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.