Communist bloc
countries] know what they do buy and have bought.
“Can it be ... this classification, this policy of secrecy, this
suppression or withholding of the truth is a process or an action
designed for hiding of errors, inefficiency and bad judgment of
Government officials?” he asked. “I am convinced it is. If not, then
why not give the Congress the information and let the American people
know the truth?”
Senator Richard Russell, the veteran Georgia Democrat, joined
McClellan in denouncing the arbitrary secrecy in the East-West trade
investigations. He said it presented “a very shocking picture of the
failure of co-operation with the Congress in a field in which we
have as direct a responsibility or a greater responsibility than the
executive department in attempting to maintain a superiority in arms,
in order that we may defend our country.”
Senator Wayne Morse, the Oregon Democrat, also lashed out at the
secrecy, and declared that such hiding of government records would
justify voting against the whole foreign-aid program.
“We have a right to know what goods foreign-aid countries ship to
Russia,” Morse said. “We are not asking for the disclosure of secrets
which involve the war plans of our country, [and] which should be
kept secret.”
Senator Joseph R. McCarthy and Senator Morse were rarely together
on an issue. But on the question of secrecy in the Eisenhower
administration, Senator McCarthy lined up with Morse, McClellan,
Russell, and such liberals as Senator Paul Douglas (Dem., Ill.) and
Senator Thomas Hennings (Dem., Mo.).
“I was extremely critical of the Democrat administration for
withholding information from Congress,” McCarthy said in a Senate
speech. “During the hearings which the very able Senator from
Arkansas has been conducting, I was appalled by the even greater
secrecy maintained by the executive branch today. As the years go
by the Executive is becoming more and more arrogant and highhanded
toward legitimate congressional requests for information.”
By this time I was starting to feel optimistic about breaking the
secrecy barrier, for it seemed that political figures of all
complexions were aroused about the danger it created for a democratic
government. Additionally, at this time there came a report, dated May
3, 1956, from the House Government Operations Committee, parent of
the Moss subcommittee. It stated that the Eisenhower administration’s
claim to an inherent right to secrecy “has never been upheld by the
courts. It has been a mere Executive _ipse dixit_ [say so].”
The five-point conclusion of this report seemed to me to be as fine a
résumé of the legal situation as I had seen:
“1. Refusals by the President and heads of departments to furnish
information to the Congress are not constitutional law. They
represent a mere naked claim of privilege. The judiciary has never
specifically ruled on the direct problem involved in a refusal by
Federal agencies to furnish information to the Congress.
“2. As far as access to information is concerned the courts
have not distinguished basically between executive agencies and
quasi-legislative or quasi-judicial agencies. Both appear to stand in
the same status.
“3. Judicial precedent shows that even the President has been held
to be subject to the power of subpena of the courts. While this is
so, it may be that the only recourse against the President himself is
impeachment if he fails to comply with a subpena of either the courts
or the Congress.
“4. Any possible presidential immunity from the enforcement of legal
process does not extend to the heads of departments and other Federal
agencies. Judicial opinions have never recognized any inherent
right in the heads of Federal agencies to withhold information from
the courts. The courts have stated that even where the head of the
department or agency bases his action on statutory authority the
courts will judge the reasonableness of the action in the same light
as any other claim of privilege. The courts have held that the mere
claim of privilege is not enough.
“5. There is no inherent right on the part of heads of the
departments or other Federal agencies to withhold information from
the Congress any more than they have a right to withhold information
from the Judiciary....”
* * * * *
Before the McClellan subcommittee on the Senate side completed
its report, a number of voices had been raised in defense of the
Eisenhower administration’s secrecy. But they did not seem to
be strong voices. Only Senator Karl E. Mundt, the South Dakota
Republican, and George H. Bender, the Ohio Republican, signed a
minority report on the East-West trade investigation.
Senator Mundt and Senator Bender charged that the report of the
five-member majority “is entirely misleading as to the effectiveness
of international control of strategic materials.” Although Chairman
McClellan had consistently indicated a willingness to take testimony
or records in a closed session if a problem of real national
security was involved, Mundt and Bender defended the Eisenhower
administration’s refusal to make information available on grounds
that to testify might help the Communists.
“To make some of this information available in public session would
tell the Communist nations about our strategic and short supply,
reason for control and decontrol,” the Mundt-Bender report stated.
“We would publicize for the benefit of potential enemies the
thoughts, recommendations, advice and working papers of subordinates
who worked for those in the executive branch who held and exercised
action responsibility.”
In years past, Senator Mundt had been highly critical of the secrecy
of the Truman administration. Now, however, he said he wished to
“disassociate myself from that conclusion” by Senator McClellan that
secrecy is being used to cover up “errors, inefficiency and bad
judgment.”
“I think at the moment it is purely a political deduction,” Senator
Mundt said.
Hardly anyone took Senator Bender’s position seriously for he was
generally regarded as a political buffoon. To discredit his support
of the Eisenhower administration’s secrecy, the majority report
merely quoted from two speeches that Bender had made as a House
member in October 1951.
In October 1951, when the shoe had been on the other foot, Bender
rose on two occasions to castigate the Truman administration for a
censorship of government information.
“Power over the press,” he said, “is the path to dictatorship.”
And:
“What most of us find the most objectionable in the President’s
[Truman’s] order is the ease with which it can be used to cover up
blunders and incompetence, and the absence of any provision for
removing secrecy provisions after the emergency has passed. We may
now find our friends in other countries revealing information which
we are not permitted to publish or broadcast.”
Bender’s last sentence could not have been more prophetic. The
majority report hammered home the prophecy-come-true: “The British
have published substantially the same export-control list as that
which our Government departments and agencies seek to hide and
conceal from the American people.”
On the basis of consistency, reason, and logic the Eisenhower
administration’s broad use of “executive privilege” was by now
thoroughly discredited. I did not see how President Eisenhower
or anyone else could defend it, but I had not taken into account
President Eisenhower’s lack of understanding of just what was taking
place under the cover of “executive privilege.” The President was
exceedingly popular, and there were plenty of people who were willing
to use his good name and reputation for honesty as a cover for their
own errors, incompetence, misjudgments, or improprieties.
CHAPTER X
Pressing a Point with Ike
The final reports from the four congressional investigations—a House
Government Operations Committee, the Senate Dixon-Yates investigating
subcommittee, the McClellan subcommittee on East-West trade, and the
Wolf Ladejinsky probe—were all released during the summer of 1956.
Each assailed the excessive arbitrary secrecy that had hampered the
investigations.
So, once again, at a press conference on September 27, 1956, I raised
the problem of arbitrary executive secrecy with President Eisenhower.
“Mr. President,” I said. “At least four Congressional committees in a
period of the last few weeks have issued reports that were critical
of what they termed excessive secrecy which they felt covered up
mismanagement in the operation of the Government.
“Now, these committees contend that there is no court decision
backing the broad proposition of executive secrecy, and I wondered
if you could tell us if you feel that all employees of the Federal
Government, at their own discretion, can determine whether they
will testify or will not testify before committees when there is no
security problem involved?”
The President’s answer indicated that he was still not aware of the
scope of the problem.
“Well, I believe that the instructions are clear, that when there is
no question of security, national security, involved, that everybody
is supposed to testify freely before congressional committees. I will
have to look up the regulations, I mean the letters of instruction
that have gone out. Primarily, I think this is a function of the
department heads and the separate office heads—”
“Well, Mr. President—” I tried to break in to correct him, but he
continued.
“I don’t believe that any individual who happens to be, let’s say
from a filing clerk on up can by themselves decide what is right for
them to tell and what is not right.”
“Mr. President,” I explained. “They used the May 17, 1954, letter
that you wrote to Secretary Wilson in the Army-McCarthy hearings as
a precedent in this particular case. I wonder if you felt they were
misusing it if they use it, say, a clerk or an assistant secretary?”
The President was mildly irked at being pressed to comment on a
specific situation. “Now, you give me a very long and involved and
detailed question here at a place where I don’t even remember what I
wrote to Secretary Wilson at that time. I will have to look it up. If
you will put your question ... in to Mr. Hagerty so we can look it
up, why, it will be answered.”
I was amazed that the President didn’t have a better grasp of the
problem at this late date. Dozens of government officials had been
using his name and his letter to Wilson as a justification for
refusing to produce records in a number of cases which had been
headline news, but he couldn’t remember what his policy was.
On leaving the press conference, I returned to the National Press
Building and prepared my question for submission to Jim Hagerty. I
drafted the question with care so there could be no confusion as to
the points at issue, and delivered it to Hagerty at the White House.
The letter follows.
Mr. President: At least four congressional committees have issued
reports recently criticizing the executive agencies for what they
term “excessive secrecy” that can cover up mismanagement.
These committees contend that there are no court decisions to
support the broad contention of the “confidential executive
business” as set forth in your May 17, 1954, letter to Secretary
Wilson in the Army-McCarthy hearings.
The committees do not quarrel with your personal right to declare
specific acts or communications as “confidential.” They do argue
that many subordinate officials are wrongfully using the May
17, 1954, letter to claim that their government actions and
communications are “confidential.”
Some agencies have stated that Congress is entitled to “only final
decisions” of the agency, and has no right of access to papers
leading up to the decisions.
Do you feel that all employees of the Executive Branch have the
discretion to testify or not testify before Congress about their
official acts, when no security is involved?
At what level does this discretion lodge?
If you feel this is a misuse of the precedent, would you clarify
this matter on the access to information by the Congress and the
press?
I knew the question would be answered by Gerald D. Morgan, the
White House counsel, and I made several trips to the White House
to convince him of the wisdom of limiting the use of “executive
privilege” to cases approved specifically by the President.
Morgan seemed to be convinced at that stage that the Eisenhower
administration should put some bridle on the unrestrained use of
“executive privilege” by officials at all levels. I argued that it
was to the advantage of the administration in power to have the
congressional committees actively policing the agencies, and that
there was grave danger of corruption developing in any agency where
those in charge felt they could arbitrarily block congressional
investigators.
Morgan asked that I send him a memorandum on the proper safeguards
against improper use of “executive privilege.” I felt optimistic when
I submitted the memorandum to Morgan October 4, 1956, and felt that
perhaps the Eisenhower administration was willing to take action
publicly to end this arbitrary secrecy.
I had mentioned to Morgan that I had read the article he had written
for the California _Law Review_ of December 1949, in which he spoke
forcefully in support of the power of Congress to compel testimony
and production of records.
Morgan’s article, entitled “Congressional Investigations and Judicial
Review,” was written when he was an assistant legislative counsel to
the House of Representatives. In those years he had been a critic of
the Truman administration for excessive secrecy and a strong advocate
of the power of Congress to investigate.
In his law review article, Morgan pulled apart the Supreme Court
decision in _Kilbourn v. Thompson_, a case decided in 1881. For
years this case had cast some doubt on the rights of the Congress to
conduct broad investigations to carry out its legislative function.
Morgan pointed out that _Kilbourn v. Thompson_ was a discredited
decision, and that the 1927 case of _McGrain v. Daugherty_ upheld the
right of congressional committees to compel witnesses to testify and
produce records.
The case of _McGrain v. Daugherty_ arose out of the Teapot Dome
scandal investigation of the 1920s. It was the same case that was
cited by various congressional committees in 1956 as authority for
insisting on testimony and records from government agencies.
The letter Gerald Morgan wrote me was not what I wanted, and it
certainly was inconsistent with the principles he had set forth in
his 1949 law review article (see Appendix B). But it did demonstrate
some desire to come to grips with the problem. He wrote:
“An employee is not free merely to exercise his own discretion (with
regard to testimony and production of documents), but in the final
analysis information will be withheld only when the President or
agency heads acting under the President’s authority or instruction
determine it is contrary to the public interest to disclose it.”
Inasmuch as the letter suggested that information should be given
to committees of Congress unless there was a specific order to
the contrary from the President, Congressman John Moss thought it
portended an easing of the restrictions on information. At least he
hoped it did. How futile was his hope we were soon to see.
Unfortunately, the Congress had to rely to a large extent on the
Justice Department in normal moves to take court action against any
government officials who refused to give testimony. So, although the
case of _McGrain v. Daugherty_ upheld the right of Congress to demand
testimony and records, there was yet a practical problem involved.
Congress had to depend on the good faith of the Attorney General and
his top aides to enforce its demand.
A case in point occurred in the summer of 1956 when the Justice
Department used the secrecy of “executive privilege” in an effort
to block an investigation of a settlement of an antitrust suit. The
antitrust suit involved American Telephone and Telegraph (A.T. & T.),
and the investigation was being conducted by Representative Emanuel
Celler’s antimonopoly subcommittee of the House Judiciary Committee.
Chief Counsel Herbert Maletz was instructed by Celler to obtain the
Justice Department files to determine the facts leading up to the
settlement of the A.T. & T. antitrust suit.
The suit had been initiated by the Department in 1949 for the
purpose of forcing a divorce of A.T. & T. and its subsidiary, Western
Electric. The separation was urged to break the near monopoly that
Western Electric enjoyed in the production of telephone equipment.
The suit had been hailed by Attorney General Herbert Brownell as a
great victory for the government, but he and Deputy Attorney General
William P. Rogers claimed “executive privilege” and refused to make
the files available. They covered up the fact that the settlement
allowing A.T. & T. to continue the ties with Western Electric was
made over the opposition of staff members in the Justice Department.
Although Herbert Maletz was blocked from examining the files of the
Justice Department, he managed to obtain much of the information he
sought from the files of A.T. & T. and from records in the Defense
Department. This outside probe uncovered some interesting things that
Justice Department secrecy had hidden. It showed that a high official
of A.T. & T. had written a letter which Defense Secretary Charles
E. Wilson sent to the Justice Department urging settlement of the
antitrust suit on terms favorable to A.T. & T. The investigation also
revealed the conversations between Attorney General Brownell and a
lawyer for A.T. & T. that paved the way to settlement.
Because “executive privilege” blocked the Celler subcommittee from
questioning Justice Department employees, it was necessary to
subpoena a former official of the Justice Department to establish
that Brownell’s settlement was actually opposed by the working staff
in the Antitrust Division. But who could override Brownell, the
President’s chief legal adviser? The investigation stopped at the
door of his office.
* * * * *
The Celler antimonopoly subcommittee of the House Judiciary Committee
ran into “executive privilege” again when it started to investigate
the operations of the Business Advisory Committee (BAC) and the
Department of Commerce.
Chairman Celler, an aggressive New York Democrat, was concerned over
the way the BAC was influencing policy in the Department of Commerce.
He questioned whether there were adequate safeguards against the
misuse of such a committee. Without the safeguards, it could become
a device for getting competitors together for price fixing or other
violations of the antitrust laws.
Chief Counsel Maletz, under directions from Celler, asked for the
minutes of the meetings of the BAC and the details of the operations.
The subcommittee requests were rejected by Commerce Secretary
Sinclair Weeks on grounds that the BAC minutes were “confidential”
business of the executive branch of government.
Chairman Celler then argued that the BAC was a private committee, not
supported by government funds and not a government agency. He denied
that any “executive privilege” existed and declared that if it did
exist, Secretary Weeks could not use it properly to try to cover up
the activities of a private group that happened to give some advice
to a department of government.
Commerce Secretary Weeks replied that BAC was a government committee,
and that the minutes of BAC meetings therefore were covered by an
“executive privilege.”
Presumably the Celler antimonopoly subcommittee would have been
allowed access to the minutes of the BAC if Weeks had considered it
a private business group. But in order to put those minutes out of
the reach of congressional inquiry Secretary Weeks was forced to
the ludicrous position of claiming that the private group became
a part of the government (and therefore entitled to an “executive
privilege”) merely by advising it.
I had often used a quotation from Patrick Henry in talks on secrecy,
but it had never been more appropriate than now. Said Henry:
“To cover with the veil of secrecy the common routine of business,
is an abomination in the eyes of every intelligent man and every
friend to his country.”
I was reminded also of these telling words of Edward Livingston:
“No nation ever yet found any inconvenience from too close an
inspection into the conduct of its officers. But many have been
brought to ruin, and reduced to slavery, by suffering gradual
imposition and abuses which were imperceptible only because the means
of publicity had not been secured.”
One could only wonder when President Eisenhower would awaken to the
abuses of secrecy being perpetrated in his name, right under his own
nose.
CHAPTER XI
Keeping the Professor in the Dark
The Justice Department, Commerce Department, Agriculture Department,
Defense Department, and State Department had all used the arbitrary
secrecy of “executive privilege” without causing a public uproar. Not
only had they succeeded in avoiding major press criticism, but they
had secured statements from President Eisenhower to give a noble and
patriotic coloring to their deceptions.
With such encouragement at the top it was inevitable that the policy
of secrecy would spread. In August 1957, the newly created House
Legislative Oversight Subcommittee hired Bernard Schwartz, the young
law professor from New York (see Chapter VIII), as counsel for an
investigation of the various regulatory agencies. The committee,
headed by Representative Morgan Moulder, Missouri Democrat, had been
established “to go into the administration of the laws [creating the
regulatory agencies] and see whether or not the laws ... were being
carried out or whether they were being repealed or revamped by those
who administer them.”
The young professor had barely started his work in September 1957,
when he began bumping into secrecy trouble. In all, there were six
of the so-called “independent regulatory agencies” in the scope of
the House Legislative Oversight Subcommittee. The “big six” to be
probed were the Federal Communications Commission (FCC), the Civil
Aeronautics Board (CAB), the Interstate Commerce Commission (ICC),
the Federal Power Commission (FPC), the Federal Trade Commission
(FTC), and the Securities and Exchange Commission (SEC).
The Congress had created these regulatory agencies to perform a
wide range of functions including control of radio and television
licenses, control of gas and electric power lines, control of
commercial land transportation by train, truck, or bus, the
investment market, and air transportation. Rights worth billions of
dollars were involved in the decisions of these agencies, and it had
been the stated intention of Congress to remove these decisions from
the direct pressure of politics. To do this, the regulatory agencies
were headed by bipartisan commissions or boards, the members of which
were nominated by the President, subject to approval by the Senate
and limited to a fixed term of office.
In theory, at least, these boards or commissions were specialized
courts in their fields. They had rule-making and administrative
functions, but they also rendered judicial decisions on the basis of
public records and public hearings. Once appointed, these members
of the regulatory agencies were to be insulated from the pressure
politics of the White House and the Congress. Prior to Dr. Schwartz’s
arrival in Washington, there had been widespread reports, and some
evidence, that members of some of the regulatory commissions were
engaging in conversations with political personnel at the White House
and elsewhere on cases under study. To Dr. Schwartz, an outstanding
authority in the field of administrative law, it was elementary that
such conversations were improper while a case was being decided.
“It is as bad as having one of the parties in a law suit sneak into
the chambers of the judge to try to influence his decision in the
middle of a trial,” Dr. Schwartz told me.
I discussed some incidents with him which I felt merited
investigation, and he told me he was having trouble getting access to
material he requested. The CAB appeared ready to try to pull down a
secrecy curtain as broad as “executive privilege” because it could
have no legal substance for an independent regulatory agency.
On September 19, Dr. Schwartz requested that the CAB allow members
of the House subcommittee staff “to receive and examine any records,
documents, or information directly, or indirectly, pertaining to
your agency, function or business within the jurisdiction of this
subcommittee.”
A few days later, on September 23, he pressed CAB Chairman James
R. Durfee for full access to CAB records. Durfee insisted the CAB
would screen all files containing documents or communications from
other agencies or departments of government. It was now apparent
that Durfee was going to refuse access to internal governmental
communications on grounds of “executive privilege.” Dr. Schwartz was
irate. He termed Chairman Durfee’s position “completely ridiculous”
and suggested that Durfee obtain competent legal counsel.
By this time the pressure of the investigation was being felt by a
number of the regulatory agencies. The chairmen of the six regulatory
agencies met at a luncheon at the University Club in Washington the
next week to determine how to handle the inquisitive Dr. Schwartz.
Because of the success some government departments had been having
with “executive privilege” some of the chairmen decided that this
was to be the answer for their agencies, but there was no general
agreement.
Dr. Schwartz was not discouraged by the lack of information; he
only pressed harder. Subcommittee Chairman Morgan Moulder took the
suggestion of Dr. Schwartz and set October 17 as a public hearing
date for CAB. In the meantime, on October 5, he followed another
Schwartz suggestion and asked that the CAB prepare and submit a
report on “all gifts, honorariums, loans, fees, or other payments”
of things of value received by CAB employees from any “person,
firms, corporation, association, organization, or group having any
interest, direct or indirect,” in any matter before the board.
Dr. Schwartz was allowed to examine the public files, but his efforts
to obtain files of correspondence with the White House and with other
agencies ran into the claim of “executive privilege.” In the first
months, he nevertheless became aware that Sherman Adams and others on
the White House staff had been extremely active in reaching various
regulatory agencies.
In an exhaustive eighty-two-page “Memorandum of Law,” filed on
October 17, Dr. Schwartz exposed the true nature of the “executive
privilege” arguments. They all sprang from the idea that “the King
can do no wrong.”
“In the pretension of those who espouse ‘executive privilege,’” he
said, “the infallibility recognized in the King in the days when
he was personally sovereign of England has been attributed to the
President in our system. The reasoning which supports the doctrine
should shock the intelligence, as well as the sense of justice,
of those who truly believe in the essentials of representative
democracy.”
He reported that the CAB claimed “the authority to screen files
and records before they are made available to the subcommittee,
with a right to the Board in its discretion to remove any and all
documents” that could be considered personal files of Board members
or communications within CAB or with the White House.
“The Civil Aeronautics Board cannot claim privilege with regard to
communication between the Board, on the one hand, and the President
or other departments and agencies, on the other. Such an assertion of
privilege cannot defeat the right of this subcommittee to investigate
the relationship between the independent regulatory agencies and the
executive branch.”
Schwartz continued: “‘Executive privilege’ is not available to an
independent agency like the Civil Aeronautics Board as a possible
basis for the withholding of information from the Congress. The
Civil Aeronautics Board, as the Supreme Court has recognized, is
an independent agency whose members are not subject to the removal
power of the President. Such a body cannot in any proper sense be
characterized as an arm or an eye of the Executive. It is instead an
arm of the Congress, wholly responsible to that body.
“The doctrine of absolute ‘executive privilege’ itself is not
supported in law. The cases cited by its proponents are not truly
relevant on the power of the Executive to withhold information from
the Congress. On the other hand, there are many decisions squarely
rejecting the doctrine, even in courtroom cases. In addition, Dean
Wigmore (the leading authority on the subject in this country) flatly
repudiates the doctrine.”
Although Dr. Schwartz did succeed in eliciting half-promises of
co-operation from some officials of the regulatory agencies, most
of them dragged their feet. Richard A. Mack, a member of the FCC,
wouldn’t show investigators many of his records, including the office
diary that provided links for his indictment later on charges of
having conspired to violate the federal law. The lack of co-operation
by Commissioner Mack was matched by the resistance at CAB, where
Schwartz was trying to pin down evidence of contacts by Sherman Adams.
In January 1958—after five months of frustration—Schwartz insisted
that the members of the Legislative Oversight Subcommittee get tough
and demand full co-operation. Some members of the investigating
committee did not want to force the issue. Several of the Republicans
came out flatly in support of the Eisenhower administration’s
obstructionist tactics.
The lack of support from committee members so irritated Schwartz that
it took only a little urging from some newsmen to get him to leak a
staff memorandum to The New York _Times_. It was a lengthy document
setting out the well-settled legal principle that it is improper for
members of regulatory agencies to have private talks with litigants
when a case is in hearing or in the process of being decided. The
Schwartz memorandum also questioned the propriety of the members’
accepting lavish entertainment from executives of the industries they
were supposed to regulate.
Tempers flared in the days following the leak of the Schwartz
memorandum, and finally on February 10, 1958, the House subcommittee
voted to fire Dr. Schwartz. I called Dr. Schwartz in the early
evening of February 10 to inform him of the subcommittee’s decision
and also to tell him that a subpoena was to be issued for him to
testify the next morning.
He told me he had copies of every important document from the
committee files in a trunk and two cardboard boxes. “Someone should
have knowledge of what is in these records,” he said, “so it will
be possible to force the subcommittee to continue hearings.” If
something dramatic wasn’t done, he was convinced the investigation
would never get off the ground.
Dr. Schwartz asked if I wanted the copies of documents to take to
members of Congress who had shown an interest in the problems of the
regulatory agencies. I said I should not take possession of documents
which might be considered the property of the House subcommittee. But
since the documents were legally in his custody, I suggested that he
could take them to the apartment of Senator John J. Williams, the
Delaware Republican, and I would be happy to accompany him.
I had talked with Senator Williams of improper pressure on the
regulatory agencies and thought he would take the records. He had
fought against tax scandals in the Truman administration, but I
regarded him as an objective crusader who would call the strikes
the same way if the Eisenhower administration were involved in
wrongdoing. I had hoped that Senator Williams might be able to give
the investigation of regulatory agencies the same prodding that he
had given to the House tax scandals investigations in 1951 and 1952.
Dr. Schwartz said he would be willing to turn the papers over to
Senator Williams and explain them to him in detail.
I headed at once for his apartment. When I arrived, Dr. Schwartz had
the trunk and two boxes of documents ready to go. Mrs. Schwartz was
nervous about her husband’s going, however. I assured her that for
practical political reasons it was unlikely that the House would take
action against Dr. Schwartz for delivering the documents to a United
States Senator. As quickly as possible we carried the heavy trunk and
boxes to my car. At the Mayflower Hotel, we hired a porter to wheel
them on a baggage cart to the apartment of Senator Williams. While
we were at the Williams apartment, Dr. Schwartz received an urgent
telephone call from his wife. He took it in private in another room.
