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.