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.

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