Mrs. Schwartz said she had been called by a reporter who told her
that since Senator Williams was a Republican, he would probably turn
the documents over to Sherman Adams at the White House. The fear
was groundless, but Mrs. Schwartz was frantic and made her husband
promise to leave the Williams apartment and take the documents with
him.
Dr. Schwartz returned to the room and told the Senator it had been
suggested that the documents might be taken to Senator Wayne Morse,
the Oregon Democrat. We excused ourselves to go telephone Senator
Morse and left Senator Williams alone with the documents. I made the
call. As I was certain he would—for I had previously talked with
him about the regulatory agency scandals—Morse assured me he was
interested in reviewing any documents Schwartz had available.
When we arrived at his apartment, Senator Morse greeted us calmly
and assured us that he wanted the documents because of his official
interest in the regulatory agencies, and we left them with him.
Now we felt certain we had created a situation in which it would
be virtually impossible for the House to avoid going forward with
the investigation. The word would move fast that the files had been
examined by a leading Democratic Senator and a leading Republican
Senator. It would create a good many complex problems for any House
members inclined to ignore or hide the evidence and leads that
Schwartz had accumulated.
Before the Schwartz files were returned to the House subcommittee,
Senator Morse read them. It was reported to me that most, if not
all, of the documents were photographed before they were sent on to
Representative Oren Harris, the Arkansas Democrat who was chairman of
the House Committee on Interstate and Foreign Commerce.
Until now it appeared Sherman Adams had erected a total shield from
investigations by Congress. He had used “executive privilege” to
avoid testimony in the Dixon-Yates case. He had been able to make his
contacts at the Securities and Exchange Commission without undergoing
questioning by the investigating subcommittee which was examining why
the SEC had postponed a hearing on Dixon-Yates at a crucial point.
It was Sherman Adams who scribbled his initials on papers to indicate
he had approved them for President Eisenhower’s signature. Sherman
Adams was on the telephone daily to United States senators and
congressmen on knotty legislative and patronage matters. Sherman
Adams ironed out the problems between cabinet officers, and he dipped
his hand into virtually every department from the first months of
the Eisenhower administration. Always it was understood that Sherman
Adams was speaking for President Eisenhower, or was acting for
President Eisenhower. Even when he didn’t say, “This is what the
President wants,” it was understood he was speaking for President
Eisenhower.
The legend grew that Sherman Adams was cold and clean as New
Hampshire granite—a barrier against the corrupting influence of
personal and political favoritism. Coming on the heels of the Truman
administration, such a reputation was much admired even when it was
known that Adams was not well liked. There were countless stories
of his undiplomatic, even rude, treatment of Republican political
figures who were interested in a return to some good plain political
patronage. It all added to the legend that Sherman Adams was one of
the finest influences the Eisenhower administration had brought to
Washington.
But there were also those stories of the calls that Sherman Adams
made on members of the so-called “independent regulatory agencies.”
One might commend the White House for keeping a firm hand on agencies
directly under the control of the White House, but the regulatory
agencies were another matter. Politics were supposed to be kept out.
Shortly after the midnight ride with Dr. Schwartz, I came into the
possession of copies of two letters from “Sherm” Adams to “Murray”
Chotiner, an attorney for North American Airlines. In the letters,
“Sherm” had informed “Murray” that he had discussed the North
American Airlines case with the acting head of the CAB. It appeared
to be a one-party contact with an official of the CAB during the
period when a case was being decided. It appeared to be a direct
violation of the rules of the CAB if Adams had done what he stated
in the letter he had done for Chotiner, a politically influential
California lawyer. I wrote my story on the facts available in the
secret files of the House subcommittee.
I caught President Eisenhower’s eye early in the February 26, 1958,
press conference and he recognized me with a trace of reluctance.
“Mr. President,” I started. “Sherman Adams has written a letter in
which he states that he went over the details of a pending Civil
Aeronautics Board matter with an acting chairman of the CAB.
“It is contended up on Capitol Hill, that this was a violation of a
CAB rule which states—it is improper that there be any communication,
private communication that is, by any private or public person with
a member of the CAB, with the examiners of the CAB, with the staff
while the case is pending, except in those matters prescribed by law.
“I wonder if you could tell us whether you felt Mr. Adams was acting
within the proper scope of his authority in this particular matter.”
President Eisenhower pleaded ignorance of news stories that had been
on page one for days:
“Well, again you are bringing up a thing I have not heard of; but I
will say this: There is a number of cases that come under the CAB
that the White House must act on. Any time that they refer or have
anything to do with the foreign routes that CAB has authorized, or
refused to authorize, then the President himself is required to make
the final judgment.”
The President was confused. He was assuming that the case was a
foreign airline route case to which normal rules do not apply. The
case about which Adams had written the letter, however, involved a
domestic airline, North American Airlines.
“And, very naturally,” President Eisenhower continued, “my staff
would want to get any additional information that I need. So, I would
assume it is so on that case.”
“Mr. President,” I broke in to explain that the North American case
was not a foreign line, but was a domestic airline. “On that line—”
I was cut off by the President’s cold stare, and abrupt comment: “I
don’t want anything more about that.”
There was no opportunity to ask another question, but the record was
much clearer to the nation’s editorial writers and cartoonists than
it was to President Eisenhower.
“Whether the President wants it or not, there ought to be ‘more
about that’ at the very next news conference,” commented the St.
Louis _Post Dispatch_ in a hard-hitting editorial. The editorial
pointed out that in the face of rules that would make Adams’ contacts
“improper,” President Eisenhower had “not only evaded a direct
question about whether Mr. Adams’ intercession was improper but
having evaded it, told Reporter Mollenhoff: ‘I don’t want anything
more about that.’”
The Washington _Post_ commented that President Eisenhower’s answer
“gave a damning indictment of his own unfamiliarity with important
national affairs yesterday in his fuzzy comments on the relationship
of Sherman Adams to the Civil Aeronautics Board.
“For days there have been stories about the accusation by Dr. Bernard
Schwartz that Mr. Adams in 1953 discussed the status of North
American Airlines with the acting chairman of the CAB on behalf of
the airlines counsel, Murray Chotiner. Yet Mr. Eisenhower said,
almost incredibly, that he had never heard of the matter.”
The _Post_ editorial concluded:
“Is it that Mr. Eisenhower just isn’t interested, or is it that Mr.
Adams, who attempts to ease the Chief Executive’s burdens, filters
what the President reads?”
Reports were already circulating in Washington that Sherman Adams
had made some contacts at two other regulatory agencies on behalf of
Bernard Goldfine, a wealthy New England industrialist. However, the
claim of “executive privilege” still spread its protective covering
over Sherman Adams and others at the White House. The officials of
the regulatory agencies continued to refuse to give testimony on
contacts with the White House. And, of course, at that stage Sherman
Adams had no intention of giving public testimony.
Then, suddenly, the House investigation became a hot issue. Evidence
was developed that Richard A. Mack, a member of the FCC, had been
involved in some rather complicated financial dealings with a Miami
attorney, Thurman A. Whiteside. Whiteside had loaned him money, and
there was also an arrangement through an insurance firm which was
putting a little extra money in Mack’s pocket. Whiteside checks
totaling $2650 were received by Mack while he was on the FCC, and
Whiteside also gave him a one-sixth interest in an insurance company
that sold $20,000 worth of insurance to one of the applicants in the
FCC case involving Miami Channel 10.
This case was to lead to the indictment of Mack and Whiteside for
alleged conspiracy to fix the award by FCC on Miami Channel 10. Mack
was forced to resign from the FCC after a pathetic appearance before
the House Legislative Oversight Subcommittee.
In the criminal trial, Mack admitted receiving financial help and
“loans” from Whiteside, but contended that it had nothing to do with
the award of Channel 10 in Miami to Public Service Television, Inc.
Mack contended it was merely an extension of the favors Whiteside had
given him since they were boyhood friends. The first trial ended in a
hung jury.
The former FCC member never went to trial again. In court he was
described as ill and alcoholic, and unable to stand the ordeal of a
trial.
Whiteside was tried a second time, and was acquitted on the criminal
charge. A short time later, in May 1961, Whiteside was found dead in
his Miami office. Death was caused by a self-inflicted bullet wound.
The FCC in a later ruling ordered Public Service Television to stop
using Channel 10. The FCC had concluded that the activities of Mack,
Whiteside, and others constituted improper conduct in connection with
the application of Public Service Television.
The United States Court of Appeals upheld the FCC ruling that Public
Service and two other applicants had disqualified themselves by
improper practices. The Supreme Court refused to hear an appeal.
Dr. Schwartz and his investigators had pinned down the essential
details on the Mack case before Schwartz was fired, and the hearings
demonstrated fully the type of activity that at least one of the
regulatory agencies had concealed with the claim of “executive
privilege.” By this time, it was clear to everyone that there were
a good many things wrong with the operations of the “big six”
regulatory agencies. There was no proof that they were filled with
corruption, but there was adequate evidence of a widespread laxity
that needed to be examined and exposed.
There had been only the rumors of the Adams-Goldfine relationship
while Dr. Schwartz was with the House subcommittee, but once the
hearings on Mack were moving, the whole subject of one-party contacts
with regulatory agencies came in for closer scrutiny.
Reports that Adams had received a vicuña coat and a $2400 oriental
rug from Goldfine evoked interest in Goldfine. These reports were
followed by the revelation that Goldfine had lavishly entertained
Adams at hotels in New York and Boston, and during the same period of
time Adams had made inquiries for Goldfine at the SEC and FTC.
Sherman Adams whipped out a letter which he believed would still the
outcry against him. It was a vague letter that simply admitted he
had contacted the Federal Trade Commission and the Securities and
Exchange Commission on some of Goldfine’s problems. However, Adams
said he had requested no favors for his friend Goldfine, but ignored
the fact that any call from Sherman Adams would flag a case for
special attention. The benefits known to have been received by Adams
were small, but his relationship with the notorious Goldfine was to
become a source of continued embarrassment to the White House. The
embarrassment finally forced Adams out of the White House into the
open arena of congressional questioners.
Adams went before the House Legislative Oversight Subcommittee in the
crowded House Caucus Room. It was his first time to give testimony,
and he hoped that it would stop the criticism. President Eisenhower
admitted that Adams had been “imprudent” in his relationship with
Goldfine. But, the President said, “I need him.”
Now nothing could stop the criticism, public and private. It seemed
that every week brought more and more revelations of the questionable
activities of Bernard Goldfine. There were charges of mislabeling
of woolen goods filed by the FTC, and records showed Goldfine firms
involved in a long series of mislabeling incidents. Goldfine had not
filed proper reports with the SEC for several years. Also, Goldfine
had refused to testify on a mysterious $700,000 in cashier’s and
treasurer’s checks he had taken out of his businesses.
Hailed before the committee, Goldfine took the Fifth Amendment,
claiming that to answer the questions might tend to incriminate him.
Every day that Bernard Goldfine was on the witness stand or otherwise
in the public eye was pure misery for the Republican political party.
It was apparent that the Republicans would be saddled with Goldfine
as long as Sherman Adams remained the number one assistant to
President Eisenhower.
And so, on September 22, 1958, Sherman Adams resigned. In a
nationwide television broadcast, he said he had “done no wrong” but
was the victim of “a campaign of vilification.”
Only five days later, a federal grand jury in the District of
Columbia returned the indictment charging Richard Mack, the former
FCC commissioner, with conspiracy to defraud the government. The
indictment charged that Thurman A. Whiteside, a Miami lawyer, had
bought Mack’s vote in connection with the award of Miami television
Channel 10.
Some people paid a heavy price for what had once seemed to them to be
clever secretive manipulations to influence governmental decisions.
Whiteside crumpled under the strain and died by his own hand. Mack
cringed before the court with a plea that he was too ill and too
alcoholic to stand trial.
Even a million-dollar fortune couldn’t save Bernard Goldfine from
the disgrace of a federal prison term. He hired the most expensive
lawyers and engaged in every conceivable maneuver to stay out of
prison, but in the end lost his freedom and his “friends.” He went
to prison on a criminal charge of evading more than $800,000 in
federal taxes. Although he had boasted bravely that he would not
co-operate with the Justice Department in explaining what he did
with the missing $800,000, his health broke while in prison and
left him a shattered shell of his former self. Later the Internal
Revenue Service filed liens against his property totaling more than
$7,000,000. The Goldfine magic had turned to mud.
These cases had dramatized the full evil of secret government. The
problems of Adams rose directly from the failure of the White House
to recognize the dangers involved. It was not necessary to read evil
intent into the origin of the blanket secrecy. It was bad enough that
the Administration had so self-satisfiedly assumed that things were
being handled efficiently and properly and that the press and the
Congress were better off kept in the dark where they couldn’t stir up
trouble.
CHAPTER XII
Ike’s Lawyer and the Law
William Pierce Rogers was nominated to be United States Attorney
General in the fall of 1957. He had served as Deputy Attorney General
under Herbert Brownell from the time the Eisenhower administration
came to power in January 1953. When he was nominated for the top
post, he was forty-five years old and had been included by President
Eisenhower on a select list of bright young Republicans qualified as
presidential or vice presidential timber for 1960. He was regarded as
the closest friend of Vice President Richard Nixon.
The Senate Judiciary Committee hearing on the Rogers nomination had
barely started on January 22, 1958, when Senator Estes Kefauver
raised the question of the Eisenhower administration’s broad use of
“executive privilege.”
“Mr. Rogers,” the Tennessee Senator said, “many of us in the Senate
and in the House have been increasingly alarmed over the expansion
of the pleading of privilege on information which congressional
committees desire, and feel they have a right to have.”
Senator Kefauver explained the philosophy behind the need for full
information in a democracy, and then moved to the specific problem:
“I think we all appreciate the fact that under the precedent that
when the President has matters up with his Cabinet that he wants to
withhold them from public inspection, he has that right; but we find
here on numerous occasions when the arms of Congress—the Securities
and Exchange Commission, the Federal Communications Commission, the
Civil Aeronautics Board, and various and sundry agencies set up by
the Congress to administer laws which our Congress has the prime
responsibility for administering—they, themselves, are asserting the
privilege and they are deciding whether they want to withhold the
information or not—things the President does not even know anything
about—so that committees of Congress are being hampered in their
effort to get information.”
Senator Kefauver started to read from a report of the House
Government Operations Committee: “The most flagrant abuse of the
so-called legal authority is the misuse of the May 17, 1954,
letter from the President to the Secretary of Defense at the time
of the Army-McCarthy controversy.... It seems inconceivable that
19 Government departments and agencies would cite this letter as
a shadowy cloak of authority to restrict or withhold information
from the Congress and the public. This flimsy pretext of so-called
legal authority only serves to demonstrate to what extent executive
departments and agencies will go to restrict or withhold information.”
Senator Everett Dirksen, the Illinois Republican, interrupted to
emphasize that it was a House committee report Senator Kefauver was
reading, and that “I want to have that clear.”
Senator Kefauver continued: “We had a case here [meaning among
Senate committees], where the head of the Securities and Exchange
Commission pled privilege to his conversation with Sherman Adams,
when apparently Mr. Adams was trying to get a hearing postponed in a
quasi-legislative agency.
“We have a report by Senator Olin Johnston’s committee in which they
take great exception to the pleading of privilege by Mr. [R. W.
Scott] McLeod in the Ladejinsky case with which you are familiar. We
had the Al Sarena [mining land grant] plea of privilege. We had some
pleas of privilege in connection with Mr. Gordon Gray when he was
dealing with rapid tax amortization, so it is getting to the point,
Mr. Rogers, where not the President but any of these agencies ...
anybody who does not want any information to be made public, just
pleads privilege.”
Senator Dirksen intervened to volunteer comment “before the Attorney
General replies, because I was a part of the proceeding on the
McCarthy committee, and I was a part of the proceeding involving the
Chairman of the Securities and Exchange Commission.”
“If it is all the same to Senator Dirksen, I had rather ask my
questions, and you may ask them in your time,” Kefauver replied.
“I do not think there has been any great tendency [to secrecy] in the
last few years,” Rogers said. “I was counsel for committees in ...
1947, 1948, and 1949 ... and I do not believe that the problems are
much different now and then.”
Then Rogers sought to postpone further discussion. “I would like, I
think maybe in the interest of time, to delay a full discussion of
this, because I have agreed with Senator Hennings to appear before
his committee to discuss this whole matter.”
Senator Kefauver said he would be glad to see the whole matter
examined thoroughly by Senator Hennings, but added: “I do think at
this time on such an important matter that you should give us some
expression of your position, or what your position will be.”
“On the general subject matter,” Rogers began, “I believe in
the value of congressional investigations.... I think they have
contributed a great deal to the success of our country, and I think
that the executive branch of the Government has the responsibility to
make the information available to congressional committees to the
fullest extent that it is possible to do so.
“On the other hand,” Rogers went on, “I think that the history of
the country has indicated that there are exceptions, and that those
exceptions have been recognized by each administration throughout
history. I do not think that there is any reason why there should be
much general disagreement, and I think if we had a chance to discuss
those things in detail that probably our views would be pretty much
the same.”
Senator Kefauver asked Rogers about the use of “executive privilege”
by officials of the so-called independent regulatory agencies.
“Well,” Rogers said, “I think that possibly there ought to be an
even greater attempt made to give all the information to Congress
possible, in those agencies.... I think you can make mistakes of
judgment if you generalize too much on those things, and I think
there has been a tendency to do that.
“I remember debating the subject with Russ Wiggins ... he and Mr.
Clark Mollenhoff have been the leaders, and when you get down to it
there is not too much in the way of fact. There has been a lot of
general observation, but I would like to come up, if you do not mind,
and discuss this at length with Senator Hennings’ subcommittee.”
I knew that Russ Wiggins was well informed on the specific instances
of arbitrary withholding. I had tried to discuss a number of specific
cases with Rogers but always found him unavailable. Additionally,
Senator Hennings had found some difficulty in getting an agreement
from Rogers to appear before his Judiciary subcommittee.
“I had not quite understood from your last letter,” Senator Hennings
told the nominee, “that you were willing to appear before the
Constitutional Rights Subcommittee. You did not say that you would
not [appear], but I did not quite understand you to say that you
would.”
Rogers’ nomination was confirmed by the Senate, and by the time he
appeared before the Hennings subcommittee six weeks later he had
become the leading spokesman for the ultimate in secrecy under the
claim of “executive privilege.” Rogers claimed that the executive
branch of the government could properly refuse to give Congress any
document that included any advice, recommendation, or conclusion.
Although the Constitution says nothing about such a right, Rogers
contended that the executive branch did have an “inherent right” to
refuse to give testimony or produce records. He further contended
that no law of Congress could force production of such records.
This in essence was the position he presented to the Constitutional
Rights Subcommittee on March 6, 1958. In addition, smiling,
back-patting Bill Rogers now also claimed that the so-called
independent regulatory agencies—the FCC, ICC, SEC, CAB, FTC, and
FPC—could exercise “executive privilege.” Such a position at the
nomination hearing might have created serious problems on his
confirmation, for at that time the House Legislative Oversight
Subcommittee was engaged in the probe of White House and political
influence on the regulatory agencies recounted in the foregoing
chapter.
At issue when Rogers testified on March 6 was the question of whether
the Congress should amend the “Housekeeping Statute” (5 U.S.C. 22)
by stating that this statute covering custody of records could not
be used as a justification for withholding records from Congress or
the public. Rogers opposed the amendment but said that if it passed,
it still could not interfere with the broad right he claimed under
“executive privilege.”
When Representative George Meader, the Michigan Republican, learned
of the Rogers testimony he was enraged. Meader and Rogers had both
served as counsel for Senate investigating committees in the late
1940s, and Meader had firsthand knowledge of the investigations
that Rogers conducted of the Truman administration. He also knew
that Rogers had been sharply critical of secrecy in the Truman
administration.
“Curious things seem to happen to individuals when they move from one
end of Pennsylvania Avenue to the other,” said Representative Meader.
He urged the Congress to “strike down” Rogers’ claim with legislation
declaring specifically that records must be given to Congress. He
referred to the “executive privilege” as “nonexistent imagery” which
had no support in the Constitution, in the laws, or in the decisions
of the federal courts. Throwing aside all political partisanship,
Republican Meader told the House that if the Rogers doctrine
prevailed the executive will “become the master, not the servant, of
the people.”
Senator Thomas C. Hennings, whose subcommittee had heard the Rogers
testimony, was equally alarmed. A few days after the hearings
Hennings received a letter from Rogers designed “to clarify” his
testimony. On March 6, Rogers had testified:
“Now I don’t recall any instance when Washington, Jefferson or Truman
or anyone else ever relied upon this [the Housekeeping Statute] as a
basis for ‘executive privilege’ for withholding information. It is
something entirely different. This is a bookkeeping statute which
says they keep the records, they hold them physically. It doesn’t
relate at all to ‘executive privilege’.”
While stating that the Housekeeping Statute included no right to
withhold information, Rogers in the same hearing admitted that it
had been erroneously used by officials who had meant to use the
“executive privilege” to keep government records secret.
In a letter that followed his testimony, however, Rogers completely
reversed himself and stated that the Housekeeping Statute is “a
legislative expression and recognition of the ‘executive privilege’.”
Hennings replied that Rogers’ letter of explanation was
“incompatible” with his testimony. He said that Rogers’ letter was
not only “inconsistent” from a legal standpoint, but “completely
baffling when compared with his oral testimony. In almost two
years of investigations and study of the subject of freedom of
information,” Hennings continued, “I have come across a number of
cases where various misguided, secrecy-minded executive department
officials, eagerly seeking authority to justify withholding
information from the Congress and the public have tortured the
simple provisions of the [law] ... beyond all recognition. This
interpretation now offered by the Attorney General in his letter
surpasses all of these others so far.”
On the specific point at issue, Chairman Hennings wrote that
he believed the Housekeeping Statute had no connection with
constitutional claims of “executive privilege.” “I am amazed at the
Attorney General’s assertion that it does. I think the Attorney
General’s letter presents overwhelming proof of the urgent need to
amend [the law] ... to make clear beyond any doubt that Congress
intended it to be merely a housekeeping statute and not an instrument
of censorship.”
Rogers’ testimony had sent his critics scurrying to the records.
When he was chief counsel for a Senate subcommittee investigating a
loyalty case in the Truman administration, Rogers had been balked
by an executive order issued by President Truman barring Congress
from personnel files in loyalty investigations. The records showed
that Rogers had fought against this secrecy, limited as it was. The
committee report, written under his direction, stated:
“Congress is entitled to know the facts giving rise to the requests
and to satisfy itself by firsthand information that the reasons are
valid. Any other course blinds the legislative branch and permits
action only when the president provides a ‘seeing-eye dog’ in the
form of a request for legislation required by the executive.
“If the subcommittee is denied the right to examine the facts in
specific cases where there appears to be a breakdown in the loyalty
program, it cannot make a complete appraisal of the program.”
I had the switch in Rogers’ thinking very much in mind when, less
than a month after his appearance, the Hennings subcommittee called
me to testify as a representative of the freedom of information
committee of the national journalism fraternity, Sigma Delta Chi.
I told the subcommittee I opposed any general legislation to allow
officials to hide records, and felt that in those areas where secrecy
is needed it could be covered by specific legislation.
“We have seen the proof year after year,” I testified, “that the
unlimited grant of the right to hide the record will lead to abuse of
power, corruption and mismanagement.
“Of course, the Attorney General tells us he does not believe that
secrecy is being used to hide errors or crimes in the executive
branch of Government. Mr. Rogers felt different about this ten years
ago. Then he was ... busy digging out and exposing the crimes,
favoritism, and errors which he felt were being covered up by
secrecy.... We might say that Mr. Rogers was highly successful.”
I continued:
“Mr. Rogers may feel things are different today. However, we can
never trust the judgment of those in power who might be inclined
to make self-serving declarations on their own virtues. This has
happened often in the past. We know now that at least eight or ten
congressional committees have made it clear they are not as sure as
Mr. Rogers that secrecy is not being used to hide crimes, favoritism,
and blunders today.
“It is not necessary to arrive at any conclusion on the virtues of
this administration or any administration, to conclude that secret
government is not in keeping with democracy.
“Even if we accept an administration’s declaration on the many
virtues it possesses, we must be guided by this principle: ‘Never
trust a good man to make secret decisions for you, if it would
frighten you to lodge the same power in an evil man or a man who is
on the other side of the political fence.’”
In the course of my testimony, Senator Roman Hruska, the Nebraska
Republican, sought to defend the Eisenhower administration’s claim of
“executive privilege” in the May 17, 1954, letter:
“He [President Eisenhower] directed that the Secretary of the Army
instruct his employees not to disclose information, and the large
segment of the American press at that time hailed that decision as
being something very fine and very wise and very just.”
No one was going to get me to defend those uninformed editorials
that had been based on the belief that the May 17, 1954, letter was
a single shot of secrecy aimed at Senator McCarthy. I was on much
firmer ground when the subject switched to the case of _McGrain v.
Daugherty_ (1927) in which the Supreme Court stated that the power to
compel witnesses to produce records and testify is a necessary part
of the legislative function.
“Under the Rogers doctrine, the Congress is reduced to a third-rate
division of Government,” I said. “Its investigations can be limited
to what officials in the executive branch of the Government feel
it is wise to produce. If the Government has full discretion as to
which facts will be made available to the public, the press, or the
Congress, then there is no more than half freedom [to investigate].
