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.