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.