“I do not want to be limited in my reporting to the self-serving
declaration from men like Richard A. Mack as to what a fine job is
being done at the Federal Communications Commission.
“I do not want to be limited to the comments of T. Lamar Caudle,
Assistant Attorney General under the Truman administration, as
to what a fine job is being done in the prosecution of tax-law
violations.
“I do not want to be limited to the comments of Harold Talbott,
former Air Force Secretary, as to how he is handling Air Force
procurement.
“I do not want to be limited to the statements of former Secretary
of Interior Fall that the handling of Teapot Dome oil reserves was
really in the public interest.”
Also called to testify for Sigma Delta Chi was V. M. (Red) Newton,
the managing editor of the Tampa _Tribune_. Herbert Brucker, editor
of the Hartford _Courant_, testified on behalf of the American
Society of Newspaper Editors. And Harold Cross, the able lawyer for
the A.S.N.E., submitted a legal analysis.
Nearly all newspaper, broadcasting, and legal organizations favored
the Moss-Hennings amendment to the Housekeeping Statute. It passed
Congress with ease despite Administration opposition and on August
12, 1958, President Eisenhower signed it.
The amendment to the Housekeeping Statute said simply: “This section
does not authorize the withholding of information from the public or
limiting the availability of records to the public.” However, as he
signed it into law, President Eisenhower said: “It is not intended
to, and indeed could not, alter the existing power of the head of
an executive department to keep appropriate information or papers
confidential in the public interest. The power in the executive
branch is inherent under the Constitution.”
President Eisenhower had obviously accepted the Rogers theory in
full. He had accepted the misleading precedents set out in a Justice
Department memorandum in which it was represented to him that George
Washington had started all this withholding from Congress. He had
been convinced by his subordinates that the “executive privilege”
claims made between 1954 and 1958 usurped no more authority than
George Washington had. And he had been convinced by some of his
advisers that he would be weakening the presidency if he did not
stand by the extreme “executive privilege” doctrine.
Robert Donovan, in his book _The Inside Story_, related that
President Eisenhower “told the Cabinet he wanted it clearly
understood that he was never going to yield to the point where he
would become known as a President who had practically crippled the
Presidency.” This determination accounted for President Eisenhower’s
frequent use of the comment that he was merely reiterating a
principle used by Presidents “back to the time of George Washington.”
The “historic precedents,” as I have indicated earlier, did not
stand up under close investigation. In an article for the Federal
Bar _Journal_ of January 1959, J. Russell Wiggins, executive editor
of the Washington _Post and Times Herald_, told how the historic
background—as President Eisenhower understood it—was first described.
It appeared in the Federal Bar _Journal_ on April 1949, in an article
by Herman Wolkinson, a Justice Department lawyer. Wiggins pointed out
that an almost identical copy of the Wolkinson memorandum accompanied
the May 17, 1954, letter written by Eisenhower to Defense Secretary
Wilson. An expanded version of the same material was used by Attorney
General Rogers in testimony before Congress.
Wolkinson’s article had stated:
“In the great conflicts which have arisen in the administrations
of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt, and
Herbert Hoover, the Executive has always prevailed.”
Wiggins’ painstaking research had convinced him quite otherwise.
“This contention is simply not supportable even on the basis of the
historical episodes to which Mr. Wolkinson alludes and which the
Department of Justice has incorporated in its memorandum.”
Getting down to the specific episodes, Wiggins told how Congress,
in March 1792, had passed a resolution to initiate an investigation
of the disastrous expedition into Indian territory by Major General
St. Clair. The investigating committee had asked for all records and
papers dealing with the expedition. President Washington did call
a cabinet meeting to discuss whether the papers should be given to
Congress but finally concluded “to make all the papers available” to
Congress. (See Chapter II.)
“If this case is precedent for anything,” wrote Wiggins, “it is
a precedent to show that the first President was in favor of
disclosure, as a principle of government, and as a constitutional
matter, except in some possible instances which might later arise,
but which in this affair did not exist.”
There was one time when President Washington did refuse to send
papers to the Hill. This was when the House of Representatives
asked him for the instructions and papers furnished our ambassadors
in negotiating the Jay treaty. “But,” said Wiggins, “this no more
sustains the claim to sweeping powers of non-disclosure than the
first episode. Here, President George Washington refused the papers
on the sound and specific constitutional ground that the Senate and
not the House was entrusted with authority to advise and consent on
the making of treaties.”
After reviewing most of the so-called “withholding precedents” used
by Wolkinson and President Eisenhower, Wiggins pointed out that
President Jackson and President Tyler had bitterly opposed giving
papers to Congress but in the end had forwarded all records requested.
Concluded Wiggins: “In most of Mr. Wolkinson’s examples, the
Congress prevailed, and got precisely what it sought to get.”
Because Senator Hennings and Congressmen Moss and Meader had pushed
through the amendment to the Housekeeping Statute over Administration
objections, they realized that reliance upon “executive privilege”
could now become all the more stubborn and Congress would need to
take further action.
“In the minds of most people in this country, governmental censorship
probably is associated most closely with war or dictatorship,”
Chairman Hennings said. “Official suppression of the truth generally
is regarded as something alien to the American tradition of freedom
and incompatible with our system of self-government. Yet, despite
these national attitudes, censorship and suppression of the truth are
slowly becoming more and more commonplace in our federal government,
and secrecy threatens to become the rule rather than the exception.”
From the Republican side, the two Democrats were joined by
Congressman Meader. “The net effect of the Attorney General’s
statement,” said Meader, “is that the executive branch of the
Government will give to the Congress or its committees such
information as the executive branch chooses to give and no more. I
wonder if the American people and their elected representatives in
Congress appreciate the significance of this ... pronouncement of the
executive branch of the Government.”
Meader declared that the Rogers doctrine “makes possible a rigged,
distorted, slanted” picture of what is going on in a Government
agency.
“The unlimited discretion in the executive branch of the Government
over access to information in its possession asserted by the Attorney
General, would vest in the departments the power by ex parte
presentations of half truths to build a record which would permit
only one conclusion.”
In an analysis that filled six pages in the _Congressional Record_,
Meader pointed out that Rogers admitted there was “no judicial
precedent governing this question” of “executive privilege.” “More
study, not less, is required for intelligent policy making in these
days,” he pleaded. “This asserts a doctrine of executive power which
I believe is wholly out of keeping with our concept of democracy and
self-government. It smacks of totalitarianism, and I hope it will
never prevail in this country.”
But the nonpartisan plea for reason and law made little impression.
The Eisenhower administration was smug in its popularity. Leaders of
Congress were too busy with political chores to pay attention to any
problem not connected with the business of getting re-elected. The
press could not or would not think logically or consistently on the
subject. Secrecy that stood in the way of an individual reporter or
newspaper was deplored by that reporter or newspaper, but by too few
others. For the most part the attack on secrecy lacked co-ordination,
consistency, and enlightened concern.
CHAPTER XIII
Muzzling the Public’s Watchdog
Joseph Campbell had been treasurer and vice president of Columbia
University while General Dwight D. Eisenhower was president of that
institution. A pleasant and friendly relationship developed between
the two men, and General Eisenhower was attracted by Campbell’s
competency in accounting and finance. After General Eisenhower was
elected President, he named Campbell a member of the Atomic Energy
Commission in 1953.
A year later President Eisenhower named Joseph Campbell Comptroller
General of the United States in charge of the General Accounting
Office (GAO). It is an important fifteen-year-term office designed to
serve the Congress as the “financial watchdog” of all spending in the
executive departments and agencies. No single office in the United
States is more vital to the task of forcing the sprawling federal
government to administer the laws fairly and make expenditures
according to the laws.
The GAO was established in the Budgeting and Accounting Act of
1921 as an arm of the legislative branch of government. Once the
Comptroller General has been appointed by the President, he becomes
an agent of the Congress. To assure the independence of the office,
the Congress established the long term and provided that the
incumbent could be removed from office only by joint resolution of
Congress or by impeachment.
The Budgeting and Accounting Act also gave the GAO the power to
examine all information and reports in order to determine whether
money was being spent in a legal manner. The section on access to
records states:
“All departments and establishments shall furnish to the Comptroller
General such information regarding the powers, duties, activities,
organization, financial transactions, and methods of business of
their respective offices as he may from time to time require of
them; and the Comptroller General, or any of his assistants or
employees, when duly authorized by him, shall for the purpose of
securing such information, have access to and the right to examine
any books, documents, papers, or records of any such department or
establishment.”
The law allowed but one exception to the Comptroller General’s legal
right to demand and obtain access to “records of any such department
or establishment.” That one exception gave the Secretary of State
the power to determine whether there should be a publication of
expenditures of funds used in dealings or treaty making with foreign
nations.
The law should have been clear to anyone. The GAO auditors were
to be given access to all papers and all records dealing with
the expenditure of federal funds. It was the only way they could
carefully examine contracts and determine whether any frauds or
illegal procedures were involved.
But through the years, as might be expected in a bureaucracy, some
officials had been reluctant to put all the cards on the table for
the GAO. The reluctance increased in proportion to the bungling,
mismanagement, or fraud that might be uncovered by prying GAO
investigators.
In the first years of Joseph Campbell’s tenure as Comptroller
General, his office faced some of the normal bureaucratic reluctance.
But, on the whole, the holding back was spotty. Usually the
departments produced the records demanded when the inspection
provisions of the Budgeting and Accounting Act were pointed out to
them.
By 1958, however, the use of “executive privilege” had become so
widespread that it was interfering with the work of the GAO. The
interference gradually came to light through the work of an Armed
Services subcommittee headed by Representative F. Edward Hebert, the
Louisiana Democrat. Chairman Hebert had asked Comptroller General
Campbell to do a thorough study of the multibillion-dollar Air Force
ballistic missile program. He had also set the GAO on the trail of
a dozen other smaller projects where it appeared that influence,
favoritism, incompetence, or fraud had cost the taxpayers millions of
dollars in excess costs.
To Chairman Hebert this unjustified secrecy was serious business.
For nearly ten years he had been engaged in important investigations
which had proved that the military services could not be relied upon
to police their own spending. It was vital that there be an adequate
policing job on a Defense budget that totaled about 40 billion
dollars a year—approximately half of the entire federal budget. Year
after year, Chairman Hebert and Chief Counsel John Courtney had
conducted hearings showing incredible waste and inefficiency. The
staff of the Hebert subcommittee was small, and Chairman Hebert was
forced to rely on the GAO for the major part of the auditing work and
legal studies.
The Defense Department could not avail itself of the claim of
“national security” when the GAO auditors started an investigation
because the GAO auditors were cleared to handle “Secret” and “Top
Secret” classified material in the same manner that Defense officials
were. Lacking the “national security” claim, the military services
latched onto the claim of “executive privilege.” One directive
followed another, gradually pulling down the secrecy curtain. The
periodic, quiet protests by Campbell went unnoticed by the public
until the usually mild-mannered Comptroller General fired off a
letter to Defense Secretary Neil McElroy.
“These restrictions,” Campbell wrote, “could seriously hamper the
General Accounting office in performing its statutory responsibility
and will impede the performance of our work.”
He pointed out to McElroy that his GAO auditors could not do their
job in the face of directives that prohibited them from examining the
Inspector General reports, and allowed them only a summary of reports
as approved by the Secretaries of the various armed services.
In a letter to Chairman Hebert, Campbell made his complaint more
specific:
“Any information or factual data directly bearing on a program of
activity subject to audit by the General Accounting Office should not
be withheld or subjected to procedures designed to screen official
documents, papers, or records, by the authority or activity being
audited.”
Later, in a letter to the Moss subcommittee on Government
Information, the Comptroller General stated that he was seeking to
make a study of the activity of the Inspector General of the Air
Force to determine how effective the internal investigations had been.
He stated that to conduct such an investigation, the GAO inspection
must include:
1 A survey of the Air Force procurement methods (advertising versus
negotiation).
2 A survey of procurement quantitative and qualitative program
changes.
3 A survey of contract cost overruns.
“It is essential that such reports be made available to the General
Accounting Office in order that we can evaluate the effectiveness
of the department’s system of internal control and to preclude
unwarranted and unnecessary duplication of effort in the internal
audit and the independent reviews made by this office,” Campbell
wrote.
“There is no basis why reports on the subject of the types pointed
out above should not be made available to the General Accounting
Office unless the purpose is to delay or hamper the efforts of the
office to disclose all facts bearing upon the activity or area under
audit.
“We believe that any departmental regulation denying to the General
Accounting Office access to any report relating to ‘internal audit
and control’ is contrary to the law.”
It should be remembered that this was not a Democratic congressman
or senator accusing a Republican administration. This was Joseph
Campbell, long-time friend of President Eisenhower, charging that the
Eisenhower administration was acting “contrary to the law” in the
claim of an “executive privilege.”
Congressman John Moss subsequently declared that President Eisenhower
was not discharging his duties under the Constitution. Under Article
II, Section 3 of the Constitution, the President is obliged to “take
care that the laws be faithfully executed....” In this instance,
President Eisenhower was not only disregarding the Budgeting and
Accounting Act but also supporting those acting “contrary to the
law,” Moss said.
Although the fuss had started over GAO access to a sixty-two-page Air
Force inspector general report on the ballistic missile program (see
Appendix C), the real issue was whether the Air Force, the Army, the
Navy, or any other executive agency could arbitrarily refuse to give
reports, papers, and financial records to the GAO.
It was difficult to follow President Eisenhower’s thinking. This
was a period of time when President Eisenhower and members of his
administration were emphasizing that financial problems could be
one of the nation’s big worries. One of the major problems, they
believed, was making sure the government was getting its money’s
worth from military spending.
Even in times past, when GAO investigators were given maximum access
to records, serious scandals had been unearthed. Most of them were
not discovered by the military establishment but came to light only
after the GAO or the congressional committees went to work. Chairman
Hebert and Campbell had a long record of fruitful hearings to back
them in questioning the wisdom (to say nothing of the legality) of
allowing our military spenders to erect more barriers for the GAO
auditors—the only independent outside check on the billions spent on
military matters.
At the presidential press conference on November 5, 1958, I raised
the question of the right of the General Accounting Office to examine
reports of the Air Force and the Defense Department.
“Mr. President,” I said, “you have mentioned the spending in the
Defense Department here as one of the important issues, and the
General Accounting Office, which is the watchdog on frauds and
extravagances in the various agencies, has been barred from reports
over in the Air Force and the Defense Department generally, and on
this they [the Air Force and Defense Department officials] claim that
they have authority from you to withhold reports if it is ‘expedient
to do so.’”
I tried to make the question conform as much as possible to the
precise trouble area between the GAO and the Defense Department.
“I wonder,” I continued, “if you have given that authority [to
withhold] and if you feel that the GAO should have a full rein to go
in and investigate all indications of fraud and extravagance?”
Replied the President: “You are obviously talking about some special
thing that I would have to study before I could make—give an answer.
I have stated this time and time again: I believe that every
investigating committee of the Congress, every auditing office, like
the GAO, should always have the opportunity to see official records
if the security of our country is not involved.”
President Eisenhower was now saying that the GAO should have all
records unless the security of our country was involved. I tried to
pin him down on it.
“Will they claim this, Mr. President, under ‘executive privilege—’” I
started my question.
President Eisenhower cut in before I had finished to avoid any
further comment. “No, that’s all I have to say—I told you that is all
I had to say for the moment.”
Representative Clare Hoffman, the wily Michigan Republican, noted
that President Eisenhower’s answer seemed to bar use of “executive
privilege” in refusing reports to the GAO. A few days after the press
conference, he wrote President Eisenhower to call attention to the
press conference exchange and to ask:
“Did you mean to imply by your comments that the complete text
of Inspector General reports, including recommendations, be made
available to Congress and the General Accounting Office?”
President Eisenhower’s letter to Representative Hoffman on the
same day again barred the GAO from the full reports of inspectors
general. The President said that “facts” in the reports would be made
available to the GAO, but that “recommendations and other advisory
matter” were not to be released (see Appendix C).
The whole situation landed right back where it had started. The Air
Force, Navy, or Army officials would still screen the Inspector
General reports, eliminate material they didn’t want to fall into the
hands of GAO auditors, and pass out their own self-serving summary
to the investigators. Law and logic had fallen by the wayside. The
Budgeting and Accounting Act might as well not have been written
for all the good it was doing in forcing departments to produce all
pertinent documents.
The next big test came with the Navy. In February 1959, Comptroller
General Campbell wrote to the Moss subcommittee stating that
the secrecy curtain made it impossible for him to fulfill his
responsibility to audit Navy financial affairs.
“We consider it illogical, impractical and contrary to express
provisions of the law for public officials to withhold, in their
discretion, information concerning the discharge of their public
trust,” Campbell wrote.
“We are advising the Secretary of Defense and the Secretary of
the Navy that we are unable to properly discharge our statutory
responsibility if information needed in our work is denied to our
representatives in the performance of our audits.”
Representative William L. Dawson, chairman of the parent House
Government Operation Committee, instructed Moss to prepare for public
hearings. He wrote Campbell:
“I am sure everything possible will be done to overcome the repeated
arrogance of Federal executive officials whose denial of information
to the General Accounting Office flouts the clear law of the land.”
Comptroller General Campbell said that the “executive privilege”
claim was being made by the Secretary of the Navy on grounds that “he
believes full disclosure of rank opinions, advice and recommendations
from persons at lower levels ... would not be in the public interest.
“This same reasoning is now being applied by the various bureaus and
offices in the day-to-day work of their employees.
“We believe that sound management practices require that
observations, opinions, and recommendations by subordinates and any
other matters considered in making a decision should be a matter of
record.
“All of these are matters upon which judgments are founded and
subsequent decision and actions are based. Such documentation serves
as a protection to the individual making the decisions or taking the
action as well as furnishing a sound basis for subsequent appraisal
of their timeliness, effectiveness and honesty.”
Campbell complained that under Navy procedure at that time “the
individuals having custody of the materials are required to screen
the material and remove from the official files any data they or
their superiors feel we should not have.
“These actions provide a means by which the Department could conceal
substantive evidence of waste, extravagance, improvident management,
poor procurement practices, or other adverse conditions.”
By March of 1959, Campbell had full proof that he could not rely
on the summary reports submitted to him by the Navy. He declared
that the Navy had submitted two reports on one subject that were
“incorrect representations” of the government’s action. “The second
version of the report, while containing twice as many pages, is
also incomplete and inadequate because of the use of self-exercised
censorship.”
Campbell said that the secrecy was not only illegal and bad
government but that it was mighty expensive. He explained that the
secrecy deprived the GAO auditors of information already accumulated
at the taxpayers’ expense. This meant that the GAO was forced to go
out and duplicate work already done if it was to make any effort to
fulfill its responsibility.
Comptroller General Campbell put no price tag on the extra cost for
a GAO audit of the Navy. However, the GAO did estimate that lack of
access to the Air Force Inspector General reports made that audit
cost at least $125,000 more than necessary. Though the cost of the
audit could have been avoided with the proper co-operation of the Air
Force, the audit ultimately disclosed millions of dollars in bungling
and waste in the Air Force missile program—all covered up in the
name of “executive privilege.”
The Richmond _Times-Dispatch_ commented:
“The amazing thing about this situation is that President Eisenhower
backs the armed services in withholding vital information from
the GAO. He has been told by his legal advisers that ‘executive
privilege’ has some validity, where it is in essence nothing but the
determination of bureaucrats to keep the GAO from seeing their books.
“This bogus doctrine forced the GAO to spend an extra $125,000 in
making its inquiry into Air Force mismanagement.... Just how much
longer is the public going to put up with this sort of thing?”
I knew that Virginius Dabney, editor of the Richmond
_Times-Dispatch_, was fed up with this expensive and undemocratic
secrecy. So was J. Russell Wiggins, executive editor of the
Washington _Post and Times Herald_; James Pope, executive editor of
the Louisville _Courier-Journal_; Herbert Brucker, editor of the
Hartford _Courant_; V. M. (Red) Newton, managing editor of the Tampa
_Tribune_; and Harold Cross, the special counsel for the American
Society of Newspaper Editors.
The Chicago _Daily News_, the St. Louis _Post-Dispatch_, and _The
Wall Street Journal_ were among the other top papers firmly opposed
to the secrecy cover-up. But despite several excellent editorials,
the problem just wasn’t flamboyant enough to catch the attention
of the public or even most reporters. Too many news stories and
editorials in other papers merely repeated the self-serving
justifications of the Eisenhower administration without determining
whether the assertions were true.
CHAPTER XIV
Hiding the Laos Mess
By the summer of 1959, Representative Porter Hardy was fed up with
arbitrary executive secrecy. The lanky Virginia Democrat was getting
a double dose of “executive privilege” and had nearly reached the end
of his patience. He was a member of the Armed Services subcommittee
headed by Chairman Edward Hebert, and therefore had firsthand
knowledge of how the Defense Department was hampering investigations
of military waste.
Representative Hardy was also chairman of his own Foreign Operations
and Monetary Affairs Subcommittee. This subcommittee (of the House
Government Operations Committee) was responsible for investigating
the handling of more than 60 billion dollars in foreign aid by the
State Department and the International Cooperation Administration
(ICA).
The Hardy subcommittee had a small staff of a half dozen headed by
John T. Reddan, the chief counsel. Under the best circumstances,
Hardy knew that they would be able to look into only a few reports
of mismanagement or fraud. But a little scrutiny should soon tell
whether the internal investigations of ICA were being conducted in
such a manner that the Congress could rely on ICA to police itself.
To find out how well ICA was performing, it was necessary to examine
the files of complaints of fraud or mismanagement and to determine
how these complaints were being followed up by ICA investigators.
But the ICA barred Hardy’s committee staff members from examining the
investigation files as well as the evaluation reports ICA was making
on its own operations. Such files, Chairman Hardy was told, would
contain “advice, recommendations and conclusions,” and, according to
President Eisenhower’s May 17, 1954, letter, therefore, could not be
released.
The investigation proceeded nonetheless. It was slow work, but with
patience and persistence Chief Counsel Reddan, Counsel Richard
Bray, Jr., Counsel Miles Q. Romney, and Investigator Walton Woods
pieced together the information ICA had denied them. They got it by
interviewing former government employees, examining the files of
business firms with government contracts, and taking trips to other
lands to personally examine foreign-aid spending.
The little country of Laos in southeast Asia was one of the first
on which they concentrated. The picture was not pretty. The
administration of U.S. aid was creating at least as many problems as
it was trying to solve.
The aid program in Laos started in January 1955, when that nation
was granted its full independence. Laos had been a part of French
Indochina with Cambodia and Vietnam. Independence for Laos had meant
that the United States took over the support of its entire military
budget—41 million dollars in 1955, 47 million dollars in 1956, 43
million dollars in 1957, and 30 million dollars in 1958. Most of it
went to support a 25,000-man army. The subcommittee later concluded
that this military aid plus about 1.5 million dollars annually in
economic assistance added up to the fact that the United States was
“virtually supporting the entire economy.”
As early as June 1957, the subcommittee received reports indicating
the foreign-aid program in Laos was being damaged by waste,
inefficiency, and poor judgment. After preliminary inquiries, the
formal investigation was started on April 10, 1958.
The requests for ICA files on Laos foreign-aid spending were rejected
by ICA Director James W. Riddleberger. The ICA also barred Chairman
Hardy from files on India, Bolivia, Brazil, and Guatemala.
A few months later, the ICA refused to let the GAO auditors see the
files on Laos.
Chairman Hardy was irked with the frustration, but downright furious
at what he considered to be a disregard of the law. Certainly the
ICA reports on Laos should be made available to the GAO, for the
Budgeting and Accounting Act of 1921 provided explicitly that all
records of all departments must be made available to the GAO auditors.
Furthermore, when the foreign-aid program had been established in
1948, the debates had included discussion of the accounting on
foreign aid and the necessity for availability of information to
Congress.
At that time Senator Arthur Vandenberg, the Michigan Republican,
commented:
“There are several points in the bill where it is provided that
Congress is to be advised. In addition, we are creating ... the
‘watchdog’ committee [Joint Committee on Economic Cooperation] ...
which will be entitled to all information of every character at all
times.”
Despite the law and the intention of the lawmakers, the ICA had
clamped the secrecy lid on, and kept it on. ICA also rejected GAO
requests for information on foreign-aid spending in Formosa, India,
Vietnam, Pakistan, France, Turkey, and others.
In its investigation of but one of the foreign-aid programs—the
one in Laos—the Hardy subcommittee unearthed enough evidence of
incompetence, laxity, mismanagement, and fraud to fill scores of
pages of an official report.
The military program for a 25,000-man Laotian army, for example,
arose from a political decision made by the State Department and
contrary to the recommendations of the Joint Chiefs of Staff and the
Defense Department. “Significant military opinion has suggested a
force of 12,000 to 15,000,” the Hardy subcommittee reported.
The subcommittee also found favoritism, conflict of interest,
and bribery in connection with ICA contracts in Laos. “Edward T.
McNamara, [ICA] public works and industry officer, accepted bribes
totaling at least $13,000 from Willis H. Bird and Gerald A. Peabody
of the Universal Construction Co., in return for helping them
secure lucrative contracts and overlooking deficiencies in their
performance.”
The subcommittee reported dozens of incidents of minor officials’
showing favoritism toward firms that later employed them. One sharp
charge was aimed at the man who headed the United States Operations
Mission (USOM) during part of this period.
