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.