Defiance to the End, Above the Law
From the investigation of the aid program in Laos, Representative
Porter Hardy and his subcommittee staff moved on to the aid programs
in Latin America. The subcommittee had examined some Latin-American
aid programs as early as 1955 and unearthed several deficiencies. But
the Eisenhower administration had claimed that the shortcomings were
due largely to the newness of the programs and suggested that the
subcommittee examine them again five years later.
The five years had now elapsed, and on April 28, 1960, Chairman
Hardy notified Secretary of State Christian Herter and ICA Director
Riddleberger that he was initiating an investigation of the aid
programs to Brazil, Uruguay, Argentina, Chile, Bolivia, Peru, and
Colombia.
Several new laws were on the books to facilitate the investigation.
The 1959 law establishing the office of Inspector General and
Comptroller (OIGC) in the State Department provided that:
“All documents, papers, communications, audits, reviews, findings,
recommendations, reports, and other material which relate to the
operation or activities of the Office of Inspector General and
Comptroller shall be furnished the General Accounting Office and to
any committee of the Congress, or any duly authorized subcommittee
thereof.”
The Congress in 1960 amended the Mutual Security Act providing the
GAO could shut off funds to the OIGC if that agency did not furnish
records requested in a reasonable time.
Chairman Hardy’s staff had also called his attention to another
law (5 U.S.C. 105 [a]) which provided that every department shall,
upon request of the Government Operations Committee, “furnish any
information requested of it relating to any matters within the
jurisdiction of said committee.”
Added to these laws, and the previously mentioned Budgeting and
Accounting Act of 1921, was the fact that the State Department was
preparing to ask Congress for more money for aid to Latin America.
The stage was legally and psychologically well set for co-operation.
And Chairman Hardy was indeed advised that he would receive full
co-operation. It never came. When his first requests for files on the
Bolivia program produced no results in six weeks, Hardy notified the
State Department and ICA that hearings would begin on the information
policy on June 28, 1960.
The hearings revealed that the State Department had constructed an
involved thirteen-step routine for clearing papers for Congress,
and the papers Hardy requested simply had not been cleared. Eric H.
Hager, legal adviser of the Department of State, identified himself
as the man responsible for the new system.
It was found that in one instance it took six weeks for one
subcommittee request to clear eight of the thirteen steps. When
Chairman Hardy tried to find out what had happened to the request for
documents, he learned that the request and the documents were resting
in the “in box” in the Office of the Assistant Secretary of State
for Congressional Relations. The papers had been gathering dust in
the box for two weeks and were only moved when the State Department
started to prepare for the hearing.
In the report on the hearings, Hardy’s subcommittee explained the
need for original documents as “the best evidence available” on the
internal operations of ICA.
“It has been the policy and practice of the subcommittee, in order to
insure accurate reporting of these complex operations, to support its
findings with documentary corroboration from files of the executive
agencies,” the report stated.
“The subcommittee has sought to obtain the facts from the documents
and records ... as they are prepared in the ordinary course of doing
business, rather than to rely upon oral testimony or upon secondary
documents prepared especially for the subcommittee’s consideration.”
The report scored “executive privilege” as a “nebulous doctrine”
that had plagued the subcommittee with delays. Again it was pointed
out that the withholding of information was in violation of clear
laws imposing a duty to make records available to Congress. The
report stated that the subcommittee had sought to be reasonable in
its request, and “on several occasions [has] withdrawn its requests
for particular documents at the suggestion of the executive branch.
Examples of documents in this category are certain memoranda
recording high-level discussions between Department of State
officials and senior officials of foreign governments.”
The report stated it should be understood that this willingness to
refrain from pressing for certain documents was not a recognition of
any right to withhold them. It continued:
“No court decision has settled the question of whether executive
officials may refuse to honor a request of a congressional committee
for papers, documents and records. Many court decisions, however,
have upheld the power of congressional committees to obtain records
and papers in the possession of private individuals, corporations,
and associations even though such records might be regarded as of
a highly personal nature. It logically follows that the power of
Congress to obtain information regarding the public business, the
exercise of authority granted by Congress, or the expenditure of
funds appropriated by Congress would likewise be upheld in the event
of a court test.
“If Congress is to discharge its constitutional legislative and
policymaking functions, it must have reliable information about the
public business.”
To allow the executive branch to pick and choose what the Congress
would be allowed to examine “can, and frequently does, result in
giving Congress a distorted picture,” the report said.
Then it suggested the use of two existing powers of Congress to
oppose this abuse of power by the executive: the power of subpoena,
and the power of the purse.
“The power of subpoena, however, should be used only as a last
resort. Utilizing the power of the purse, the Congress can and
should provide, in authorizing and appropriating legislation, that
the continued availability of appropriated funds is contingent upon
the furnishing of complete and accurate information relating to the
expenditure of such funds to the General Accounting Office and to the
appropriate committees of Congress at their request.”
A week after the report was issued, Chairman Hardy sent a letter to
the ICA, State Department, and the Development Loan Fund asking for
all documents on programs for seven Latin-American countries. His
staff had already obtained considerable information from sources
outside ICA indicating mismanagement, conflicts of interest, and
other corruption in the program in Peru.
A month later, on October 11, 1960, President Eisenhower issued a
formal order denying access to the records Hardy had requested.