“Carter dePaul, former USOM director, sold his 1947 Cadillac upon
his departure from Laos to Gerald A. Peabody, head of Universal, at
an inflated price [about $3000]. Uncontroverted evidence indicates
the vehicle was at that time inoperable, and that shortly thereafter
it was cut up and the pieces dropped down an abandoned well. In the
interim, it had stood rusting in front of Universal’s main office,
where it was the subject of scornful amusement by Laotians and
Americans alike.”
More shocking than the frauds was the evidence dug up by the
subcommittee showing that U. S. Embassy officials in Laos and high
ICA officials in Washington took no effective remedial action after
receiving reports of corruption and mismanagement. Greater energy was
obviously being expended in hiding the mess from Chairman Hardy and
his investigators.
The subcommittee’s evidence indicated that an investigator for the
ICA Auditor Haynes Miller, “was ‘railroaded’ out of Laos because
he was close to discovering the truth about Universal, its bribes,
its virtual monopoly of U.S. aid construction projects ... and its
woefully inadequate performance.”
This action to remove Auditor Miller seemed more reprehensible to
me than any ordinary theft or misuse of money or government power.
This was evidence that there was a brutal conspiracy within the U.
S. Embassy in Laos to eliminate those officials who were complaining
of fraud and mismanagement and to shield persons who were engaged
in wrongdoing. It demonstrated what could happen when government
officials feel they have an “executive privilege” to hide the records
on their activities.
Miller’s reports and his persistent efforts to get something done
about deficiencies in the program only resulted in his removal. He
was “unable to adjust” to Laos, some of his superiors and associates
said. U. S. Ambassador J. Graham Parsons sent a telegram to
Washington stating he had invited the investigator to resign “because
of obvious signs of nervous disorder.”
“Ambassador Parsons’ opinion of Miller’s ‘nervous disorder’ was
rendered without benefit of medical advice,” the Hardy subcommittee
reported. “This is contrary to Department of State regulations.
Competent medical advice was available to the Ambassador and could
have been solicited.”
“One month later, on October 30, 1957,” the report added, “Miller was
subjected to a full medical examination in Washington and certified
as ‘qualified for general duty.’”
Officials of the ICA excused the deficiencies and maladministration
in the Laos program with the claim that the aid program, no matter
how poorly administered, had saved Laos from Communism.
“This assertion is purely speculative, and can be neither proved nor
disproved,” the Hardy subcommittee stated in 1959. That was two years
before it was generally realized that a corrupt aid program had
probably helped the Communists in Laos.
Even in 1959 the Hardy subcommittee concluded “that a lesser sum
of money more efficiently administered would have been far more
effective in achieving economic and political stability in Laos, and
in increasing its capacity to reject Communist military aggression or
political subversion.”
At a press conference on July 2, 1959, two weeks after the Laos
report was issued, William McGaffin, of the Chicago _Daily News_, put
the problem of secrecy in ICA to President Eisenhower.
“Mr. President,” McGaffin started, “do you see any solution to the
quarrel between Congress and the executive branch of the Government
over the question of freedom of information?”
“Well, I don’t know exactly what you are adverting to when you say
freedom of information,” President Eisenhower said and then jumped
for the safety of George Washington’s shadow:
“This question, from the time of Washington, has been a live one.
When the Executive determines that something is to the—will damage
the security of the United States or its vital interest, then it
withholds information that possibly could be put out. But I don’t
know of any specific thing which you are talking about at this
moment.”
McGaffin bounced back:
“Mr. President, if I could just spell it out briefly: Congress seems
perturbed over various instances where they feel that the executive
branch has misused the claim of ‘executive privileges’ and denied
them information which they should have.
“For instance,” McGaffin continued: “There are evaluation reports
made by the ICA on certain countries which have received mutual
security—Formosa, Laos, Brazil, Guatemala—a whole string of them, and
Congress has raised the point where they are going to try to pass a
law which would compel ICA to turn that information over to them.”
President Eisenhower confused the problem with national security in
answering:
“Well, there are certain things, particularly in the security field,
that, if you reveal, are very obviously damaging to the United States
and I think anyone of good sense will see that. And you simply must
take measures to see that those things are not revealed.
“And, now, this has been—there is nothing new about this. The
Executive, and there seems to be a sort of congenital built-in mutual
opposition that I don’t know why it occurs, I don’t particularly feel
it personally, but I know it’s there and at times it comes to my
attention in one form or another.
“But,” said the President, retreating to the safety of his reputation
as an honest man, “I am using my own conscience on the matter and
when such things as these come to me for decision, I shall continue
to do so.”
It was a most unsatisfactory answer on a most important question
involving the policing of spending by the Defense Department and the
ICA. I decided to follow up where the Hardy subcommittee and Bill
McGaffin left off. At the next press conference, on July 15, 1959, I
caught President Eisenhower’s eye.
“Mr. President,” I started. “Several committees of Congress have
charged that departments of your administration have used the
secrecy of the so-called ‘executive privilege’ to hide imprudence,
mismanagement, fraud, and in some cases material which has later
resulted in indictments. I wonder if you have taken any steps to
correct this?”
President Eisenhower’s eyes blazed with anger. Despite his emotion he
remained controlled enough to avoid the kind of comments on facts or
law that had put him in so much trouble in the past. He said:
“I think you had better put that question in written form and let me
take a look at it because you start off, right off the bat, with the
premise or implication that someone is guilty of fraud and I don’t
believe it.”
When I attempted to reply that the charges of fraud and mismanagement
were included in official reports of Congress, he cut me off sharply.
“I will see your letter if you would like to submit it.”
In the letter to President Eisenhower, I tried to be careful and to
be respectful of his position:
My dear Mr. President: In response to your request, I am submitting
the basic question which I asked at the July 15, 1959, press
conference. I regret that the statement of the question at the
press conference raised any implication of fraud, or knowledge
of fraud, at the White House level. Such an implication was not
intended. The question was based on the findings of various
committees of the Congress. In general the reports dealt with
subordinate officials who, it is contended, used the so-called
executive privilege in an effort to conceal their activities from
investigators of Congress and the General Accounting Office.
Several committees of Congress have made reports charging that
officials in some departments of Government have used the
secrecy of executive privilege to hide what the committees
called carelessness, mismanagement, fraud, and other alleged
improprieties. Comptroller General Joseph Campbell has told the
Congress that some executive departments have violated the law—the
Budgeting and Accounting Act—in withholding reports from him
in connection with waste, mismanagement and improprieties. Mr.
Campbell has testified before the House Appropriations Committee
that this secrecy is a violation of the law, and he also stated
that it “could be almost fatal” to vital auditing functions his
office performs.
Comptroller General Campbell and the Moss subcommittee, among
others, have raised the question as to whether this withholding of
information is inconsistent with the Constitutional requirements
that the Chief Executive “take care that the laws be faithfully
executed.”
There is no problem of national security involved. The Air Force
and Navy have informed Congress and the GAO that no national
security is involved, since the GAO auditors have the same
clearance to examine classified material as do the officials in the
departments.
Against this background, I would rephrase my question as follows:
In the light of the provisions of the Budgeting and Accounting Act,
do you feel you have an executive responsibility to carry out the
law in line with the Comptroller General’s views?
The answer, from Gerald D. Morgan, Deputy Assistant to the President,
reached me a few days later on July 21. Morgan merely quoted from the
President’s letter to Representative Hoffman of some months before,
and from other earlier statements of his on “executive privilege.”
Morgan wrote, “The President’s position has not changed.” I was not
convinced that President Eisenhower knew what his position was. The
letter left all basic questions unanswered.
The foreign-aid bill, amending the Mutual Security Act of 1954,
was now before the Congress, and Representative Hardy had tacked
on an amendment specifically stating that “all documents, papers,
communications, audits, reviews, findings, recommendation reports and
other material which relate to the operation or activities of the
International Cooperation Administration shall be furnished to the
General Accounting Office” and authorized committees of Congress.
On July 24, 1959, President Eisenhower signed the bill with Hardy’s
amendment, including three provisions for disclosure of information
to the Congress or the GAO. In signing it, however, the President
served notice he would not abide by the disclosure sections:
“I have signed this bill on the express premise that the three
amendments relating to disclosure are not intended to alter and
cannot alter the recognized constitutional duty and power of the
executive with respect to the disclosure of information, documents,
and other materials. Indeed, any other construction of these
amendments would raise grave constitutional question under the
historic separation of powers doctrine.”
Five days later at the July 29, 1959, press conference I asked the
President if he considered the provisions in the bill to cut off
funds to balky agencies to be “a criticism of the administration’s
secrecy policies.”
President Eisenhower turned red in the face at the reference
to “secrecy” in his administration. “You start your question
with an implied fact that is not a fact,” he said. “You say
the administration’s secrecy policies. There has been no
administration....”
I tried to amplify my question, but was cut off.
“Please sit down,” the President said sharply. I sat on orders from
the Commander in Chief, and he continued:
“There has been no administration since my memory, and I have been
in this city since 1926, who has gone to such lengths to make
information available as long as the national security and the
national interest of this country is not involved.”
It was fruitless for me to try to stand up and tell him what was
happening in his administration. So I sat still and took it. The
support that came later from editors over the country was most
gratifying.
V. M. (Red) Newton, Jr., managing editor of the Tampa _Tribune_,
wrote to President Eisenhower:
“Mr. Mollenhoff’s question at the press conference about your
administration’s ‘secrecy policies’ had to do with the House of
Representatives provisions in the foreign aid bill that would force
the bureaucracy to give information of this foreign aid to the
Congress.
“Both the Congress, which votes the expenditure, and the American
people, who pay the tax funds, are entitled to full information.”
The Richmond _Times-Dispatch_ in an editorial entitled “Does
Eisenhower Understand?” commented: “Somebody is going to have to
explain to President Eisenhower that the ‘executive privilege’ dogma,
which originated in his first term five years ago, is being perverted
into a device for ‘covering up’ and denying the public the facts
concerning the government.”
The editorial commented on the “corruption, profiteering and
mismanagement in Laos” in the ICA, and the fact that the Teapot Dome
scandals would never have been uncovered if such a principle as
“executive privilege” had been invoked.
“So it would be advisable for Mr. Eisenhower to look into this
‘executive privilege’ thing much more carefully than he has done so
far. He will find that it carries within itself the seeds of scandal,
and offers needless temptation to department heads. It should be
abolished.”
_The Wall Street Journal_ editorialized on the “Misplaced Anger” of
President Eisenhower. It gave President Eisenhower full credit as
a “man who believes that public office is a public trust.” But the
_Journal_ in its usual fair but solid way called attention to the
entire problem of the GAO’s obtaining access to government records so
it could fulfill its responsibility.
“If he [the President] were to inquire into the extent of secrecy,”
said _The Wall Street Journal_, “we have an idea the President would
be far more angered at some of his own bureaucrats than at the
reporter who brought the secrecy to his attention.”
The Hartford _Courant_, edited by Herbert Brucker, carried an
equally fine editorial. Brucker was chairman of the Freedom of
Information Committee of the American Society of Newspaper Editors,
and was one of a handful of the editors who knew the subject
thoroughly.
By this time editors of a couple dozen newspapers had done
considerable study on the problem of “executive privilege.” Although
cognizant of the many problems weighing on President Eisenhower, they
felt the time had come for him to make himself aware of the insidious
secrecy that was creeping into the federal government under his
prestige.
It was a week after this press conference that James W. Riddleberger,
Director of the ICA, refused to make evaluation reports available to
Congress on the foreign-aid program in Laos and Vietnam.
Now Chairman Hardy saw that a disclosure amendment to the
Mutual Security law would not be enough to force the Eisenhower
administration to produce records for the GAO and the Congress.
The 3.1-billion-dollar foreign-aid appropriations bill was still
pending in Congress, and Hardy decided to try to use an amendment to
this purse-string measure to force the Eisenhower administration to
produce records.
The House was unanimous in adopting the Hardy amendment to the
appropriations bill. This amendment provided that the Comptroller
General could shut off aid funds to any program if records were
refused to Congress and GAO investigators.
The Eisenhower administration was gravely concerned over this
amendment. Riddleberger voiced the opposition, and the Senate
weakened in the face of administration pressure. The Senate version
of the appropriations bill carried the provision that the President
could authorize withholding by a simple certification “that he has
forbidden its being furnished ... and his reason for so doing.” In
a late night session the Senate-House conference committee accepted
the huge loophole in the Senate version of the appropriations bill.
Representative Hardy recognized it immediately as a loophole that
could destroy the effectiveness of his amendment. A simple note from
the President would override any request by Congress or the GAO.
Would President Eisenhower read the documents necessary to determine
for himself whether a certification for withholding was justified? It
seemed more likely to his critics that he would sign certifications
continuing to bar the GAO and Congress from a thorough examination
of the internal workings of the foreign-aid program. Chairman
Hardy’s fears were justified. It wasn’t long before his requests
for information were being met with “certification” from President
Eisenhower giving only the most general reasons.
The Congress could have done more than it did. It unquestionably had
the necessary power, reaffirmed by the Supreme Court as recently as
1957 in the Watkins case. The Court said:
“The power of Congress to conduct investigations is inherent in the
legislative process. That power is broad. It encompasses inquiries
concerning the administration of existing laws as well as proposed
or possibly needed statutes. It includes surveys of defects in our
social, economic, or political system for the purpose of enabling the
Congress to remedy them. It comprehends probes into departments of
the Federal Government to expose corruption, inefficiency and waste.”
I was unsuccessful in my efforts to get Speaker Sam Rayburn or
Majority Leader Lyndon B. Johnson interested in taking any effective
measures to reaffirm the right of Congress to compel production of
records for GAO.
Congress did deliver the Eisenhower administration one blow in 1959
in connection with the “executive privilege” issue. That was when
President Eisenhower nominated Admiral Lewis Strauss to be Secretary
of Commerce. The hearings before the Interstate and Foreign Commerce
Committee started on March 17, and pulled out past the middle of May.
Although a good many personality clashes were involved, the role that
Strauss had played in the Dixon-Yates contract and his advocacy of
extreme “executive privilege” also figured.
The report favoring the Strauss confirmation stated: “Our committee
spent much time in detail examination of specific instances in which
it is charged that the nominee withheld or was grudging in giving
information to congressional committees. The few instances charged
represent a minute percentage of the nominee’s dealings with the
Congress.
“In fact, the nominee showed great diligence in keeping the Congress
informed,” concluded the six Republicans and two Democrats who signed
the majority report.
When questioned about the Dixon-Yates contract, Strauss had said: “I
thought it was a good contract and I still do ... it would have cost
the people a great deal less than the plant ... is now going to cost.”
Strauss denied that he had used “executive privilege” to hold out
information from Congress in the Dixon-Yates controversy.
“No information was withheld by me,” he said. “No question failed of
answer except one which was several times repeated and to which I
respectfully declined response on ground that to demand conversations
had with the President or members of his personal staff would be in
violation of the constitutional doctrine of separation of powers ...
I testified that the contract with Mississippi Valley Generating
Company had been entered into at the direction of the President and
had been terminated at the direction of the President, and that, I
submit, should have been sufficient.”
Strauss claimed a total right under “executive privilege” to refuse
records to Congress, and the seven-member Democratic minority
concluded:
“The record ... indicates such withholding is without basis in law,
and that the nominee had no concern for the law in this respect.
From the record it is clear that the nominee time after time has
resisted furnishing the appropriate committees of the Congress with
information needed in order for Congress to properly perform its
legislative functions.
“It appears to us from careful attention to the testimony, that Mr.
Strauss had withheld or manipulated information to serve policy or
personal ends. On the basis of the record, we have grave doubts as to
whether or not information furnished by Mr. Strauss, as Secretary of
Commerce, would be accurate or complete.”
The minority position was to prevail on the Senate floor where the
Strauss nomination was defeated.
Senator Mike Monroney, the Oklahoma Democrat, explained his
opposition to the Strauss nomination thus:
“Both the people and the press are entitled to expect from the
legislative branch of Government the vigilant protection of the
people’s right to know. For the Senate to seek to give protection in
the exercise of its power of confirmation is not only proper, it is
obligatory.
“I conceive it to be basic to democratic government that the people
and their elected representatives in the Congress, are entitled
to receive from the officials of the executive branch, not merely
literal truth, but full information, freely given without design to
soothe, to confuse or divert.”
When the Strauss nomination was defeated in mid-June, I had hopes
that the Congress was on the way to recognizing the problem of
“executive privilege” for all that it was. But by the end of the year
it was apparent that most of the members of Congress had gone back to
their little personal problems and had left Moss, Hennings, Hardy,
and a few others to wrestle with the big problem of how to obtain an
adequate GAO audit of spending that involved more than half the total
national budget.
CHAPTER XV
Defiance to the End, Above the Law
From the investigation of the aid program in Laos, Representative
Porter Hardy and his subcommittee staff moved on to the aid programs
in Latin America. The subcommittee had examined some Latin-American
aid programs as early as 1955 and unearthed several deficiencies. But
the Eisenhower administration had claimed that the shortcomings were
due largely to the newness of the programs and suggested that the
subcommittee examine them again five years later.
The five years had now elapsed, and on April 28, 1960, Chairman
Hardy notified Secretary of State Christian Herter and ICA Director
Riddleberger that he was initiating an investigation of the aid
programs to Brazil, Uruguay, Argentina, Chile, Bolivia, Peru, and
Colombia.
Several new laws were on the books to facilitate the investigation.
The 1959 law establishing the office of Inspector General and
Comptroller (OIGC) in the State Department provided that:
“All documents, papers, communications, audits, reviews, findings,
recommendations, reports, and other material which relate to the
operation or activities of the Office of Inspector General and
Comptroller shall be furnished the General Accounting Office and to
any committee of the Congress, or any duly authorized subcommittee
thereof.”
The Congress in 1960 amended the Mutual Security Act providing the
GAO could shut off funds to the OIGC if that agency did not furnish
records requested in a reasonable time.
Chairman Hardy’s staff had also called his attention to another
law (5 U.S.C. 105 [a]) which provided that every department shall,
upon request of the Government Operations Committee, “furnish any
information requested of it relating to any matters within the
jurisdiction of said committee.”
Added to these laws, and the previously mentioned Budgeting and
Accounting Act of 1921, was the fact that the State Department was
preparing to ask Congress for more money for aid to Latin America.
The stage was legally and psychologically well set for co-operation.
And Chairman Hardy was indeed advised that he would receive full
co-operation. It never came. When his first requests for files on the
Bolivia program produced no results in six weeks, Hardy notified the
State Department and ICA that hearings would begin on the information
policy on June 28, 1960.
The hearings revealed that the State Department had constructed an
involved thirteen-step routine for clearing papers for Congress,
and the papers Hardy requested simply had not been cleared. Eric H.
Hager, legal adviser of the Department of State, identified himself
as the man responsible for the new system.
It was found that in one instance it took six weeks for one
subcommittee request to clear eight of the thirteen steps. When
Chairman Hardy tried to find out what had happened to the request for
documents, he learned that the request and the documents were resting
in the “in box” in the Office of the Assistant Secretary of State
for Congressional Relations. The papers had been gathering dust in
the box for two weeks and were only moved when the State Department
started to prepare for the hearing.
In the report on the hearings, Hardy’s subcommittee explained the
need for original documents as “the best evidence available” on the
internal operations of ICA.
“It has been the policy and practice of the subcommittee, in order to
insure accurate reporting of these complex operations, to support its
findings with documentary corroboration from files of the executive
agencies,” the report stated.
“The subcommittee has sought to obtain the facts from the documents
and records ... as they are prepared in the ordinary course of doing
business, rather than to rely upon oral testimony or upon secondary
documents prepared especially for the subcommittee’s consideration.”
The report scored “executive privilege” as a “nebulous doctrine”
that had plagued the subcommittee with delays. Again it was pointed
out that the withholding of information was in violation of clear
laws imposing a duty to make records available to Congress. The
report stated that the subcommittee had sought to be reasonable in
its request, and “on several occasions [has] withdrawn its requests
for particular documents at the suggestion of the executive branch.
Examples of documents in this category are certain memoranda
recording high-level discussions between Department of State
officials and senior officials of foreign governments.”
The report stated it should be understood that this willingness to
refrain from pressing for certain documents was not a recognition of
any right to withhold them. It continued:
“No court decision has settled the question of whether executive
officials may refuse to honor a request of a congressional committee
for papers, documents and records. Many court decisions, however,
have upheld the power of congressional committees to obtain records
and papers in the possession of private individuals, corporations,
and associations even though such records might be regarded as of
a highly personal nature. It logically follows that the power of
Congress to obtain information regarding the public business, the
exercise of authority granted by Congress, or the expenditure of
funds appropriated by Congress would likewise be upheld in the event
of a court test.
“If Congress is to discharge its constitutional legislative and
policymaking functions, it must have reliable information about the
public business.”
To allow the executive branch to pick and choose what the Congress
would be allowed to examine “can, and frequently does, result in
giving Congress a distorted picture,” the report said.
Then it suggested the use of two existing powers of Congress to
oppose this abuse of power by the executive: the power of subpoena,
and the power of the purse.
“The power of subpoena, however, should be used only as a last
resort. Utilizing the power of the purse, the Congress can and
should provide, in authorizing and appropriating legislation, that
the continued availability of appropriated funds is contingent upon
the furnishing of complete and accurate information relating to the
expenditure of such funds to the General Accounting Office and to the
appropriate committees of Congress at their request.”
A week after the report was issued, Chairman Hardy sent a letter to
the ICA, State Department, and the Development Loan Fund asking for
all documents on programs for seven Latin-American countries. His
staff had already obtained considerable information from sources
outside ICA indicating mismanagement, conflicts of interest, and
other corruption in the program in Peru.
A month later, on October 11, 1960, President Eisenhower issued a
formal order denying access to the records Hardy had requested.
Three weeks later, on October 31, 1960, Chairman Hardy made a formal
request for specific ICA documents from the Office of Inspector
General and Comptroller. This set the groundwork for shutting off
funds to the Office of Inspector General and Comptroller under the
provisions of the 1960 Amendment to the Mutual Security Act cited
earlier in this chapter.
President Eisenhower followed up a month later, on December 2, with a
certification denying access to these OIGC documents and eighty other
documents requested.
Here was the showdown to determine how far President Eisenhower would
go in overriding the express provisions of the 1959 law establishing
the Office of Inspector General and Comptroller. Chairman Hardy
notified the GAO of the OIGC refusal to produce records. And
Comptroller General Joseph Campbell, as head of GAO, filed notice
that unless the documents were made available the funds for OIGC
would be shut off on December 9.
By so doing, Campbell ruled that the refusal to produce the documents
on foreign aid to Latin-American countries was a violation of the
law even if the orders were issued by his one-time close associate,
President Eisenhower.
On December 9, Gerald Morgan, Deputy Assistant to the President,
requested a ruling from Attorney General William P. Rogers, and
thirteen days later Rogers wrote President Eisenhower (see Appendix
C). The Attorney General, as would be expected from his earlier
espousal of the most extreme interpretation of “executive privilege,”
declared Comptroller General Campbell’s ruling “erroneous.” In
his opinion, the President had a constitutional right to withhold
whatever he wanted to withhold. Rogers advised President Eisenhower
that he had the authority to direct the Secretary of the Treasury and
the Secretary of State to disregard the ruling of the Comptroller
General cutting off funds for the Office of Inspector General and
Comptroller.
With this advice in hand, President Eisenhower, on December 23,
overrode the disclosure provisions of the Mutual Security Act of
1959 and the ruling of the Comptroller General he had appointed. In
letters to Secretary of Treasury Robert B. Anderson and to Secretary
of State Christian Herter, President Eisenhower told them to use
federal funds to pay the Office of Inspector General and Comptroller.
He called attention to Campbell’s contention that such payments were
to be cut off under the law passed in 1959, and added:
“This position, I am advised by the Attorney General, is based upon
erroneous interpretation of law which would reach an unconstitutional
result and that mutual security program funds continue to be made
available for expenses of the Office of Inspector General and
Comptroller.”
“Accordingly, you are hereby directed, until the end of my term of
office on January 20, 1961, to cause disbursements to be made for
such expenses upon the receipt of certified vouchers presented for
that purpose.”
Chairman Hardy continued the investigation of Peru. But he had need
for documents that would be crucial in establishing the degree
of mismanagement and corruption in the ICA program there. The
most he could do now was to hope for better success under the new
administration. However, he did not want to present President-elect
John F. Kennedy with a problem for solution on or before the January
20 inaugural ceremonies.
He talked to Theodore Sorenson, Administrative Assistant to Senator
Kennedy and later counsel to the President, and informed him of the
pending problem. Hardy stated that he would withdraw his request
which could prevent payment of OIGC personnel if he received
assurances from the President-elect that the new administration would
review the problem immediately after the inaugural.
On December 31, 1960, Hardy received a telegram from President-elect
Kennedy asking that he postpone action on the documents until the new
administration had “an opportunity to review [the] situation.” Hardy
complied.
The night of January 18, 1961, President Eisenhower went before a
nationwide audience to give his “farewell address.” He appealed
for an “alert and knowledgeable citizenry” to combat the
military-industrial complex that could “endanger our liberties or
democratic processes.”
“This conjunction of an immense military establishment and a
large arms industry is new in the American experience,” President
Eisenhower said. “The total influence—economic, political, even
spiritual—is felt in every city, every statehouse, every office of
the Government.
“We recognize the imperative need for this development. Yet we must
not fail to comprehend its grave implications. Our toil, resources,
and livelihood are all involved: so is the very structure of our
society.
“In the council of Government, we must guard against the acquisition
of unwarranted influence, whether sought or unsought, by the
military-industrial complex. The potential for the disastrous rise of
misplaced power exists and will persist.”
[Congressman Edward Hebert, of Louisiana, had made a good many
comments on the military-industrial complex, and he had conducted a
fine investigation documenting some of the problems. But the record
indicated Chairman Hebert had not received full co-operation from the
Eisenhower administration. Now President Eisenhower was expressing as
much concern as Hebert.]
“We must never let the weight of this combination endanger our
liberties or democratic processes,” President Eisenhower warned. “We
should take nothing for granted. Only an alert and knowledgeable
citizenry can compel the proper meshing of the huge industrial and
military machinery of defense with our peaceful methods and goals, so
that security and liberty may prosper together.
“Partly because of the huge costs involved, a Government contract
becomes virtually a substitute for intellectual curiosity. For every
old blackboard there are now hundreds of new electronic computers.
“The prospect of domination of the Nation’s scholars by Federal
employment, project allocations, and the power of money is very
present—and is gravely to be regarded.”
President Eisenhower might have added that the arbitrary withholding
of information from Congress and the public was the quickest way to
give this military-industrial combination the control he believed
to be so dangerous. He apparently had never understood the secrecy
problem in his administration in such a way that he could see the
connection between the increase in secrecy and the decrease in
liberty and other essential elements of democracy. Chairman Hardy, I
myself, and others hoped the new President would.
CHAPTER XVI
Kennedy Makes a Wobbly Start
President John F. Kennedy had been in office only ten days when
he gave his “State of the Union” address on January 30, 1961. His
comments on making information available to Congress were general in
nature and seemingly consistent with his campaign pledges. President
Kennedy said:
“Our Constitution wisely assigns both joint and separate roles to
each branch of the Government; and a President and a Congress who
hold each other in mutual respect will neither permit nor attempt any
trespass. For my part, I shall withhold from neither the Congress nor
the people any fact or report, past, present, or future, which is
necessary for an informed judgment of our conduct or hazards. I shall
neither shift the burden of executive decisions to the Congress, nor
avoid responsibility for the outcome of those decisions.”
President Kennedy was not so specific on the subject as Candidate
Kennedy had been, nor was he as precise as the Democratic platform on
“Freedom of Information.” The Democratic platform said:
“We reject the Republican contention that the workings of government
are the special private preserve of the Executive. The massive wall
of secrecy erected between the Executive branch and the Congress as
well as the citizen must be torn down. Information must flow freely,
save in those areas in which the national security is involved.”
During the 1960 campaign, President Kennedy made a most forthright
declaration on the responsibility of the President to keep the
citizens fully informed so that democracy would flourish.
“An informed citizenry is the basis of representative government,”
he said. “Democracy—as we know it—cannot exist unless the American
people are equipped with the information which is necessary if they
are to make the informed political choices on which the proper
functioning of the democracy depends. An informed people—able to
examine, and when necessary, to criticize, its government—is the only
guarantee of responsible democracy.”
As a candidate, Kennedy also declared that the President had much
more than a negative duty.
“The President—who himself bears much of the responsibility for the
preservation of American democracy—has the affirmative duty to see
that the American people are kept fully informed. It is true that
in today’s world of peril some Government information must be kept
secret—information whose publication would endanger the security of
national security—the people of the United States are entitled to the
fullest possible information about their Government—and the President
must see that they receive it.”
Senator Kennedy said that the “executive privilege” should be
reserved for the exclusive use of the President. He added that when
information is not restricted by specific statute, security needs, or
the Constitution, “there is no justification for using the doctrine
of ‘executive privilege’ to withhold that information from Congress
and the public.”
On February 4—only two weeks after Kennedy’s inauguration—Secretary
of State Dean Rusk wrote Representative Porter Hardy.
“Just a note to let you know that we have not forgotten the question
on the availability of records. I am working with our new legal
adviser, Mr. Abram Chayes, and hope that he can be in touch with you
during the coming week. Let me assure you that we will move on this
matter as promptly as possible.”
Chairman Hardy was now optimistic about gaining access to the reports
and papers of the International Cooperation Administration programs
in Peru and six other Latin-American nations. Three days later,
Chayes called at Hardy’s office, and the following day Chairman Hardy
wrote a friendly little note to Secretary of State Rusk saying that
he trusted the access problem “will be resolved quickly.”
More than two weeks passed without action, however, and with each
day Chairman Hardy became more irritated. On February 28, he wrote
Rusk prodding him again on the need for the documents on foreign-aid
programs in Brazil, Uruguay, Argentina, Chile, Bolivia, Peru, and
Colombia. The subcommittee has “directed the staff to examine
all executive branch documents and files relating to the U.S.
aid operations in the aforesaid countries and to interview such
department and agency personnel as may be necessary.”
There was still no action from Secretary of State Rusk, and ten days
later Hardy had reached the end of his patience. He wrote a letter to
President Kennedy and delivered it to the White House to President
Kennedy’s appointment secretary, Kenneth O’Donnell.
It was a Friday afternoon, and O’Donnell informed Chairman Hardy he
would put the letter in the President’s hands the first thing Monday
morning. Hardy said he felt this was important enough that it should
be delivered to President Kennedy that day, for he planned to conduct
hearings on the affair on Monday. O’Donnell said he would get the
letter to the President immediately.
Hardy’s letter informed President Kennedy of the background of
delays, and the promise of the new administration made to find a
speedy solution.
“Seven weeks have now elapsed since the inauguration and I have no
reason to believe that a workable solution is any nearer than it was
on December 9, 1960, under the former administration,” Hardy wrote.
“You may recall that it was on that date that the Comptroller General
prohibited further use of program funds for expenses of the office
of the Inspector General and Comptroller because of its failure to
furnish my subcommittee with requested documents in accordance with
... the Mutual Security Act of 1954, as amended.”
Hardy was polite but direct:
“I regret the necessity of bringing this matter to your attention,
and would be reluctant to intrude on your busy schedule if I
were not aware of the importance of this matter to you. In this
connection, I feel you should know that it is my present plan to hold
a meeting of my subcommittee on Monday of next week to discuss the
advisability of scheduling promptly a hearing to which Secretary Rusk
would be invited to inform the subcommittee concerning the extent
of co-operation which we can expect in securing the information
necessary for us to discharge our constitutional and statutory
responsibilities.
“As I am sure you are aware, I have made every effort to avoid the
necessity of seeking a solution to the problem in this manner.
However, I feel that the lack of success of other methods to date
leaves me no alternative.”
Before Hardy had reached his home, President Kennedy had called and
left a number. This wasn’t somebody calling for the President, but
the President himself. Hardy returned the call, and was assured by
President Kennedy that Secretary of State Rusk would be in touch with
him. Rusk called a few minutes later, and promised immediate action
on the information problem.
Hardy said that if he could be assured of getting some satisfactory
discussions on Monday, he would be glad to wait until that day for
official word from Rusk.
Rusk’s letter of Monday, March 13, stated:
“The Department shares with you a deep concern that the foreign aid
programs which are so important to the success of our foreign policy,
should be administered effectively and in a manner that is above
reproach.
“I have therefore directed the officers of the Department concerned
to co-operate fully with you and your staff to expedite your
investigation and to make available to you all information and
documents relevant to your inquiry which we properly can.”
Chairman Hardy took Secretary Rusk at his word and assumed that
records would be made available. The next morning Hardy called
Assistant Secretary Brooks Hays to inform him that a staff
investigator would be visiting the office of the Inspector
General and Comptroller with instructions to talk to personnel in
that office. He asked that Hays do what he could to assure that
Investigator Walton Woods receive a co-operative reception.
However, when Woods showed up at the office of Acting Inspector
General James E. Nugent and asked to speak with Investigator Michael
J. Ambrose he was refused permission. Nugent said that as far as he
was concerned the orders under the Eisenhower administration were
still in force, but that he would check with Legal Counsel Chayes
to see if there had been a change. Later Woods returned to Nugent’s
office and was informed by Nugent that no files or documents from
the Office of the Inspector General were to be made available to the
subcommittee.
Chairman Hardy was amazed that the same roadblocks continued to
exist. On March 16, 1961, he again wrote Rusk relating what had
happened and commenting:
“In spite of these developments I cannot believe that this
administration is disposed to adhere to the withholding policies of
the prior administration.”
Then Hardy let Rusk know that despite all the roadblocks put in the
way of the subcommittee, information had already been obtained that
raised serious questions about the operation of the ICA policing
system.
“The data which we have already assembled independently give us
reason to question whether either the Office of the Inspector General
and Comptroller or its predecessor organization has performed in a
satisfactory manner,” Hardy wrote.
“An office like this, exercising as it does an internal watchdog
function, is of particular concern to a subcommittee such as ours.
For when the Congress can be assured that such an office is doing a
good job, then the areas where independent congressional inquiry may
be required become fewer and smaller, and the work of Congress is
accordingly simplified. Certainly we cannot evaluate the work of this
office [OIGC] in any particular, if we are not permitted full access
to its files and interviews with its personnel.”
When Chairman Hardy called a hearing five days later on March 21,
the witnesses showed up with letters of instructions flatly barring
testimony. Secretary of State Rusk supplied each witness with the
form letter prohibiting free testimony “concerning the conduct of the
foreign aid program in Peru.
“I am writing this letter to instruct you that you are not authorized
to testify concerning the contents of any files of the International
Cooperation Administration or the Office of the Inspector General
and Comptroller in the Department of State which relates to an
investigation into charges of misconduct on the part of individuals
or corporate persons or, more generally, to testify concerning
any matter involved in such an investigation carried on by the
International Cooperation Administration or the Office of the
Inspector General and Comptroller in the Department of State.”
So this was what the Kennedy administration called “co-operation”
to “expedite your investigation and to make available to you all
information and documents relevant to your inquiry which we properly
can.” Chairman Hardy had hoped for better, but concluded that it was
time to end the polite letter writing and get down to tough talk.
“Until this morning,” he declared, “it was my sincere hope that we
would see some real improvement.”
Hardy had been frustrated for a full year in his effort to gain
access to the key documents on foreign aid in Peru. And the Kennedy
administration, in office already two months, had done nothing
to change the system that covered up for the dishonest and the
incompetent people who wasted foreign-aid funds. Worse yet, it
developed that twelve witnesses Hardy called in carried identical
letters of instructions from Rusk to refuse to testify or produce
records on any investigations conducted by ICA.
Hardy denounced the Rusk letter as “the most arrogant instruction”
ever given to government witnesses. Representative George Meader
declared that “a curtain had been rung down” on the operations of the
ICA.
Meader, the highest ranking Republican on the Hardy subcommittee,
demanded that Secretary Rusk should be brought before the
subcommittee to explain the barriers he was erecting against
investigations by Congress.
When Chairman Hardy agreed to call Rusk the very next day, State
Department officials said “it would be very difficult” for Rusk to
appear at that time for he was leaving the following evening for
Bangkok and a major international conference of the Southeast Asia
Treaty Organization nations.
Hardy declared that Rusk would be summoned before the subcommittee
when he returned from the international conference, and that in the
meantime he would be calling all other responsible State Department
officials in an effort to get to the bottom of the stalling.
For the record, he reviewed the long struggle to get information on
the Peru program from the Eisenhower administration. He also related
the details of the patient two-month wait to give the Kennedy
administration sufficient time to examine the problem carefully.
Then, to light a fire under the issue, Chairman Hardy disclosed
enough information to make it obvious that he was on the trail of
multimillion-dollar scandals in the handling of foreign aid in Peru.
He revealed that 2 million dollars in U.S. funds were spent on a
farm-to-market highway which led only to unarable mountainous land.
It was started before plans were completed, plans were changed while
it was being constructed, and the funds ran out when it was only half
finished.
He also told about an irrigation project built at Pampas de Noco. It
cost $125,000 of Americans’ money, but it didn’t work because there
simply was not enough water available in the area to make use of the
projected irrigation works.
John R. Neale, director of the United States Operations Mission in
Peru, had acquired a $200,000 interest in a ranching corporation that
received aid under the U.S. program. Although Neale had resigned
in 1958, there were indications that key ICA and State Department
personnel had protected him from a thorough investigation for months.
Hardy revealed widespread irregularities in the 14-million-dollar
drought relief program in Peru. He had testimony that as much as 60
per cent of the so-called “drought relief” went into unauthorized
channels and was no help to the drought victims.
Chairman Hardy made certain that President Kennedy was apprised
of the nature of the mismanagement and fraud being hidden by the
State Department. The reaction was fast, and the Rusk letter of
instructions was slapped down by the White House on direct orders
from President Kennedy.
Brooks Hays, the former congressman and Assistant Secretary of
State for Congressional Relations, assured Chairman Hardy that the
Rusk instructions would be rescinded, the documents released, and
witnesses freed to testify.
Witnesses called by Hardy a week later, on March 29, did testify
freely. These witnesses produced a letter from State Department Legal
Counsel Abram J. Chayes instructing them to forget the whole thing.
Chayes wrote:
“The instructions contained in the letter of March 21, 1961,
addressed to you by Secretary of State Dean Rusk, are hereby
withdrawn. In view of this fact, I would appreciate it if you would
return the letter to me and treat it as though it had not been sent.”
Nothing that Chayes could write, however, could erase from some
people’s minds the memory of this clumsy and arrogant effort
of the State Department to withhold. To ensure its perpetuity,
Representative Meader rose on the House floor two weeks later, on
April 17, to recite the story for the _Congressional Record_.
“In recent years, ambitious bureaucrats have concocted and promoted
the so-called doctrine of ‘executive privilege,’ which, in my
judgment, is a myth,” Meader said. “In my view, there is no right or
power in the executive branch of the Government to decide what facts
Congress needs concerning the conduct of the public business.... That
decision is clearly and properly a legislative decision.”
Meader declared that “the struggle between bureaucrats who wish to
hide their activities and committees of Congress insisting on access
to complete and accurate information concerning public business ...
has not received the attention it merits.”
The Michigan congressman was a Republican, to be sure, but he was one
of a handful who could not be accused of playing partisan politics
with this issue. No man in Congress insisted any more aggressively
than George Meader that the Eisenhower administration make records
available to the public, to Congress and the General Accounting
Office. When Meader quoted President Kennedy’s January 30 address on
the state of the Union, he did not do so in a malicious or partisan
manner.
Kennedy had said: “For my part, I shall withhold from neither the
Congress nor the people, any fact or report, past, present or future,
which is necessary for an informed judgment of our conduct and
hazards.”
“I wish this sentence could be printed in capital letters in the
_Congressional Record_,” Meader said. “Many of us welcomed that
clear, forthright statement as heralding a new policy in the
executive branch of the Government with respect to furnishing
information to congressional committees on request.”
Representative Meader was not critical of President Kennedy for the
delays on Peru, for President Kennedy had personally overridden his
Secretary of State. But Meader was wary of the future.
“As the bureaus and agencies in the executive branch of the
Government have grown in number, and in power,” he said, “there
has been a parallel growth in their efforts to shroud in secrecy
the manner in which they discharge their stewardship of the public
authority and moneys entrusted to them.”
Meader declared that “the question remained whether that laudable
generality [in President Kennedy’s address of January 30] would
be actually carried out in practice” or whether there would be
“procrastination and recalcitrance on the part of officials.”
Within two weeks of the March 29, 1961, showdown, the Hardy
subcommittee was receiving the documents on the U.S. aid program
in Peru. These were the documents, the release of which Attorney
General William P. Rogers had said “would gravely impair the proper
functioning and administration of the executive branch of the
Government.”
What the reports did do was to document fully the sloppy, wasteful,
and corrupt administration of foreign aid in Peru.
From the outset the Peru drought relief program had been riddled with
irregularities. There were shipments of 106,000 tons of grain meant
to be sold to help needy drought victims but which were sold, without
authorization, to pay administrative costs, port charges, and inland
transportation costs. Above all, the grain was not meant to be sold,
as it was, for the profiteering of grain millers in Peru. It wasn’t
to be sold to raise money to buy houses to be sold to influential
Peruvians at less than cost.
The mismanagement of the program was so raw that it hadn’t completely
escaped detection in Washington. A desk officer in 1957 had figured
that only 12,000 tons of the first 45,000 tons had been accounted for
and asked: “Who received the rest of the grain?”
No one answered his question, however, either in the Washington ICA
office or at the Embassy in Peru. When a Washington auditor was
finally sent to Peru, he found that no end-use checks had been made
by the United States Operations Mission (USOM). He stated:
“The lone USOM auditor, a local employee, stated that USOM officials
issued orders that no checks were to be made beyond the offices of
the committees selling [drought aid] foods. Thus, end users were
not contacted and no determination could be made as to the proper
utilization of food.”
Within the State Department and the ICA no aggressive action was
taken to find out whether there was any substance to the complaints
of conflicts of interest, waste, and major misuse of funds. Lethargy,
incompetence, excuses, and cover-up prevailed.
When Dr. Raymond C. Gibson, an employee of the Office of Education,
returned from an official visit in Peru, he called attention of high
officials of ICA to the activities of John R. Neale, head of the USOM
in Peru, who had a large interest in a farm receiving benefits of ICA
funds.
Instead of investigating Neale’s holdings, top ICA officials
characterized Gibson’s complaint as “character assassination.” The
officials did assign an investigator to the case but told him to
“assure Neale of our belief in his integrity.”
Within a few months, the case had become known within ICA not as the
Neale case, but the Gibson case. ICA started a full field background
investigation of Dr. Gibson, and one official pledged to hold Dr.
Gibson to “full accountability” for filing a complaint against Neale.
The ICA investigators overlooked information in the ICA files
which disclosed that Neale’s family had an interest in a Peru
ranch. Continued complaints finally forced ICA hearings on Neale in
1958, but even then his character witnesses included the American
Ambassador to Peru, Theodore Achilles, and Rollin S. Atwood, regional
director of the Office of Latin-American Operations of the ICA.
“When Achilles and Atwood appeared before the ICA hearing board as
character witnesses for Neale, they seemed more concerned with the
motivations of the complainants than they were with the truth of
their allegation,” the report of the Hardy subcommittee stated.
“The high position of Neale and the high position of his uncritical
supporters, Atwood and Achilles, somewhat cowed the investigators
assigned to this case.
“At the time of his removal, Neale had been affiliated with the Bazo
Corporation [the ranching operation] for over eight years, and for
at least four of those years ICA had in its possession sufficient
information to warrant an investigation which ... would have turned
up the basic facts.
“It was congressional intervention that precipitated the Guinane
investigation”—the final investigation that brought about Neale’s
resignation.
“All employees of ICA seem to know, without being specifically
instructed,” the subcommittee report went on, “that the preferred
policy of the agency, and the Embassy in this instance, is to brush
this sort of instance under the rug, with a quiet ‘resignation’ or
‘retirement.’”
“Although the old office of Personnel Security and Integrity in ICA
was primarily responsible for the ineffective investigation in the
Neale case, its successor, OIGC, did not perform with any more credit
in a related matter.”
The ICA had used “executive privilege” to cover up its failures for
several years. Instead of learning from past failures, the agency
continued its negligence with full confidence that “executive
privilege” could hide the failures from Congress, the General
Accounting Office and the public.
The details of the scandals had not been known to President
Eisenhower, nor had he known of the incredible laxity in the
investigative units in the ICA. However, by promoting a secrecy cloak
for the investigators of ICA he had allowed the ICA to hide the major
defects in a vital part of an agency administering approximately 4
billion dollars a year.
CHAPTER XVII
A Pending Problem for JFK
In its first year, the Kennedy administration had tackled the problem
of secrecy with noble thoughts and brave deeds. President Kennedy
could not have spoken more clearly on the need for open government
in a democratic society. Moreover, he had followed up his words with
stringent action by overruling Secretary of State Dean Rusk on the
one occasion when the State Department had tried to hide records
behind a claim of “executive privilege.”
Chairman Edward Hebert said that his Armed Services subcommittee was
receiving better co-operation than it had ever received from the
Defense Department. Hebert had talked with President Kennedy and been
assured that the administration felt it needed the help and prodding
of a committee of Congress to cut the billions in wasteful defense
spending.
The investigations by Chairman Porter Hardy were proceeding on the
same note of co-operation, and the Virginia Democrat said he was
“hopeful that it will continue.” Chairman Hardy’s subcommittee
had a number of investigations of foreign aid under way, and he
believed that some of these investigations would be a real test of
the sincerity and consistency of the Kennedy administration stand on
“executive privilege.”
Though many good signs indicated the Kennedy administration meant
what it said about an open information policy, there were other
signs that did not augur so well. Perhaps the most important was
President Kennedy’s personal sensitivity to criticism and his
inclination to try to punish those he regarded as being “enemies” or
unfairly critical.
The President himself had telephoned reporters and editors to
complain about stories he considered unfair or unfavorable to him or
his administration. At one time, the reporters for _Time_ magazine
were cut off from contact with White House sources on a direct order
from the President. The order was lifted in about two weeks, after
President Kennedy and his assistants felt _Time’s_ reporters and
editors had been given a lesson.
Other persons in the White House behaved even tougher, threatening
retaliation against reporters they felt had done them damage. Lloyd
Norman, Pentagon correspondent for _Newsweek_ magazine, became the
target of an FBI investigation when he beat his colleagues with an
exclusive report on the alternative plans for action on the Berlin
crisis. The investigation was instigated despite the fact that before
publication the report was read by a high White House figure who
raised no question as to the propriety of printing it.
A memorandum by Frederick G. Dutton, Special Assistant to the
President, contained language on government information policies that
“shocked” Representative John Moss. The Dutton memorandum of July
20, 1961, was attached to a Civil Service Commission statement on
standards of conduct for government employees. It stated:
“Employees may not disclose official information without either
appropriate general or specific authority under agency regulations.”
Congressman Moss asked the White House for a “complete reversal” of
the statement, plus a “positive directive to all employees to honor
the people’s right to know as a routine matter in the conduct of
government business.
“This restrictive attitude expressed by this [Dutton] language is a
complete reversal of all of the policies which the House government
information subcommittee has supported for many years,” Moss wrote
to Dutton. “It is also a direct contradiction of the clear position
which President Kennedy has taken....”
The White House immediately withdrew the Dutton memorandum and
asserted the right of the people to be informed about government
operations. The incident nevertheless underscored the need for
constant vigilance to prevent directives that in substance tell
government employees to keep their mouths shut.
At the Pentagon there were also a few unhealthy signs that bore
watching. Defense Secretary Robert Strange McNamara was generally
praised as a bright, able, and hard-working public official, but his
performance in the information area did not elicit equally laudatory
comments. Though McNamara’s press chief, Assistant Secretary of
Defense Arthur Sylvester, had served for years as a reporter in the
Washington Bureau of the Newark _News_, he was sharply critical of
the press in his first months in office. He did little to smooth the
road for the Defense Secretary or to educate McNamara’s attitudes on
freedom of information.
Testimony released in May 1961 by the Senate Committee on Armed
Services disclosed that McNamara appeared to favor less information
for the public as well as misinformation on our military developments.
“Why should we tell Russia that the Zeus development may not be
satisfactory?” McNamara asked the Armed Services Committee. “What we
ought to be saying is that we have the most perfect anti-ICBM system
that the human mind will ever devise. Instead, the public domain is
already full of statements that the Zeus may not be satisfactory,
that it has deficiencies. I think it is absurd to release that kind
of information.”
The McNamara statement was met with immediate criticism from
Representative John E. Moss, chairman of the House Government
Information Subcommittee. Moss, a Democrat, declared that McNamara’s
testimony was “a gross disservice” to the people of the United
States and inconsistent with views expressed by President Kennedy.
He asked how the McNamara statement could be reconciled with
President Kennedy’s pledge to “withhold from neither the Congress
nor the people any fact or report, past, present or future, which is
necessary for an informed judgment of our conduct and hazards.”
Representative Moss declared that “advocacy of a program of
misinformation constitutes a grave disservice to a nation already
confused and suffering from informational malnutrition. To claim
perfection in a weapon system, thereby creating a false sense of
security, only results in complacency complained about by the very
officials who would further feed it.”
McNamara, Moss said, “expressed an attitude which while not new is
nevertheless most alarming.”
In the face of a barrage of similar criticism, the Defense Department
hurriedly released a statement that McNamara did not mean to mislead
the American people but only the Russians.
At his press conference on May 26, 1961, the Defense Secretary issued
a four-point statement to serve as a guide on information policy.
McNamara, forty-four-year-old Phi Beta Kappa and a former assistant
professor of business administration at Harvard, had learned at least
what his published position must be.
“In a democratic society,” his clarification began, “the public must
be kept informed of the major issues in our national defense policy.”
While pointing out the need to avoid disclosure of information
that might aid our potential enemies, he declared it “is equally
important to avoid overclassification. I suggest that we follow this
principle: When in doubt underclassify.”
The Defense Secretary also said that public statements must reflect
the policy of the Defense Department, and that Defense personnel
should not discuss “foreign policy subjects, a field which is
reserved for the President and the Secretary of State.”
Representative Moss commended Defense Secretary McNamara for
“recognition of the people’s right to know.” He singled out for
praise the McNamara comment that “the public has at least as much
right to bad news as good news.” However, he reserved judgment on the
instructions restricting comment on policy matters. Moss asked to be
advised on all directives or other instructions used in implementing
the general information policy. He had learned by now that fine
policy statements can mask the most intolerable withholding of
information.