Three weeks later, on October 31, 1960, Chairman Hardy made a formal
request for specific ICA documents from the Office of Inspector
General and Comptroller. This set the groundwork for shutting off
funds to the Office of Inspector General and Comptroller under the
provisions of the 1960 Amendment to the Mutual Security Act cited
earlier in this chapter.
President Eisenhower followed up a month later, on December 2, with a
certification denying access to these OIGC documents and eighty other
documents requested.
Here was the showdown to determine how far President Eisenhower would
go in overriding the express provisions of the 1959 law establishing
the Office of Inspector General and Comptroller. Chairman Hardy
notified the GAO of the OIGC refusal to produce records. And
Comptroller General Joseph Campbell, as head of GAO, filed notice
that unless the documents were made available the funds for OIGC
would be shut off on December 9.
By so doing, Campbell ruled that the refusal to produce the documents
on foreign aid to Latin-American countries was a violation of the
law even if the orders were issued by his one-time close associate,
President Eisenhower.
On December 9, Gerald Morgan, Deputy Assistant to the President,
requested a ruling from Attorney General William P. Rogers, and
thirteen days later Rogers wrote President Eisenhower (see Appendix
C). The Attorney General, as would be expected from his earlier
espousal of the most extreme interpretation of “executive privilege,”
declared Comptroller General Campbell’s ruling “erroneous.” In
his opinion, the President had a constitutional right to withhold
whatever he wanted to withhold. Rogers advised President Eisenhower
that he had the authority to direct the Secretary of the Treasury and
the Secretary of State to disregard the ruling of the Comptroller
General cutting off funds for the Office of Inspector General and
Comptroller.
With this advice in hand, President Eisenhower, on December 23,
overrode the disclosure provisions of the Mutual Security Act of
1959 and the ruling of the Comptroller General he had appointed. In
letters to Secretary of Treasury Robert B. Anderson and to Secretary
of State Christian Herter, President Eisenhower told them to use
federal funds to pay the Office of Inspector General and Comptroller.
He called attention to Campbell’s contention that such payments were
to be cut off under the law passed in 1959, and added:
“This position, I am advised by the Attorney General, is based upon
erroneous interpretation of law which would reach an unconstitutional
result and that mutual security program funds continue to be made
available for expenses of the Office of Inspector General and
Comptroller.”
“Accordingly, you are hereby directed, until the end of my term of
office on January 20, 1961, to cause disbursements to be made for
such expenses upon the receipt of certified vouchers presented for
that purpose.”
Chairman Hardy continued the investigation of Peru. But he had need
for documents that would be crucial in establishing the degree
of mismanagement and corruption in the ICA program there. The
most he could do now was to hope for better success under the new
administration. However, he did not want to present President-elect
John F. Kennedy with a problem for solution on or before the January
20 inaugural ceremonies.
He talked to Theodore Sorenson, Administrative Assistant to Senator
Kennedy and later counsel to the President, and informed him of the
pending problem. Hardy stated that he would withdraw his request
which could prevent payment of OIGC personnel if he received
assurances from the President-elect that the new administration would
review the problem immediately after the inaugural.
On December 31, 1960, Hardy received a telegram from President-elect
Kennedy asking that he postpone action on the documents until the new
administration had “an opportunity to review [the] situation.” Hardy
complied.
The night of January 18, 1961, President Eisenhower went before a
nationwide audience to give his “farewell address.” He appealed
for an “alert and knowledgeable citizenry” to combat the
military-industrial complex that could “endanger our liberties or
democratic processes.”
“This conjunction of an immense military establishment and a
large arms industry is new in the American experience,” President
Eisenhower said. “The total influence—economic, political, even
spiritual—is felt in every city, every statehouse, every office of
the Government.
“We recognize the imperative need for this development. Yet we must
not fail to comprehend its grave implications. Our toil, resources,
and livelihood are all involved: so is the very structure of our
society.
“In the council of Government, we must guard against the acquisition
of unwarranted influence, whether sought or unsought, by the
military-industrial complex. The potential for the disastrous rise of
misplaced power exists and will persist.”
[Congressman Edward Hebert, of Louisiana, had made a good many
comments on the military-industrial complex, and he had conducted a
fine investigation documenting some of the problems. But the record
indicated Chairman Hebert had not received full co-operation from the
Eisenhower administration. Now President Eisenhower was expressing as
much concern as Hebert.]
“We must never let the weight of this combination endanger our
liberties or democratic processes,” President Eisenhower warned. “We
should take nothing for granted. Only an alert and knowledgeable
citizenry can compel the proper meshing of the huge industrial and
military machinery of defense with our peaceful methods and goals, so
that security and liberty may prosper together.
“Partly because of the huge costs involved, a Government contract
becomes virtually a substitute for intellectual curiosity. For every
old blackboard there are now hundreds of new electronic computers.
“The prospect of domination of the Nation’s scholars by Federal
employment, project allocations, and the power of money is very
present—and is gravely to be regarded.”
President Eisenhower might have added that the arbitrary withholding
of information from Congress and the public was the quickest way to
give this military-industrial combination the control he believed
to be so dangerous. He apparently had never understood the secrecy
problem in his administration in such a way that he could see the
connection between the increase in secrecy and the decrease in
liberty and other essential elements of democracy. Chairman Hardy, I
myself, and others hoped the new President would.