The reasonableness of the general policy statements on Defense
information could hardly be criticized, but complaints were beginning
to be heard about a tightening of curbs on speeches by military
officers and about the difficulty of access to personnel at the
Pentagon.
_The Navy Times_, a private publication, commented:
“Americans generally ought to be having some misgivings over the
current trend at the Pentagon. There’s an air of secrecy, of
censorship, of arbitrary rulings.”
The Defense Department toyed with the idea of invoking “executive
privilege” when two committees of Congress initiated investigations
of shipments of strategic materials to various Iron Curtain
countries. The Internal Security Subcommittee of the Senate and
a House Select Committee on Export Control were embarking on a
repetition of the East-West trade investigations that Robert
Kennedy, then a committee lawyer, had directed five years earlier.
As Attorney General, Robert Kennedy advised against the use of
“executive privilege.”
Despite assurances that the Kennedy administration would not claim
“executive privilege,” Chairman Porter Hardy wanted the law to state
that reports of the Inspector General and Comptroller on foreign-aid
administration would be made available to Congress and the General
Accounting Office (GAO) auditors. Promises were fine, but Chairman
Hardy wanted a firm law to bolster his subcommittee’s authority to
obtain records on foreign-aid spending.
Hardy’s amendment to the foreign-aid legislation of 1961 provided
that if the Inspector General and Comptroller failed to make
information available to Congress and the GAO auditors, their funds
would be cut off by GAO. The House gave the amendment overwhelming
support.
The Senate, however—with support from the Kennedy
administration—emasculated the Hardy amendment by adding what
Representative George Meader described as the “Presidential escape
clause.” This clause provided that the Executive can avoid furnishing
information on foreign-aid expenditures upon a “certification by the
President that he has forbidden the furnishing thereof pursuant to
such request and his reason for so doing.”
Representatives Hardy and Meader remembered the experience with
a similar escape clause that was attached to the foreign-aid
legislation of 1959. It had enabled President Eisenhower simply to
sign a certification in order to bar Senate and House investigators
from every key record they sought dealing with mismanagement of the
foreign-aid program. The proof of the weakness of a law with such
an escape clause had caused the Congress to pass the tight Hardy
amendment in 1960. Although President Eisenhower defied the specific
intent of the Hardy amendment by hiding the Peru foreign-aid records,
the 1960 provisions had been considered strong enough for a court
test if Eisenhower had remained in office.
The Kennedy administration’s support of the “Presidential escape
clause” in the 1961 legislation was a bad omen to Representative
Meader.
“The effect of the Presidential escape clause ...” he said, “is to
weaken existing law and to diminish the power the Congress enjoyed
during [the last year of] the Eisenhower administration to obtain
information from the Executive of foreign aid expenditures.
“This constitutes a victory for the bureaucrats, a defeat for
Congress, and a serious setback in the fight against government
secrecy.”
Criticism of the Kennedy administration from some Republicans
could be disregarded. But from George Meader it invited serious
attention. As the foregoing chapters have shown, he was one of the
most outspoken critics of the information policies of the Eisenhower
administration.
Meader had joined Representative Hardy, a Democrat, in criticizing
the State Department in March when Secretary of State Rusk issued
orders barring the Hardy committee from testimony or records on the
Peru scandals. But he had also joined Hardy in applauding President
Kennedy for overruling his own Secretary of State and making the
ICA records on Peru foreign-aid scandals available to the Hardy
subcommittee.
On July 28, 1961, the Democratic-controlled House Government
Operations Committee issued a report on information policies. It
was, of course, highly critical of the Eisenhower administration but
not completely approving of the new administration. The committee
found the record of the first months of the Kennedy administration
“mixed.” However, it saw a “hopeful note” in the fact that President
Kennedy had given “positive policy direction from the top.”
The report contained a favorable comment on “the Presidential
determination—even at the cost of reversing his Secretary of State—to
live up to the new administration’s pledge to honor the right to
know.”
Democrats took great party pride in the speeches President Kennedy
made to assure the public of his concern for freedom of information.
“The essence of free communication must be that our failures as well
as our successes will be broadcast around the world,” President
Kennedy said at the convention of the National Association of
Broadcasters. “And therefore we take double pride in our successes.
“The great inner resource of freedom, the resource which has kept the
world’s oldest democracy continuously young and vital, the resource
which has always brought us our greatest exploits in time of our
greatest need, is the very fact of the open society.
“Thus, if we are once again to preserve our civilization, it will
be because of our freedom, and not in spite of it.... For the flow
of ideas, the capacity to make informed choices, the ability to
criticize, all the assumptions upon which political democracy rests,
depends largely upon communication.”
By the time the House Government Operations Committee was ready
to file a second report on government information policies, the
Democrats were aglow with admiration for President Kennedy. The
September 21, 1961, report stated: “For the first time since the
subcommittee entered the fight against excessive Government secrecy
six years ago, there is a powerful new weapon—the support of a
President who is clearly on record in favor of the greatest flow of
Government information.”
Representative Meader thought the Democrats were too willing to
praise a Democratic administration. In his dissent, he wrote:
“I cannot subscribe to the majority report because in my judgment it
has political overtones and accepts the self-serving declarations of
officials in the new administration rather than actual performance
as indicating an improvement in the attitude of the executive branch
toward providing information to the Congress and the public.
“The majority condemns the Eisenhower administration record
on secrecy in government while praising that of the Kennedy
administration. Such a distinction in my opinion, is not justified.”
Meader well remembered the fine words spoken in 1952 and 1953 on same
subject by officials of the Eisenhower administration. He knew that
the true test of the Kennedy administration lay not with words but
with the administration’s continued willingness to support the power
of inquiry of the Congress.
A few days after the release of the House report and Meader’s
dissent, Attorney General Kennedy upheld the importance of
investigations by Congress.
On the “Meet the Press” television show on September 24, James
Reston, Bureau Chief for The New York _Times_, said to Attorney
General Kennedy:
“In the field of ‘executive privilege’ ... you seem more willing than
previous Presidents and administrations to give information sought by
Congress.”
“As far as ‘executive privilege’ is concerned,” the Attorney General
answered, “I was associated with a congressional committee for
five or six years and had battles with the executive branch of the
government regarding obtaining information.
“I think it is terribly important to insure that the executive branch
of the government is not corrupt and that they are efficient, that
the legislative branch of the government has the ability to check on
what we are doing in the executive branch of the government.
“So, in every instance that has been brought to our attention in the
Department of Justice so far by various departments of the executive
branch where this question has been raised we have suggested and
recommended that they make the information available to Congress.
We will continue to do that. I don’t say that there might not be an
instance where ‘executive privilege’ might be used, but I think it is
terribly important that the executive branch of the government, as
powerful and strong as it is, that there be some check and balance on
it, and in the last analysis the group that can best check and insure
that it is handling its affairs properly is the Congress of the
United States, so we will lean over backwards to make sure that they
get the information they request.”
There was no reason to doubt the sincerity of the youthful Attorney
General, and in fact there was every reason to believe he meant what
he said. He was speaking from personal experience, he seemed to speak
with conviction, and it was not yet time to be posturing for the 1964
political campaign.
It was, of course, relatively easy to take a broad view at this time
when opening records could only expose crimes or mismanagement that
had developed when the Eisenhower administration was in power. It
would take more courage and great understanding of government to open
records that might expose a trusted Kennedy subordinate or embarrass
the Kennedy administration.
Barely more than a year after the Kennedy administration had taken
office, a situation arose which raised grave question as to what its
long-range policy would be. In February 1962, during the hearings on
alleged muzzling of military officers, President Kennedy invoked the
claim of “executive privilege” at the request of Defense Secretary
Robert McNamara. McNamara wished to avoid identifying for the Senate
Preparedness Subcommittee the Pentagon officials who had censored
specific speeches by high military officers.
President Kennedy’s letter to McNamara of February 8, 1962 (see
Appendix D), set out an ill-defined claim that the national interest
was at stake. The letter contained some terminology that seemed to
claim an absolute right to bar testimony before Congress by any
subordinate career officials. It was attacked by Senator Strom
Thurmond, the South Carolina Democrat, as a “dangerous” precedent
that would have barred Congress from investigating the Pearl Harbor
disaster or obtaining information on a wide variety of scandals.
Many political writers excused President Kennedy. Some pointed to
language in the letter they said indicated that he was not setting
a broad precedent but was merely shutting off an investigation they
considered to be senseless. Representative Moss declared that the
Senate subcommittee had the legal right to ask the questions to
determine which censors had blue-penciled which speeches.
It was not clear immediately whether the February 8 letter was to
be an isolated incident or a troublesome broad precedent for more
arbitrary secrecy in the tradition of the May 17, 1954, Eisenhower
letter.
CHAPTER XVIII
A Solution
History establishes that any administration may be afflicted with
laxity, incompetence, and even outright fraud. History has also
taught that any administration can harbor men who want to hide
mistakes and corruption.
It is true that no President has been directly involved in fraudulent
activity, and it seems unlikely that any ever will be. Holding such
a high office would inspire almost any man to rise above the desire
for personal enrichment, particularly if the cost might be damaging
to his place in history. But any President might be tempted to hide
records on a claim of “executive privilege” if he felt he could save
some trusted subordinate from the slings of the opposition political
party.
In varying degrees, our Presidents have been dependent upon a
palace guard. The nature of the position, with all its vast
responsibilities, makes a circle of close advisers inevitable.
Thus Presidents of the past have sought information about alleged
improprieties or corruptions from the very men who have been accused
of perpetrating them. Instead of facts and a clear analysis of the
problem—whether it was Teapot Dome, tax scandals, or Dixon-Yates—the
Presidents have received misinformation and excuses. The accusations
have been explained away to our Presidents as partisan complaints
from politicians maliciously bent on destroying the administration’s
programs. Such explanations from palace guards unfortunately have
been all too effective and have obscured the facts that would have
alerted our Presidents to conflicts of interest, favoritism, and
fraud.
President Kennedy and future Presidents will face the same kind of
pitfalls. Regardless of their own integrity, they cannot be expected
to conduct personal investigations of each of their subordinates. The
Presidents and the people must therefore depend upon investigations
from outside the executive branch—by the Congress and the General
Accounting Office—for an aggressive search for the facts.
Investigations by Congress have demonstrated the failure of the
military departments to police themselves effectively from the
inside. In every recent year, the Congress and the GAO have
pinpointed the waste of hundreds of millions of dollars on
inefficient, incompetent, or corrupt handling of Defense contract
arrangements.
Examination of testimony on the foreign-aid programs in Laos and Peru
shows that the State Department is little better than the Defense
Department in rooting out mismanagement and corruption. There are
dozens of other areas within the bureaucracy where the record is just
as bad.
It is doubtful that we will ever eliminate corruption in the federal
government, but it must be kept under closer control or it can spread
with devastating impact. Nothing speeds the growth of corruption
more than policies that foster arbitrary secrecy. Secrecy allows
little scandals to become major scandals, costly to the taxpayers,
devastating to our foreign-aid program, to our position of defense
readiness, and to our national morale.
“Secrecy,” as the House Government Operations Committee has put it,
“is the handmaiden of bureaucracy, especially military bureaucracy.
It has so pervasive an effect that all government becomes invested
with the urge to restrict—even those routine agencies which should be
wide open to the public.”
In these pages, I have not attempted to examine every agency of
government. I have examined enough, however, to show how severe the
infection of secrecy has become, what dire symptoms it produces, and
how seriously it threatens the health of our democracy.
It can be wiped out. As treatment for a permanent cure, I suggest the
following steps:
1 _All officials except the President should be obligated to explain
all their actions to Congress and the General Accounting Office,
unless specific laws are passed for withholding information._ This
does not mean that the public or Congress should have access to all
papers when a decision is pending, but at a later date Congress
should have access to all records and testimony concerning events
leading up to the executive decisions.
A good example from recent history that shows the value of a properly
conducted hearing was the Senate investigation of President Truman’s
firing of General Douglas MacArthur in 1951.
The special Senate committee—selected with a reasonably even division
of political forces from the Armed Services and Foreign Relations
committees—did not seek testimony from President Truman. However, it
did require the testimony of General Omar Bradley, the Chairman of
the Joint Chiefs of Staff. Bradley testified on all events leading up
to the firing, including his meeting with President Truman. Bradley
was not asked to recount verbatim his discussion with President
Truman, but he testified he met with President Truman, that the
MacArthur actions were discussed, and the decision was made by
President Truman to fire General MacArthur.
The special Senate committee met behind closed doors but released a
daily transcript of testimony that had been examined to eliminate any
matter that might violate national military security standards.
Had the Eisenhower administration’s doctrine of “executive privilege”
prevailed at that time, a total secrecy blanket could have been
thrown around the Defense Department, the Joint Chiefs of Staff, and
the White House. There would have been no way of determining the
facts leading up to the decision, except as the President found it
convenient to reveal them.
How much better it was for all concerned that the MacArthur firing
was carefully examined and that the public was apprised of all the
material facts.
2 _Congress should enact special laws to cover the specific areas in
which withholding of records is deemed necessary to the public good._
There are now laws that provide for withholding of federal income
tax information from the public, and from all committees of Congress
except certain ones with supervisory jurisdiction over the Internal
Revenue Service. Laws have been enacted providing for withholding of
Defense information that involves national security. Other areas—FBI
reports, patent secrets, business reports, or personnel files—could
be covered by special legislation of a similar nature, but modified
to meet the requirements of the area in which the withholding is
needed.
3 _Congress should provide stiff criminal penalties for use against
government officials who withhold information from properly
authorized committees of Congress or the GAO._ This legislation
should also provide the mechanism for prosecution to be initiated by
the Congress or the GAO. Such a mechanism is necessary to avoid the
situation wherein an Attorney General, advocate for the President
and appointed by the President, simply refuses to enforce the law or
gives patently false legal opinions to avoid enforcement.
4 _The Congress should establish an effective means for systematic
review of papers carrying national security classifications of
“confidential,” “secret,” or “top secret.” Or the President could
establish a small committee to spot-check, review, and challenge
questionable use of national security classifications._ However the
review group is set up, its members should be selected from outside
the military field, and they should be persons with a strong and
responsible interest in open government. They should have authority
to challenge arbitrary or questionable security classifications and
authority to obtain explanations from all persons with a role in
questionable classifications.
This review group should not have the power to change
classifications, only the power to recommend changes. It should
have the authority, however, to file reports with Congress, with
department heads, and with the President that could be made public.
Such reports should identify individuals engaged in arbitrary or
questionable overclassification, as well as those responsible for
failing to take steps to declassify.
* * * * *
Only through the establishment of these checks on executive secrecy
can the public be assured that laws are administered in the way that
the Congress intended them to be. Only in this way can the public be
certain that the laws are not twisted or disregarded by an arbitrary
bureaucracy operating in secret.
And what about checks upon possible abuses by the investigating
committees of Congress? There are many. The courts offer some of the
most effective. Rulings in recent years have put limitations on the
power of an investigating committee. The committee must be properly
authorized by the House or Senate, with a specific authority, and it
must operate within the scope of that authority. The courts will not
uphold a contempt citation if a committee of Congress is operating
outside its proper authority, or if the questions asked are not
pertinent to the inquiry. Recent rulings have held that the committee
chairman must also explain to the witness the reasons why the
questions are pertinent and necessary to carry out the legislative
function.
In addition to these legal limitations, committees of Congress are
held in check by their own bipartisanship and the fact that they
usually operate in the public view. The members of the committees
nearly always represent a cross section of the Congress, everything
from extreme liberals to extreme conservatives with many gradations
between. This representation assures a spokesman for almost every
point of view. It also assures cross examination of witnesses in most
cases, for minority counsel is normally provided to help minority
members bring out facts that the majority may choose to overlook or
minimize.
In recent years, most committees have adopted rules of procedure to
assure some element of fair play. Since most hearings are held in
public, there is the opportunity for the press and other interested
groups and individuals to view the questioning and to point out any
lapses in fair play.
Open congressional hearings do not absolutely assure fair play, but
they do represent the best practical means this country has so far
devised for assuring the public’s right to know about the running of
its government.
It is pertinent to note here that in England, which is generally
regarded by political authorities as a model for democratic
procedures, the need for constant inquiry into governmental policies
and administration of the laws is fully recognized.
The British Government, unlike ours, is totally responsible to the
Parliament, with the Prime Minister and other ministers coming out
of the Parliament. This system has resulted in the development of
a number of devices to accomplish the same basic purpose that our
congressional investigations should accomplish.
There is a “question time” in Parliament four days a week during
which any member of the House of Commons may interrogate the various
ministers and even the Prime Minister. This periodic opportunity for
questioning makes it possible for the opposition either to obtain
immediate answers or to demonstrate evasiveness on crucial issues.
Also the Parliament is free to investigate through select committees
of the House of Commons which are unlimited in their power to compel
testimony and production of records and to punish for contempt.
The contempt can be punished by jailing by the Parliament for the
duration of the term, and British courts have left this power
unlimited over the years.
The “question time” and select committees are supplemented by Royal
Commissions of Inquiry, technically established and appointed by the
Crown and Tribunals of Inquiry, established by the Parliament with
members named by the Crown.
The Royal Commissions have had no power to compel testimony and
production of records. However, co-operation is usually obtained
because of the pressure of British public opinion, as well as the
ever-present threat that a select committee of the Commons can take
jurisdiction and use its contempt powers to force testimony.
The Tribunals of Inquiry operate with the normal court powers of
subpoena and oaths to compel testimony. This is a device for taking
an inquiry out of the partisan political atmosphere of a legislative
investigation.
In the United States the question is often asked whether greater
congressional freedom in questioning officials of the executive
branch would not interfere with the efficiency of the government.
Much of the business of federal government is simply keeping records
and preparing testimony to account for the custodianship of the
government agencies. In most instances it would take an official
far less time to go before a committee of Congress and give a frank
account of the activities of his agency than it has taken to devise
cover-ups for frauds, mismanagement, and embarrassing oversights.
The Teapot Dome scandals could have been fully disclosed in a few
months instead of several years. The details of some of the Truman
tax scandals could have been uncovered in a few weeks. And again, a
frank accounting could have explained the Dixon-Yates contract in a
matter of days.
Congress can be of great service to a cabinet officer in keeping
his agency clean. If a congressional committee is unreasonable,
or brutal, or oversteps its jurisdiction, such abuses, it must be
remembered, take place in public where they can be seen and remedied.
The President and others in the executive branch have the personnel
and facilities for pointing out the abuses so they can be eradicated
in the face of public opinion.
Ours was designed to be a government of laws, and not a government
of men. It was not intended that the President or any other
official would have a right to disregard the laws of Congress in
accounting on government activity. The President, it should be
pointed out, has all of the protection he needs to prevent Congress
from unduly interfering with him in carrying out his executive
responsibilities. The separation of powers of the three branches of
government is clearly set out in the Constitution, and the only way
the Constitution has provided for Congress to take action against
the President is to impeach him. Since no President yet has been
impeached, this procedure would be resorted to in only the most
drastic of circumstances.
The President of the United States, with the vast power and prestige
of his office, has the obligation to set a tone of government that
assures the fullest possible flow of information consistent with
the nation’s security. He must take the lead in breaking down the
arrogance of the bureaucracy that assumes a right to keep the
knowledge of the people’s business from the people themselves, and
thus restore the people’s faith in their governmental servants.
President Kennedy has made an uncertain start. Whether he succeeds
depends not only on him, but on the press and the public as well. We
cannot afford to allow our faith in a President’s good intentions and
his own personal integrity to blind us, as we did during President
Eisenhower’s administration, to the machinations of the Washington
cover-up. The press, the Congress, the public must make certain
that Attorney General Kennedy and other key members of the Kennedy
administration remember how “terribly important” it is that Congress
and the Government Accounting Office maintain full access to the
records of government.
When the old secrecy practices are cast aside and the freedom of
information guaranteed, then will our democracy flourish as the
founding fathers intended it should.
APPENDIX A
_Letter from President Eisenhower to the Secretary of Defense_
THE WHITE HOUSE,
_May 17, 1954_
The Honorable the SECRETARY OF DEFENSE,
_Washington, D. C._
DEAR MR. SECRETARY: It has long been recognized that to assist the
Congress in achieving its legislative purposes every Executive
Department or Agency must, upon the request of a Congressional
Committee, expeditiously furnish information relating to any matter
within the jurisdiction of the Committee, with certain historical
exceptions—some of which are pointed out in the attached memorandum
from the Attorney General. This Administration has been and will
continue to be diligent in following this principle. However, it
is essential to the successful working of our system that the
persons entrusted with power in any one of the three great branches
of Government shall not encroach upon the authority confided to
the others. The ultimate responsibility for the conduct of the
Executive branch rests with the President.
Within this Constitutional framework each branch should co-operate
fully with each other for the common good. However, throughout our
history the President has withheld information whenever he found
that what was sought was confidential or its disclosure would be
incompatible with the public interest or jeopardize the safety of
the Nation.
Because it is essential to efficient and effective administration
that employees of the Executive Branch be in a position to be
completely candid in advising with each other on official matters,
and because it is not in the public interest that any of their
conversations or communications, or any documents or reproductions,
concerning such advice be disclosed, you will instruct employees
of your Department that in all of their appearances before the
Subcommittee of the Senate Committee on Government Operations
regarding the inquiry now before it they are not to testify to
any such conversations or communications or to produce any such
documents or reproductions. This principle must be maintained
regardless of who would be benefited by such disclosures.
I direct this action so as to maintain the proper separation of
powers between the Executive and Legislative Branches of the
Government in accordance with my responsibilities and duties under
the Constitution. This separation is vital to preclude the exercise
of arbitrary power by any branch of the Government.
By this action I am not in any way restricting the testimony of
such witnesses as to what occurred regarding any matters where
the communication was directly between any of the principals in
the controversy within the Executive Branch on the one hand and a
member of the Subcommittee or its staff on the other.
Sincerely,
DWIGHT D. EISENHOWER
MEMORANDUM
For: the President.
From: the Attorney General.
One of the chief merits of the American system of written
constitutional law is that all the powers entrusted to the
government are divided into three great departments, the
Executive, the Legislative, and the Judicial. It is essential to
the successful working of this system that the persons entrusted
with power in any one of these branches shall not be permitted to
encroach upon the powers confided to the others, but that each
shall be limited to the exercise of the powers appropriate to its
own department and no other. The doctrine of separation of powers
was adopted to preclude the exercise of arbitrary power and to save
the people from autocracy.
This fundamental principle was fully recognized by our first
President, George Washington, as early as 1796 when he said: “...
it is essential to the due administration of the Government that
the boundaries fixed by the Constitution between the different
departments should be preserved....” In his Farewell Address,
President Washington again cautioned strongly against the danger
of encroachment by one department into the domain of another
as leading to despotism. This principle has received steadfast
adherence throughout the many years of our history and growth. More
than ever, it is our duty today to heed these words if our country
is to retain its place as a leader among the free nations of the
world.
For over 150 years—almost from the time that the American form of
government was created by the adoption of the Constitution—our
Presidents have established, by precedent, that they and members
of their Cabinet and other heads of executive departments have an
undoubted privilege and discretion to keep confidential, in the
public interest, papers and information which require secrecy.
American history abounds in countless illustrations of the refusal,
on occasion, by the President and heads of departments to furnish
papers to Congress, or its committees, for reasons of public
policy. The messages of our past Presidents reveal that almost
every one of them found it necessary to inform Congress of his
constitutional duty to execute the office of President, and, in
furtherance of that duty, to withhold information and papers for
the public good.
Nor are the instances lacking where the aid of a court was sought
in vain to obtain information or papers from a President and the
heads of departments. Courts have uniformly held that the President
and the heads of departments have an uncontrolled discretion to
withhold the information and papers in the public interest, they
will not interfere with the exercise of that discretion, and that
Congress has not the power, as one of the three great branches of
the Government, to subject the Executive Branch to its will any
more than the Executive Branch may impose its unrestrained will
upon the Congress.
PRESIDENT WASHINGTON’S ADMINISTRATION
In March 1792, the House of Representatives passed the following
resolution:
“_Resolved_, That a committee be appointed to inquire into the
causes of the failure of the late expedition under Major General
St. Clair, and that the said committee be empowered to call for
such persons, papers, and records, as may be necessary to assist
their inquiries” (3 Annals of Congress, p. 493).
This was the first time that a committee of Congress was appointed
to look into a matter which involved the Executive Branch of the
Government. The expedition of General St. Clair was under the
direction of the Secretary of War. The expenditures connected
therewith came under the Secretary of the Treasury. The House
based its right to investigate on its control of the expenditures
of public moneys. It appears that the Secretaries of War and the
Treasury appeared before the committee. However, when the committee
was bold enough to ask the President for the papers pertaining
to the General St. Clair campaign, President Washington called a
meeting of his Cabinet (Binkley, _President and Congress_, pp.
40-41).
Thomas Jefferson, as Secretary of State, reports what took place at
that meeting. Besides Jefferson, Alexander Hamilton, Henry Knox,
Secretary of War, and Edmond Randolph, the Attorney General, were
present. The Committee had first written to Knox for the original
letters, instructions, etc., to General St. Clair. President
Washington stated that he had called his Cabinet members together,
because it was the first example of a demand on the Executive for
papers, and he wished that so far as it should become a precedent,
it should be rightly conducted. The President readily admitted that
he did not doubt the propriety of what the House was doing, but he
could conceive that there might be papers of so secret a nature
that they ought not to be given up. Washington and his Cabinet
came to the unanimous conclusion:
“First, that the House was an inquest, and therefore might
institute inquiries. Second, that it might call for papers
generally. Third, that the Executive ought to communicate such
papers as the public good would permit, and ought to refuse those,
the disclosure of which would injure the public; consequently were
to exercise a discretion. Fourth, that neither the committee nor
House had a right to call on the Head of a Department, who and
whose papers were under the President alone; but that the committee
should instruct their chairman to move the House to address the
President.”
The precedent thus set by our first President and his Cabinet was
followed in 1796, when President Washington was presented with a
resolution of the House of Representatives which requested him to
lay before the House a copy of the instructions to the Minister of
the United States who negotiated the treaty with the King of Great
Britain, together with the correspondence and documents relative to
that treaty. Apparently it was necessary to implement the treaty
with an appropriation which the House was called upon to vote. The
House insisted on its right to the papers requested, as a condition
to appropriating the required funds (_President and Congress_,
Wilfred E. Binkley [1947], p. 44).
President Washington’s classic reply was, in part, as follows:
“I trust that no part of my conduct has ever indicated a
disposition to withhold any information which the Constitution has
enjoined upon the President as a duty to give, or which could be
required of him by either House of Congress as a right; and with
truth I affirm that it has been, as it will continue to be while I
have the honor to preside in the Government, my constant endeavor
to harmonize with the other branches thereof so far as the trust
delegated to me by the people of the United States and my sense of
the obligation it imposes to ‘preserve, protect, and defend the
Constitution’ will permit” (Richardson, _Messages and Papers of the
Presidents_, vol. 1, p. 194).
Washington then went on to discuss the secrecy required in
negotiations with foreign governments, and cited that as a reason
for vesting the power of making treaties in the President, with the
advice and consent of the Senate. He felt that to admit the House
of Representatives into the treaty-making power, by reason of its
constitutional duty to appropriate monies to carry out a treaty,
would be to establish a dangerous precedent. He closed his message
to the House as follows:
“As, therefore, it is perfectly clear to my understanding that
the assent of the House of Representatives is not necessary to
the validity of a treaty; ... and as it is essential to the due
administration of the Government that the boundaries fixed by the
Constitution between the different departments should be preserved,
a just regard to the Constitution and to the duty of my office,
under all the circumstances of this case, forbids a compliance with
your request” (Richardson, _Messages and Papers of the Presidents_,
vol. 1, p. 196).
PRESIDENT JEFFERSON’S ADMINISTRATION
In January 1807, Representative Randolph introduced a resolution,
as follows:
“_Resolved_, That the President of the United States be, and he
hereby is, requested to lay before this House any information in
possession of the Executive, except such as he may deem the public
welfare to require not to be disclosed, touching any illegal
combination of private individuals against the peace and safety of
the Union, or any military expedition planned by such individuals
against the territories of any Power in amity with the United
States; together with the measures which the Executive has pursued
and proposes to take for suppressing or defeating the same” (16
Annals of Congress [1806-1807], p. 336).
The resolution was overwhelmingly passed. The Burr conspiracy was
then stirring the country. Jefferson had made it the object of
a special message to Congress wherein he referred to a military
expedition headed by Burr. Jefferson’s reply to the resolution was
a Message to the Senate and House of Representatives. Jefferson
brought the Congress up to date on the news which he had been
receiving concerning the illegal combination of private individuals
against the peace and safety of the Union. He pointed out that
he had recently received a mass of data, most of which had been
obtained without the sanction of an oath so as to constitute formal
and legal evidence. “It is chiefly in the form of letters, often
containing such a mixture of rumors, conjectures, and suspicions
as renders it difficult to sift out the real facts and unadvisable
to hazard more than general outlines, strengthened by concurrent
information or the particular credibility of the relator. In
this state of the evidence, delivered sometimes, too, under the
restriction of private confidence, neither safety nor justice will
permit the exposing names, except that of the principal actor,
whose guilt is placed beyond question” (Richardson, _Messages and
Papers of the Presidents_, vol. 1, p. 412, dated January 22, 1807).
SIMILAR ACTIONS BY PRESIDENTS JACKSON, TYLER, BUCHANAN, AND GRANT
On February 10, 1835, President Jackson sent a message to the
Senate wherein he declined to comply with the Senate’s resolution
requesting him to communicate copies of charges which had been
made to the President against the official conduct of Gideon Fitz,
late Surveyor-General, which caused his removal from office. The
resolution stated that the information requested was necessary both
in the action which it proposed to take on the nomination of a
successor to Fitz, and in connection with the investigation which
was then in progress by the Senate respecting the frauds in the
sales of public lands.
The President declined to furnish the information. He stated that
in his judgment the information related to subjects exclusively
belonging to the executive department. The request therefore
encroached on the constitutional powers of the executive.
The President’s message referred to many previous similar requests,
which he deemed unconstitutional demands by the Senate:
“Their continued repetition imposes on me, as the representative
and trustee of the American people, the painful but imperious duty
of resisting to the utmost any further encroachment on the rights
of the Executive” (ibid., p. 133).
The President next took up the fact that the Senate resolution
had been passed in executive session, from which he was bound
to presume that if the information requested by the resolution
were communicated, it would be applied in secret session to the
investigation of frauds in the sales of public lands. The President
said that, if he were to furnish the information, the citizen whose
conduct the Senate sought to impeach would lose one of his basic
rights, namely—that of a public investigation in the presence
of his accusers and of the witnesses against him. In addition,
compliance with the resolution would subject the motives of the
President, in the case of Mr. Fitz, to the review of the Senate
when not sitting as judges on an impeachment; and even if such
a consequence did not follow in the present case, the President
feared that compliance by the Executive might thereafter be quoted
as a precedent for similar and repeated applications.
“Such a result, if acquiesced in, would ultimately subject the
independent constitutional action of the Executive in a matter of
great national concernment to the domination and control of the
Senate;...
“I therefore decline a compliance with so much of the resolution of
the Senate as requests ‘copies of the charges, if any,’ in relation
to Mr. Fitz, and in doing so must be distinctly understood as
neither affirming nor denying that any such charges were made ...”
(ibid., p. 134).
One of the best reasoned precedents of a President’s refusal
to permit the head of a department to disclose confidential
information to the House of Representatives is President Tyler’s
refusal to communicate to the House of Representatives the reports
relative to the affairs of the Cherokee Indians and to the frauds
which were alleged to have been practiced upon them. A resolution
of the House of Representatives had called upon the Secretary of
War to communicate to the House the reports made to the Department
of War by Lieutenant Colonel Hitchcock relative to the affairs of
the Cherokee Indians together with all information communicated by
him concerning the frauds he was charged to investigate; also all
facts in the possession of the Executive relating to the subject.
The Secretary of War consulted with the President and under the
latter’s direction informed the House that negotiations were then
pending with the Indians for settlement of their claims; in the
opinion of the President and the Department, therefore, publication
of the report at that time would be inconsistent with the public
interest. The Secretary of War further stated in his answer to
the resolution that the report sought by the House, dealing with
alleged frauds which Lieutenant Colonel Hitchcock was charged to
investigate, contained information which was obtained by Colonel
Hitchcock by ex parte inquiries of persons whose statements were
without the sanction of an oath, and which the persons implicated
had had no opportunity to contradict or explain. The Secretary
of War expressed the opinion that to promulgate those statements
at that time would be grossly unjust to those persons, and would
defeat the object of the inquiry. He also remarked that the
Department had not been given at that time sufficient opportunity
to pursue the investigation, to call the parties affected for
explanations, or to determine on the measures proper to be taken.
The answer of the Secretary of War was not satisfactory to the
Committee on Indian Affairs of the House, which claimed the
right to demand from the Executive and heads of departments such
information as may be in their possession relating to subjects of
the deliberations of the House.
President Tyler in a message dated January 31, 1843, vigorously
asserted that the House of Representatives could not exercise a
right to call upon the Executive for information, even though it
related to a subject of the deliberations of the House, if, by
so doing, it attempted to interfere with the discretion of the
Executive.
The same course of action was taken by President James Buchanan in
1860 in resisting a resolution of the House to investigate whether
the President or any other officer of the Government had, by money,
patronage, or other improper means sought to influence the action
of Congress for or against the passage of any law relating to the
rights of any state or territory. (See Richardson, _Messages and
Papers of the Presidents_, vol. 5, pp. 618-19.)
In the administration of President Ulysses S. Grant the House
requested the President to inform it whether any executive offices,
acts, or duties, and if any, what, have been performed at a
distance from the seat of government established by law. It appears
that the purpose of this inquiry was to embarrass the President by
reason of his having spent some of the hot months at Long Branch.
President Grant replied that he failed to find in the Constitution
the authority given to the House of Representatives, and that the
inquiry had nothing to do with legislation (Richardson, _Messages
and Papers of the Presidents_, vol. 7, pp. 362-63).
PRESIDENT CLEVELAND’S ADMINISTRATION
In 1886, during President Cleveland’s administration, there
was an extended discussion in the Senate with reference to its
relations to the Executive caused by the refusal of the Attorney
General to transmit to the Senate certain documents concerning
the administration of the Office of the District Attorney for the
Southern District of South Alabama, and suspension of George W.
Durkin, the late incumbent. The majority of the Senate Committee
on the Judiciary concluded that it was entitled to know all
that officially exists or takes place in any of the departments
of Government and that neither the President nor the head of
a department could withhold official facts and information as
distinguished from private and unofficial papers.
In his reply President Cleveland disclaimed any intention to
withhold official papers, but he denied that papers and documents
inherently private or confidential, addressed to the President or a
head of a department, having reference to an act entirely executive
such as the suspension of an official, were changed in their nature
and became official when placed for convenience in the custody
of a public department. (Richardson, _Messages and Papers of the
Presidents_, vol. 8, pp. 378-79, 381.)
Challenging the attitude that because the executive departments
were created by Congress the latter had any supervisory power
over them, President Cleveland declared (Eberling, _Congressional
Investigation_, p. 258):
“I do not suppose that the public offices of the United States
are regulated or controlled in their relations to either House of
Congress by the fact that they were created by laws enacted by
themselves. It must be that these instrumentalities were created
for the benefit of the people and to answer the general purposes
of government under the Constitution and the laws, and that they
are unencumbered by any lien in favor of either branch of Congress
growing out of their construction, and unembarrassed by any
obligation to the Senate as the price of their creation.”
PRESIDENT THEODORE ROOSEVELT’S ADMINISTRATION
In 1909, during the administration of President Theodore Roosevelt,
the question of the right of the President to exercise complete
direction and control over heads of executive departments was
raised again. At that time the Senate passed a resolution
directing the Attorney General to inform the Senate whether certain
legal proceedings had been instituted against the United States
Steel Corporation, and if not, the reasons for its nonaction.
Request was also made for any opinion of the Attorney General, if
one was written. President Theodore Roosevelt replied refusing to
honor this request upon the ground that “Heads of the Executive
Departments are subject to the Constitution, and to the laws passed
by the Congress in pursuance of the Constitution, and to the
directions of the President of the United States, but to no other
direction whatever” (_Congressional Record_, vol. 43, pt. 1, 60th
Cong., 2d sess., pp. 527-28).
When the Senate was unable to get the documents from the Attorney
General, it summoned Herbert K. Smith, the Head of the Bureau of
Corporations, and requested the papers and documents on penalty
of imprisonment for contempt. Mr. Smith reported the request to
the President, who directed him to turn over to the President
all the papers in the case “so that I could assist the Senate in
the prosecution of its investigation.” President Roosevelt then
informed Senator Clark of the Judiciary Committee what had been
done, that he had the papers and the only way the Senate could
get them was through his impeachment. President Roosevelt also
explained that some of the facts were given to the Government under
the seal of secrecy and cannot be divulged, “and I will see to it
that the word of this Government to the individual is kept sacred.”
(Corwin, _The President: Office and Powers_, pp. 281, 428; Abbott,
_The Letters of Archie Butt, Personal Aid to President Roosevelt_,
pp. 305-6.)
PRESIDENT COOLIDGE’S ADMINISTRATION
In 1924, during the administration of President Coolidge, the latter
objected to the action of a special investigating committee appointed
by the Senate to investigate the Bureau of Internal Revenue. Request
was made by the committee for a list of the companies in which the
Secretary of the Treasury was alleged to be interested for the
purpose of investigating their tax returns. Calling this exercise of
power an unwarranted intrusion, President Coolidge said:
“Whatever may be necessary for the information of the Senate or any
of its committees in order to better enable them to perform their
legislative or other constitutional functions ought always to be
furnished willingly and expeditiously by any department. But it is
recognized both by law and custom that there is certain confidential
information which it would be detrimental to the public service to
reveal” (68th Cong., 1st sess., _Record_, April 11, 1924, p. 6087).
PRESIDENT HOOVER’S ADMINISTRATION
A similar question arose in 1930 during the administration of
President Hoover. Secretary of State Stimson refused to disclose
to the Chairman of the Senate Foreign Relations Committee certain
confidential telegrams and letters leading up to the London
Conference and the London Treaty. The Committee asserted its
right to have full and free access to all records touching the
negotiations of the treaty, basing its right on the constitutional
prerogative of the Senate in the treaty-making process. In his
message to the Senate, President Hoover pointed out that there were
a great many informal statements and reports which were given to
the Government in confidence. The Executive was under a duty, in
order to maintain amicable relations with other nations, not to
publicize all the negotiations and statements which went into the
making of the treaty. He further declared that the Executive must
not be guilty of a breach of trust, nor violate the invariable
practice of nations. “In view of this, I believe that to further
comply with the above resolution would be incompatible with the
public interest” (S. Doc. No. 216, 71st Cong., special sess., p. 2).
PRESIDENT FRANKLIN D. ROOSEVELT’S ADMINISTRATION
The position was followed during the administration of President
Franklin D. Roosevelt. There were many instances in which the
President and his Executive heads refused to make available certain
information to Congress the disclosure of which was deemed to be
confidential or contrary to the public interest. Merely a few need
be cited.
1. Federal Bureau of Investigation records and reports were refused
to congressional committees, in the public interest (40 Op. A. G.
No. 8, April 30, 1941).
2. The Director of the Federal Bureau of Investigation refused to
give testimony or to exhibit a copy of the President’s directive
requiring him, in the interests of national security, to refrain
from testifying or from disclosing the contents of the Bureau’s
reports and activities. (_Hearings_, vol. 2, House, 78th Cong.
Select Committee to Investigate the Federal Communications
Commission, 1944, p. 2337.)
3. Communications between the President and the heads of
departments were held to be confidential and privileged and not
subject to inquiry by a committee of one of the Houses of Congress.
(Letter dated January 22, 1944, signed Francis Biddle, Attorney
General to Select Committee, etc.)
4. The Director of the Bureau of the Budget refused to testify and
to produce the Bureau’s files, pursuant to subpoena which had been
served upon him, because the President had instructed him not to
make public the records of the Bureau due to their confidential
nature. Public interest was again invoked to prevent disclosure.
(Reliance placed on Attorney General’s Opinion in 40 Op. A. G. No.
8, April 30, 1941.)
5. The Secretaries of War and Navy were directed not to deliver
documents which the committee had requested, on grounds of
public interest. The Secretaries, in their own judgment, refused
permission to Army and Navy officers to appear and testify because
they felt that it would be contrary to the public interests.
(_Hearings_, Select Committee to Investigate the Federal
Communications Commission, vol. 1, pp. 46, 48-68.)
PRESIDENT TRUMAN’S ADMINISTRATION
During the Truman administration also the President adhered to
the traditional Executive view that the President’s discretion
must govern the surrender of Executive files. Some of the major
incidents during the administration of President Truman in which
information, records, and files were denied to Congressional
Committees were as follows:
Date Type of Document Refused
Mar. 4, 1948 FBI letter-report on Dr. Condon, Director of National
Bureau of Standards, refused by Secretary of
Commerce.
Mar. 15, 1948 President issued directive forbidding all Executive
departments and agencies to furnish information or
reports concerning loyalty of their employees to
any court or committee of Congress, unless
President approves.
March 1948 Dr. John R. Steelman, Confidential Adviser to the
President, refused to appear before Committee on
Education and Labor of the House, following the
service of two subpoenas upon him. President
directed him not to appear.
Aug. 5, 1948 Attorney General wrote Senator Ferguson, Chairman
of Senate Investigations Subcommittee, that he
would not furnish letters, memoranda, and other
notices which the Justice Department had furnished
to other government agencies concerning W. W.
Remington.
Feb. 22, 1950 Senate Res. 231 directing Senate Subcommittee to
procure State Department loyalty files was met with
President Truman’s refusal, following vigorous
opposition of J. Edgar Hoover.
Mar. 27, 1950 Attorney General and Director of FBI appeared before
Senate Subcommittee. Mr. Hoovers historic statement
of reasons for refusing to furnish raw files
approved by Attorney General.
May 16, 1951 General Bradley refused to divulge conversations
between President and his advisers to combined
Senate Foreign Relations and Armed Services
Committees.
Jan. 31, 1952 President Truman directed Secretary of State to
refuse to Senate Internal Security Subcommittee
the reports and views of foreign service officers.
Apr. 22, 1952 Acting Attorney General Perlman laid down procedure
for complying with requests for inspection of
Department of Justice files by Committee on
Judiciary:
Requests on open cases would not be honored.
Status report will be furnished.
As to closed cases, files would be made
available. All FBI reports and confidential
information would not be made available.
As to personnel files, they are never
disclosed.
Apr. 3, 1952 President Truman instructed Secretary of State to
withhold from Senate Appropriations Subcommittee
files on loyalty and security investigations of
employees—policy to apply to all Executive
agencies. The names of individuals determined to
be security risks would not be divulged. The voting
record of members of an agency loyalty board would
not be divulged.
Thus, you can see that the Presidents of the United States have
withheld information of Executive departments or agencies whenever
it was found that the information sought was confidential or that
its disclosure would be incompatible with the public interest or
jeopardize the safety of the Nation. The courts too have held that
the question whether the production of the papers was contrary to
the public interest was a matter for the Executive to determine.
By keeping the lines which separate and divide the three great
branches of our Government clearly defined, no one branch has been
able to encroach upon the powers of the other.
Upon this firm principle our country’s strength, liberty, and
democratic form of government will continue to endure.
APPENDIX B
_Letters Regarding the Presidential Letter of May 17, 1954_
_October 9, 1956_
Hon. DWIGHT D. EISENHOWER,
_The President of the United States,
The White House, Washington, D.C._
DEAR MR. PRESIDENT: At your press conference on Thursday, September
27, 1956, you were asked whether your letter of May 17, 1954,
to Secretary of Defense Charles E. Wilson was being misused as
authority to restrict information from the public.
This question was posed by Mr. Clark Mollenhoff of the Des Moines
Register and Tribune.
You stated that if Mr. Mollenhoff would put the question in
writing—which I understand he has done—it will be answered.
This particular letter and its misuse by a number of Federal
departments and agencies has been a great concern to the Special
Subcommittee on Government Information. Although the letter, and
the accompanying memorandum from the Attorney General, granted
authority to one particular agency to refuse information to a
specific committee of Congress in a single instance, 19 departments
and agencies have cited the letter as authority to refuse
information to the public or the Congress.
This occurred in agency answers to the subcommittee’s questionnaire
of November 7, 1955, on information practices and policies as well
as during subcommittee hearings with executive officials.
Enclosed is an intermediate report, adopted unanimously by the
House Government Operations Committee, on the subcommittee’s study
of restrictions on information. The problem of misuse of the May
17, 1954, letter is discussed on page 90 and at other points.
When the answer to Mr. Mollenhoff’s question has been prepared and
transmitted to him, the subcommittee would appreciate receiving
copies of it and any other comments you have on the matter.
Respectfully,
JOHN E. MOSS, _Chairman_
THE WHITE HOUSE,
_Washington, October 17, 1956_.
Hon. JOHN E. MOSS,
_House of Representatives, Washington, D.C._
DEAR MR. MOSS: This will acknowledge your October 9 letter to the
President asking that you be supplied with copies of the answer
to a question submitted by Mr. Clark Mollenhoff of the Des Moines
Register and Tribune.
The answer to this question has not yet been given. However, as
soon as it is, we will get in touch with you.
Sincerely,
GERALD D. MORGAN,
_Special Counsel to the President_
_October 26, 1956_
Mr. CLARK R. MOLLENHOFF,
_Des Moines Register and Tribune,
National Press Building, Washington, D.C._
DEAR CLARK: At the press conference on September 27, 1956,
you asked the President whether “all employees of the Federal
Government, at their own discretion, can determine whether they
will testify or will not testify before congressional committees
when there is no security problem involved.”
In the President’s letter of May 17, 1954, to Secretary Wilson,
the President set forth the general principles that are to govern
all employees in the executive branch concerning their testimony,
or the production of documents, relating to their conversations or
communications with, or their advice to, each other on official
matters. In his press conference of July 6, 1955, the President
further amplified the principles set forth in this letter as
follows:
“If anybody in an official position of this Government does
anything which is an official act, and submits it either in the
form of recommendation or anything else, that is properly a matter
for investigation if Congress so chooses, provided the national
security is not involved.
“But when it comes to the conversations that take place between
any responsible official and his advisers, or exchange of mere
little slips, of this or that, expressing personal opinions on the
most confidential basis, those are not subject to investigation by
anybody. And if they are it will wreck the Government.”
In so writing to Secretary Wilson, and in further amplifying these
principles, the President was exercising a right, which is his, and
his alone, to determine what action is necessary to maintain the
proper separation of powers between the executive and legislative
branches of the Government. In the orderly administration of the
Government, the head of each executive agency directs the manner
in which these principles are enforced.
The underlying reasons for these principles are set forth in the
President’s letter of May 17, 1954. It is essential to efficient
and effective administration that employees of the executive branch
be in a position to be completely candid in advising each other on
official matters. It is essential, if channels of information are
to be kept open, that confidences among employees should not be
breached.
It will continue to be this administration’s policy to keep the
Congress and the people fully informed of what is being done in
the executive branch. An employee is not free merely to exercise
his own discretion but in the final analysis information will be
withheld only when the President or agency heads acting under the
President’s authority or instruction determine it is contrary to
the public interest to disclose it.
All of the above, of course, is subject to the Executive order
dealing with the classification of information in the interest
of security, and to the various statutes and regulations of the
department and agencies relating to information to be held in
confidence.
I hope this answers your inquiry.
Sincerely,
GERALD D. MORGAN,
_Special Counsel to the President_
APPENDIX C
_Correspondence on the Right of Access to Information by the General
Accounting Office_
_November 12, 1958_
Hon. DWIGHT D. EISENHOWER,
_President of the United States,
Washington, D.C._
DEAR MR. PRESIDENT: I just returned to Washington for a hearing
of the Government Information Subcommittee. The subcommittee, I
understand, will inquire into the matter of General Accounting
Office access to Air Force Inspector General’s reports. In that
context, my attention has been directed to your press conference
comments of November 5, and to some newspaper speculation about
those comments.
The text of your remarks to which I refer is as follows:
“Q. (Clark R. Mollenhoff, Des Moines Register). Mr. President, you
have mentioned the spending in the Defense Department here as one
of the important issues, and the General Accounting Office, which
is the watchdog on frauds and extravagance in the various agencies,
has been barred from reports over in the Air Force and the Defense
Department generally, and on this they claim that they have
authority from you to withhold reports any time it is ‘inexpedient
to do so.’
“I wonder if you have given that authority and if you feel that
the GAO should have a full rein to go in and investigate all
indications of fraud and extravagance.
“The PRESIDENT. You are obviously talking about some special thing
that I would have to study before I could make—give an answer.
“I have stated this time and again: I believe that every
investigating committee of the Congress, every auditing office,
like the GAO, should always have an opportunity to see official
records if the security of our country is not involved.
“Q. (Clark R. Mollenhoff, Des Moines Register). Well, they claim
this, Mr. President, under executive privilege.
“The PRESIDENT. No, that’s all I have to say—I told you that is all
I had to say for the moment.”
While this question-and-answer exchange did not identify Inspector
General reports, and while you did preface your comment by saying
this obviously referred to some special thing you would have to
study before giving an answer, I would nevertheless like to ask
this: Did you mean to imply by your comments that the complete text
of Inspector General reports, including recommendations, be made
available to Congress and the General Accounting Office?
Respectfully,
CLARE E. HOFFMAN
THE WHITE HOUSE,
_Washington, November 12, 1958._
Hon. CLARE E. HOFFMAN,
_House of Representatives, Washington, D.C._
DEAR MR. HOFFMAN: Thank you for your letter inquiring about
comments in my November 5 press conference.
I believe, of course, that the public, the Congress, and such
auditing units as the General Accounting Office should have
all the information departments and agencies can properly make
available. However, the public interest also demands order and
efficiency in the operation of these departments and agencies.
And in my judgment the public interest is not necessarily served
by divulging the advice, suggestions, or recommendations which
subordinate employees periodically make to their superiors. In this
connection, recommendations of inspectors general have been a most
useful advisory tool in administering the military departments;
and historically, recommendations and other advisory matter in
such reports have not been released. I think this practice is a
correct one, and is in the best interest of the Nation. At the
same time, I want to add that the facts are distinct from advice
and recommendations in these reports. It is my understanding that
all the facts developed in the inspector general’s report to which
you refer are being made available at the request of the General
Accounting Office.
Sincerely,
DWIGHT D. EISENHOWER
UNITED STATES GENERAL ACCOUNTING OFFICE,
OFFICE OF GENERAL COUNSEL,
_Washington, D.C., November 4, 1958_.
MEMORANDUM ON RIGHT OF THE COMPTROLLER GENERAL TO ACCESS TO A
REPORT OF THE INSPECTOR GENERAL OF THE AIR FORCE ENTITLED “SURVEY
OF MANAGEMENT OF THE BALLISTIC MISSILES PROGRAM”
The basic statutory authority of the Comptroller General for access
to records of departments and agencies is set forth in section 313
of the Budget and Accounting Act, 1921 (31 U.S.C. 54). Section 313
provides:
“_All departments and establishments shall furnish to the
Comptroller General such information_ regarding the powers, duties,
activities, organization, financial transactions, and methods of
business of their respective offices _as he may_ from time to time
_require of them_; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine _any_ books, documents, papers, or records of
_any_ such department or establishment. The authority contained in
this section shall not be applicable to expenditures made under the
provisions of section 291 of the Revised Statutes.”
It will be noted that the only exception in section 313 relates to
expenditures made under section 291, Revised Statutes (31 U.S.C.
107), which authorizes the Secretary of State to account for
certain confidential expenditures in connection with intercourse
or treaties with foreign nations by certificate where, in his
judgment, he may think it advisable not to specify the details
of such expenditure. Since that is the only exception stated and
following the legal maxim that the specific setting forth of one
type of exception precludes others from arising, it seems clear
that the Comptroller General may require, and the departments are
required to furnish, documents, etc., as to any other transaction
or activity. Also, the language of section 313 itself [except as
to the expenditures under 291 R. S.] in requiring the departments
to furnish such information as the Comptroller General “may
require of them” and its requirement that he be _given access to
any_ documents of the departments, clearly gives him access to
_all_ such documentation. If he has access to _any_ document, he
has access to _all_. The legislative background of the Budget and
Accounting Act, 1921, makes no qualification as to what records
can be required; the provision itself apparently being considered
sufficiently specific. The legislative reports do bring out that
one of the principal functions of the Comptroller General is to
enable the Congress to be kept advised as to expenditures of
the Government, and that the Comptroller General is expected to
criticize extravagance, duplication, and inefficiency in executive
departments. There is no doubt, in passing the act, the Congress
did not intend that the executive agencies could, or would,
withhold any books, documents, papers, or records needed by the
Comptroller General. Otherwise, the very purpose of the act would
be nullified.
The authority and duty of the Comptroller General was amplified
by section 206 of the Legislative Reorganization Act of 1946 (31
U.S.C. 60), which authorized and directed him to make expenditure
analyses of each agency in the executive branch of the Government
which “will enable Congress to determine whether public funds have
been economically and efficiently administered and expended” and
to make reports thereon from time to time to the Committees on
Government Operations, and Appropriations and other committees
having jurisdiction over legislation relating to the operation
of the agencies involved. The work of the Comptroller General,
together with the activities of the Committees on Government
Operations, were to serve as a check on the economy and efficiency
of administrative management. See pages 6 and 7, Senate Report No.
1400 on the Legislative Reorganization Act of 1946.
The Congress has also directed that the Comptroller General in
performing his duties give full consideration to the administrative
reports and controls of the departments and agencies. The
Government Corporation Control Act specifically provides in
section 301 (a) (31 U.S.C. 866), “That in making the audits ...
the Comptroller General shall, to the fullest extent deemed by him
to be practicable, utilize reports of examination of Government
corporations made by a supervising administrative agency pursuant
to law.” The legislative reports on that act, Senate Report 694,
page 10, contains the following significant language:
“The audit provisions are intended to give the Congress the
independent audit reports of its agent, the Comptroller General,
as to the operations and financial condition of every Government
corporation in which the Government has a capital interest.... If
the audit by the Comptroller General is to be a truly independent
audit, he must not be restricted in such a way as to prevent
him from examining into and reporting the transactions of any
Government corporation to the extent deemed by him to be necessary.
“The Comptroller General has stated that in making his audits he
will give full consideration to the effectiveness of the existing
systems of internal accounts, procedures, and controls and of
external examinations by an administrative supervisory agency.
The bill includes a specific provision requiring the Comptroller
General in making his audits to utilize, to the fullest extent
deemed by him to be practicable, reports of examinations of
Government corporations by a supervising administrative agency
pursuant to law.”
The Budget and Accounting Procedures Act of 1950 requires each
executive agency to maintain systems of accounting and internal
control and provides, in section 117 (a) (31 U.S.C. 67 [a]), that
the Comptroller General in determining auditing procedures and
the extent of examination to be given accounts and vouchers give
consideration to “the effectiveness of accounting organizations and
systems, internal audit and control, and related administrative
practices of the respective agencies.”
The Comptroller General is required to audit the activities of the
executive departments and agencies; to make expenditure analyses
to determine whether funds have economically been expended; and to
give consideration to the departments’ internal audit and control
and related administrative practices. To perform these duties he is
given the clear statutory authority to require information of the
departments and agencies regarding their organization, activities,
and methods of business, coupled with the right to access to _any_
books, documents, papers, or records of any such establishment
(except as to the confidential State Department funds).
There have been no court cases construing the statutes giving
the Comptroller General access to records. However, in 1925, the
Attorney General in an opinion to the Secretary of War (34 Op.
Atty. Gen. 446), concerning a request by the Comptroller General
for information relative to an award of a contract showing that
the lowest bid was accepted, or if otherwise, a statement for the
reasons for accepting other than the lowest bid, advised, in part,
as follows:
“It will be observed that the Comptroller General states that this
requirement is made necessary in order that a satisfactory audit
may be made. What papers or data he should have to make such an
audit would seem to be a matter solely for his determination.
Moreover, section 313 of the Budget and Accounting Act provides (p.
26):
“All departments and establishments shall furnish to the
Comptroller General such information regarding the powers, duties,
activities, organization, financial transactions, and methods
of business of their respective offices as he may from time to
time require of them; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine any books, documents, papers, or records of any
such department or establishment....”
Questions as to whether the General Accounting Office has a right
to access to records claimed to be confidential for security
or other reasons have arisen from time to time and the General
Accounting Office has always taken the position that it has the
right to the information, even though certain provisions of law
relating to disclosure might be applicable to it.
The General Accounting Office recognizes that certain of the
functions of the inspectors general, such as criminal and personnel
investigations, are of a confidential nature and it will normally
accept summaries of facts contained in such reports to the
extent they are needed in connection with its work. However, the
inspectors general also have as a part of their respective missions
and duties responsibility for conducting inspections, surveys,
and examinations of the effectiveness of operations and overall
efficiency of a command, installation, or activity. These functions
may be performed on a periodic or special basis as directed by
competent authority. The performance of these functions constitutes
an important part of the process of management evaluations and
internal reviews as distinguished from criminal or personnel
investigations. They provide officials and appropriate personnel
of authority with an independent appraisal of the effectiveness of
operations and overall efficiency. Moreover, a very considerable
part of the inspections and reviews made by the inspectors general
involve reviews of procedures and policies and as such are an
important segment of the internal reviews and control which the
General Accounting Office, under section 117 (a) of the Budget
and Accounting Procedures Act of 1950 is required to consider and
recognize in determining the audit procedures to be followed in its
reviews.
The scope of inspection and survey programs of the inspectors
general is similar in character to much of the work the General
Accounting Office has scheduled in requirements, procurement,
supply management, and research and development areas. The
programs of the Deputy Inspector General for Inspection of the
Air Force covering the period July 1, to December 31, 1958,
include (1) a survey of Air Force procurement methods (advertising
versus negotiation); (2) a survey of procurement quantitative
and qualitative program changes; (3) a survey of procurement of
commercial communications and utility services; (4) a survey of
contract cost overruns; (5) a survey of maintenance programs;
(6) a survey of modification programs; (7) a survey of the
application of electronic data processing systems and other like
subjects. All of these subjects represent internal and management
evaluations which would clearly be a part of “internal audit and
control” within the meaning of section 117 (a) of the Accounting
and Auditing Act of 1950. It is essential that such reports be made
available to the General Accounting Office in order that it can
evaluate the effectiveness of the department’s system of internal
control and to preclude unwarranted and unnecessary duplication
of effort in the internal audit and the independent review made
by this Office. The Air Force Inspector General’s report on the
ballistic missiles program clearly falls within the term “internal
audit and control.”
The Secretary of the Air Force in refusing the Comptroller General
access to the Inspector General’s report on the ballistic missiles
program stated that the Inspector General’s reports are prepared
solely for the use of responsible officials within the Air Force,
and that the objective of self-criticism can be obtained only if
the Inspector General’s organization has the assurance that its
reports will, without exception, be kept within the Department.
The Secretary also stated that the report in question concerned
the internal management of the Department, and was prepared solely
for the benefit and use of those officers and employees of the
Department who are responsible for its administration, and that
the release of such reports to persons outside the Department
would have a serious effect on the effective administration of
the Department. The Secretary concluded that these considerations
compelled him to conclude that the public interest would best be
served by not releasing the report.
It is our understanding that the position of the Secretary is
premised on paragraph 151 (b) (3) of the Manual for Courts Martial
(1951) which was prescribed by the President on February 8, 1951,
through Executive Order 10214, pursuant to the act of May 5,
1950 (64 Stat. 107), and on the general basis that the heads of
executive departments have the right to withhold information or
papers which they deem confidential, in the public interest.
The Manual for Courts Martial, 1951, Executive Order 10214, dated
February 8, 1951, was issued pursuant to article 36 of the act of
May 5, 1950 (64 Stat. 120). Article 36 (a) provides:
“The procedure, including modes of proof, in cases before
courts-martial, courts of inquiry, military commissions, and
other military tribunals may be prescribed by the President by
regulations which shall, so far as he deems practicable, apply the
principles of law and the rules of evidence generally recognized in
the trial of criminal cases in the United States district courts,
but which shall not be contrary or inconsistent with this code.”
Article 151 (b) (3) of the Manual for Courts Martial provides:
“The Inspectors General of the various armed forces, and their
assistants, are confidential agents of the Secretaries of the
military or executive departments concerned, or of the military
commander on whose staff they may be serving. Their investigations
are privileged unless a different procedure is prescribed by
the authority ordering the investigation. Reports of such
investigations and their accompanying testimony and exhibits are
likewise privileged, and there is no authority of law or practice
requiring that copies thereof be furnished to any person other than
the authority ordering the investigation or superior authority.
However, when application is made to the authority by court-martial
certain testimony, or an exhibit, accompanying a report of
investigation, which testimony or exhibit has become material
in a trial (to show an inconsistent statement of a witness, for
example), he should ordinarily approve such application unless the
testimony or exhibit requested contains a state secret or unless
in the exercise of a sound discretion he is of the opinion that
it would be contrary to public policy to divulge the information
desired.
“In certain cases, it may become necessary to introduce evidence
of a highly confidential or secret nature, as when an accused is
on trial for having unlawfully communicated information of such a
nature to persons not entitled thereto. In a case of this type, the
court should take adequate precautions to insure that no greater
dissemination of such evidence occurs than the necessities of the
trial require. The courtroom should be cleared of spectators while
such evidence is being received or commented upon, and all persons
whose duties require them to remain should be warned that they are
not to communicate such confidential or secret information....”
Since the Manual for Courts Martial was issued pursuant to the
authority of the President to prescribe procedure for such trials,
and Article 151 (b) MCM by its language is addressed to procedures
of such courts, it obviously does not affect access by the General
Accounting Office to Inspector Generals reports determined by the
Comptroller General to be necessary to the performance of his work,
particularly where the report requested is not one dealing with
personnel or criminal investigations.
Air Force Regulation 120-3, paragraph 9, October 11, 1954, and
similar regulations provide:
“Disclosure of or access to matters pertinent to an inquiry or
investigation will be limited to persons whose official duties
require such knowledge. The Manual for Courts Martial, 1951, states
that inspector-general investigations are privileged information.
The same privileged status applies to inquiries and investigations
conducted under this Regulation. Also paragraph 3, AFR 190-16,
29 July 1954, excludes investigative reports and reports of
inspectors general and base inspectors from release to the public
as information. Reports by investigators will not be released or
disclosed outside the Air Force without approval of the Secretary
of the Air Force.”
Presumably these regulations were issued pursuant to section 161,
Revised Statutes, title 5, United States Code, section 22, or
similar authority, authorizing the head of a department to issue
regulations, _not inconsistent with law_, for the conduct of his
department and the custody and use of its records. Since under
section 313 of the Budget and Accounting Act the Secretary is
required to give the Comptroller General access to the records, any
construction of the Air Force regulation denying the Comptroller
General access is improper, and the regulation to that extent,
being inconsistent with law, has no effect.
With reference to the right or privilege of the head of the
“Executive” branch of the Government to refuse to the legislative
and judicial branch of the Government free access to records in the
custody of the executive departments, support for such claim of
right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty.
Gen. 45, and cases referred to therein.
Assuming, arguendo, that such right or privilege does exist, we
do not believe it warrants an executive agency denying to the
Comptroller General information or access to its documents in view
of section 313 of the Budget and Accounting Act which clearly
provides that “all departments ... shall furnish ... information
...” required by the Comptroller General and that he shall have
“access to and the right to examine any ... documents of any such
department....” The opinion of the Attorney General in 1925, 34
Op. Atty. Gen. 446, discussed earlier, clearly recognizes the
prerogative of the Comptroller General to determine what papers he
should have to enable him properly to perform his audits and that
the departments are required to furnish them.
The right or privilege asserted from time to time by the executive
branch was considered in a study by the staff of the House
Committee on Government Operations entitled “The right of Congress
to obtain information from the Executive and from other agencies
of the Federal Government,” committee print dated May 3, 1956, and
in great detail by the House Committee on Government Operations
in connection with Public Law 85-619 approved August 12, 1958, as
were the court cases cited and relied upon by the Attorney General.
See House Report No. 1461, 85th Congress, 2d session. Also, there
was there considered a line of later decisions starting with
_McGrain_ v. _Daugherty_, 273 U. S. 135 (1927) which upheld the
power of Congress to require information sought for legislative
purposes. None of the cases relied upon by the Attorney General
involved demands by the Congress for information from the executive
agencies. This was considered in a study on the matter furnished
the committee by the Attorney General. See page 2938 of the
printed hearings before a subcommittee of the House Committee on
Government Operations on June 20 and 22, 1956, on “Availability of
Information from Federal Departments and Agencies” wherein after
citing and quoting from numerous court decisions he stated “None of
the foregoing cases involved the refusal by a head of department to
obey a call for papers or information. There has been no Supreme
Court decision dealing squarely with that question.”
As indicated, the precise question of whether the Congress has a
right to obtain information from the Executive which it refuses
to furnish because of its confidential nature has not been the
subject of a court decision. Where information sought by Congress
by an executive department has been refused, the Congress has,
at times, succeeded in bringing sufficient pressure to bear to
obtain the information, or the executive department has, upon
reconsideration, relented and furnished it. At other times the
Congress has not pressed the matter—possibly because of its feeling
that the President was in such a position that he should know
whether the information should be withheld, or that the Congress
had no machinery to force his compliance—and the information was
not furnished. But, regardless of whether such right or privilege
exists, it is clear that the Congress in passing on future
appropriations and other legislation has a right to know whether
the funds appropriated are being properly and efficiently used for
the purposes it intended and that any information available in that
regard should be available to the Comptroller General.
In view of the above, and in the absence of any judicial
determination specifically dealing with the rights of the
Comptroller General under section 313, we do not believe that the
position of the Secretary of the Air Force that the report in
question can be legally withheld is proper.
ROBERT F. KELLER, _General Counsel_
_Letter from the Attorney General to the President_
_December 22, 1960_
The PRESIDENT,
_The White House_.
DEAR MR. PRESIDENT: You have requested my advice whether, under
the Constitution and laws of the United States, you have the
authority as Chief Executive to issue the two attached directives
to, respectively, the Secretary of State and the Secretary of the
Treasury, concerning the availability of mutual security program
funds for the expenses of the Office of the Inspector General and
Comptroller established under section 533A of the Mutual Security
Act of 1954, as amended.
In an opinion I have furnished you at your request, I have
advised you of my conclusions that: First, the view taken by
the Comptroller General in his letter of December 8, 1960, that
the proviso contained in section 533A(d) of the Mutual Security
Act of 1954, as amended, has operated to cut off the funds here
in question, is erroneous. Second, that if this view of the
Comptroller General as to the meaning of the proviso is correct,
the proviso is unconstitutional. Third, that therefore, despite the
Comptroller General’s letters of December 8, 1960, and December 13,
1960, these mutual security program funds continue to be available
as heretofore for the expenses of the Office of the Inspector
General and Comptroller. The reasons for these conclusions are set
forth at length in my opinion.
Your directives to the Secretaries of State and the Treasury are,
you advise me, in your judgment desirable to insure that mutual
security program funds will be available until the end of your term
of office on January 20, 1961, as heretofore for the expenses of
the Office of the Inspector General and Comptroller. Under these
circumstances, I am of the opinion that you, as Chief Executive,
have the authority to issue the directives.
Respectfully,
WILLIAM P. ROGERS,
_Attorney General_
_Opinion of the Attorney General of the United States Dated December
19, 1960_
MUTUAL SECURITY PROGRAM—CUTOFF OF FUNDS FROM OFFICE OF INSPECTOR
GENERAL AND COMPTROLLER
Section 533A(d) of the Mutual Security Act of 1954 added by
section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253),
which directs that the expenses of the Office of the Inspector
General and Comptroller with respect to programs under the Mutual
Security Act be charged to the appropriations made to carry out
such programs, _provided_ that all documents, reports, and other
materials relating to the operations and activities of that Office
are furnished upon request to the General Accounting Office, or
to any appropriate congressional committee or duly authorized
subcommittee, does not authorize the funds of the Office of the
Inspector General and Comptroller to be cut off because of the
failure of the State Department to furnish certain documents
relating to that Office to a congressional subcommittee, if the
President has issued a certificate pursuant to section 101(d) of
the Mutual Security and Related Agencies Appropriation Act, 1961
(74 Stat. 778), to the effect that he has forbidden the production
of those documents and states his reasons for so doing. A contrary
conclusion reached by the Comptroller General is incorrect, and,
therefore, funds continue to be available as heretofore for the
Office of the Inspector General and Comptroller.
The proviso in section 533A(d) does not expressly authorize the
funds of the Office of the Inspector General and Comptroller to
be cut off, and such a drastic consequence should not lightly be
inferred from ambiguous statutory language. Other provisions of the
Mutual Security Act of 1959, the Mutual Security Act of 1960 (74
Stat. 134), the Mutual Security and Related Agencies Appropriation
Act, 1960 (73 Stat. 717), and the Mutual Security and Related
Agencies Appropriation Act, 1961, indicate a congressional purpose
not to compel the disclosure of information concerning the mutual
security program which the President considers to be incompatible
with the security of the United States. Section 533A(d) should be
read in the light of this purpose.
Section 533A(d) has been suspended by section 101(d) of the
Mutual Security and Related Agencies Appropriation Act, 1961,
which provides that the failure to furnish documents, etc., to
Congress or to the Comptroller General will not result in a cutoff
of appropriated funds if the President certifies that he has
prohibited the production of the documents and states the reasons
for this action.
A construction of the proviso to section 533A(d), requiring funds
for the Office of the Inspector General and Comptroller to be
cut off for failure to supply documents, notwithstanding the
President’s certification, must be avoided because it not only
creates constitutional doubts, but would, if correct, render the
proviso unconstitutional. Congress cannot by direct action compel
the President to furnish to it information the disclosure of which
he considers contrary to the national interest. It cannot achieve
this result indirectly by placing a condition upon the expenditure
of appropriated funds.
APPENDIX D
_Letter from President Kennedy to the Secretary of Defense_
_February 8, 1962_
DEAR MR. SECRETARY: You have brought to my attention the fact
that the Senate’s Special Preparedness Investigating Subcommittee
intends to ask witnesses from your department to give testimony
identifying the names of individuals who made or recommended
changes in specific speeches.
As you know, it has been and will be the consistent policy of
this administration to co-operate fully with the committees of
the Congress with respect to the furnishing of information. In
accordance with this policy, you have made available to the
subcommittee 1500 speeches with marginal notes, hundreds of
other documents and the names of the fourteen individual speech
reviewers, eleven of whom are military officers. You have also made
available the fullest possible background information about each of
these men, whose record of service and devotion to the country is
unquestioned in every case; and you have permitted the committee
staff to interview all witnesses requested and to conduct such
interviews outside the presence of any departmental representative.
Finally, you have identified the departmental source of each
suggested change, and offered to furnish in writing an explanation
of each such change, and the policy or guideline under which it was
made.
Your statement that these changes are your responsibility, that
they were made under your policies and guidelines and those of
this administration and that you would be willing to explain
them in detail, is both fitting and accurate, and offers to the
subcommittee all the information properly needed for purposes
of its current inquiry. It is equally clear that it would not
be possible for you to maintain an orderly department, and
receive the candid advice and loyal respect of your subordinates,
if they—instead of you and your senior associates—are to be
individually answerable to the Congress as well as to you for their
internal acts and advice.
For these reasons, and in accordance with the precedents on
separation of powers established by my predecessors from the
first to the last, I have concluded that it would be contrary
to the public interest to make available any information which
would enable the subcommittee to identify and hold accountable
any individual with respect to any particular speech that he has
reviewed. I therefore direct you, and all personnel under the
jurisdiction of your department, not to give any testimony or
produce any documents which would disclose such information; and I
am issuing parallel instructions to the Secretary of State.
The principle which is at stake here cannot be automatically
applied to every request for information. Each case must be judged
on its own merits. But I do not intend to permit subordinate
officials of our career services to bear the brunt of congressional
inquiry into policies which are the responsibilities of their
superiors.
Sincerely yours,
JOHN F. KENNEDY
APPENDIX E
_Executive Privilege Correspondence between President Kennedy and
Congressman John E. Moss_
February 15, 1962
_The Honorable
John F. Kennedy
The President of the United States
The White House
Washington, D.C._
Dear Mr. President:
In your letter of February 8, 1962 to Secretary McNamara
you directed him to refuse certain information to a Senate
Subcommittee. The concluding paragraph of your letter stated:
“The principle which is at stake here cannot be automatically
applied to every request for information. Each case must be
judged on its merits.”
A similar letter from President Eisenhower on May 17, 1954 also
refused information to a Senate Subcommittee, setting forth the
same arguments covered in your letter. President Eisenhower did
not, however, state that future questions of availability of
information to the Congress would have to be answered as they came
up.
I know you are aware of the result of President Eisenhower’s
letter. Time after time Executive Branch employees far down the
administrative line from the President fell back on his letter of
May 17, 1954 as authority to withhold information from the Congress
and the public.
Some of the cases are well known—the Dixon-Yates matter and the
investigation of East-West trade controls, for instance—but many
of the refusals based on President Eisenhower’s letter of May 17,
1954 received no public notice. A report of the House Committee
on Government Operations covering the five years from June, 1955
through June, 1960 lists 44 cases of Executive Branch officials
refusing information on the basis of the principles set forth in
the May 17, 1954 letter.
I am confident that you share my belief that your letter of
February 8, 1962 to Secretary McNamara should not be seized upon
by Executive Branch employees—many of them holding the same
policymaking positions of responsibility they did under the
Eisenhower Administration—as a new claim of authority to withhold
information from the Congress and the public. A Subcommittee staff
study indicates that during the year between the time you took
office and February 8, 1962 the claim of an “executive privilege”
to withhold government information was not used successfully once,
compared to the dozens of times in previous years administrative
employees held up “executive privilege” as a shield against public
and Congressional access to information.
Although your letter of February 8, 1962 stated clearly that
the principle involved could not be applied automatically to
restrict information, this warning received little public notice.
Clarification of this point would, I believe, serve to prevent the
rash of restrictions on government information which followed the
May 17, 1954 letter from President Eisenhower.
Sincerely,
/s/ John E. Moss
Chairman
THE WHITE HOUSE
_Washington_
_March 7, 1962_
Dear Mr. Chairman:
This is in reply to your letter of last month inquiring generally
about the practice this Administration will follow in invoking the
doctrine of executive privilege in withholding certain information
from the Congress.
As your letter indicated, my letter of February 8 to Secretary
McNamara made it perfectly clear that the directive to refuse
to make certain specific information available to a special
subcommittee of the Senate Armed Services Committee was limited
to that specific request and that “each case must be judged on its
merits.”
As you know, this Administration has gone to great lengths to
achieve full co-operation with the Congress in making available to
it all appropriate documents, correspondence and information. That
is the basic policy of this Administration, and it will continue
to be so. Executive privilege can be invoked only by the President
and will not be used without specific Presidential approval.
Your own interest in assuring the widest public accessibility
to governmental information is, of course, well known, and I
can assure you this Administration will continue to co-operate
with your subcommittee and the entire Congress in achieving this
objective.
Sincerely,
/s/ JOHN F. KENNEDY
Honorable John E. Moss
Chairman
Special Government Information
Subcommittee of the Committee
on Government Operations
House of Representatives
Washington, D.C.
Transcriber’s Notes
pg 27 Changed: political figures organized a constuction
to: political figures organized a construction
pg 57 Changed: records or testify even when suppoenaed
to: records or testify even when subpoenaed
pg 81 Changed: effective administration that employes
to: effective administration that employees
pg 164 Changed: and Hardy decided to to try
to: and Hardy decided to try
pg 238 Changed: executive privilege in withholdng
to: executive privilege in withholding
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