A Pending Problem for JFK
In its first year, the Kennedy administration had tackled the problem
of secrecy with noble thoughts and brave deeds. President Kennedy
could not have spoken more clearly on the need for open government
in a democratic society. Moreover, he had followed up his words with
stringent action by overruling Secretary of State Dean Rusk on the
one occasion when the State Department had tried to hide records
behind a claim of “executive privilege.”
Chairman Edward Hebert said that his Armed Services subcommittee was
receiving better co-operation than it had ever received from the
Defense Department. Hebert had talked with President Kennedy and been
assured that the administration felt it needed the help and prodding
of a committee of Congress to cut the billions in wasteful defense
spending.
The investigations by Chairman Porter Hardy were proceeding on the
same note of co-operation, and the Virginia Democrat said he was
“hopeful that it will continue.” Chairman Hardy’s subcommittee
had a number of investigations of foreign aid under way, and he
believed that some of these investigations would be a real test of
the sincerity and consistency of the Kennedy administration stand on
“executive privilege.”
Though many good signs indicated the Kennedy administration meant
what it said about an open information policy, there were other
signs that did not augur so well. Perhaps the most important was
President Kennedy’s personal sensitivity to criticism and his
inclination to try to punish those he regarded as being “enemies” or
unfairly critical.
The President himself had telephoned reporters and editors to
complain about stories he considered unfair or unfavorable to him or
his administration. At one time, the reporters for _Time_ magazine
were cut off from contact with White House sources on a direct order
from the President. The order was lifted in about two weeks, after
President Kennedy and his assistants felt _Time’s_ reporters and
editors had been given a lesson.
Other persons in the White House behaved even tougher, threatening
retaliation against reporters they felt had done them damage. Lloyd
Norman, Pentagon correspondent for _Newsweek_ magazine, became the
target of an FBI investigation when he beat his colleagues with an
exclusive report on the alternative plans for action on the Berlin
crisis. The investigation was instigated despite the fact that before
publication the report was read by a high White House figure who
raised no question as to the propriety of printing it.
A memorandum by Frederick G. Dutton, Special Assistant to the
President, contained language on government information policies that
“shocked” Representative John Moss. The Dutton memorandum of July
20, 1961, was attached to a Civil Service Commission statement on
standards of conduct for government employees. It stated:
“Employees may not disclose official information without either
appropriate general or specific authority under agency regulations.”
Congressman Moss asked the White House for a “complete reversal” of
the statement, plus a “positive directive to all employees to honor
the people’s right to know as a routine matter in the conduct of
government business.
“This restrictive attitude expressed by this [Dutton] language is a
complete reversal of all of the policies which the House government
information subcommittee has supported for many years,” Moss wrote
to Dutton. “It is also a direct contradiction of the clear position
which President Kennedy has taken....”
The White House immediately withdrew the Dutton memorandum and
asserted the right of the people to be informed about government
operations. The incident nevertheless underscored the need for
constant vigilance to prevent directives that in substance tell
government employees to keep their mouths shut.
At the Pentagon there were also a few unhealthy signs that bore
watching. Defense Secretary Robert Strange McNamara was generally
praised as a bright, able, and hard-working public official, but his
performance in the information area did not elicit equally laudatory
comments. Though McNamara’s press chief, Assistant Secretary of
Defense Arthur Sylvester, had served for years as a reporter in the
Washington Bureau of the Newark _News_, he was sharply critical of
the press in his first months in office. He did little to smooth the
road for the Defense Secretary or to educate McNamara’s attitudes on
freedom of information.
Testimony released in May 1961 by the Senate Committee on Armed
Services disclosed that McNamara appeared to favor less information
for the public as well as misinformation on our military developments.
“Why should we tell Russia that the Zeus development may not be
satisfactory?” McNamara asked the Armed Services Committee. “What we
ought to be saying is that we have the most perfect anti-ICBM system
that the human mind will ever devise. Instead, the public domain is
already full of statements that the Zeus may not be satisfactory,
that it has deficiencies. I think it is absurd to release that kind
of information.”
The McNamara statement was met with immediate criticism from
Representative John E. Moss, chairman of the House Government
Information Subcommittee. Moss, a Democrat, declared that McNamara’s
testimony was “a gross disservice” to the people of the United
States and inconsistent with views expressed by President Kennedy.
He asked how the McNamara statement could be reconciled with
President Kennedy’s pledge to “withhold from neither the Congress
nor the people any fact or report, past, present or future, which is
necessary for an informed judgment of our conduct and hazards.”
Representative Moss declared that “advocacy of a program of
misinformation constitutes a grave disservice to a nation already
confused and suffering from informational malnutrition. To claim
perfection in a weapon system, thereby creating a false sense of
security, only results in complacency complained about by the very
officials who would further feed it.”
McNamara, Moss said, “expressed an attitude which while not new is
nevertheless most alarming.”
In the face of a barrage of similar criticism, the Defense Department
hurriedly released a statement that McNamara did not mean to mislead
the American people but only the Russians.
At his press conference on May 26, 1961, the Defense Secretary issued
a four-point statement to serve as a guide on information policy.
McNamara, forty-four-year-old Phi Beta Kappa and a former assistant
professor of business administration at Harvard, had learned at least
what his published position must be.
“In a democratic society,” his clarification began, “the public must
be kept informed of the major issues in our national defense policy.”
While pointing out the need to avoid disclosure of information
that might aid our potential enemies, he declared it “is equally
important to avoid overclassification. I suggest that we follow this
principle: When in doubt underclassify.”
The Defense Secretary also said that public statements must reflect
the policy of the Defense Department, and that Defense personnel
should not discuss “foreign policy subjects, a field which is
reserved for the President and the Secretary of State.”
Representative Moss commended Defense Secretary McNamara for
“recognition of the people’s right to know.” He singled out for
praise the McNamara comment that “the public has at least as much
right to bad news as good news.” However, he reserved judgment on the
instructions restricting comment on policy matters. Moss asked to be
advised on all directives or other instructions used in implementing
the general information policy. He had learned by now that fine
policy statements can mask the most intolerable withholding of
information.
The reasonableness of the general policy statements on Defense
information could hardly be criticized, but complaints were beginning
to be heard about a tightening of curbs on speeches by military
officers and about the difficulty of access to personnel at the
Pentagon.
_The Navy Times_, a private publication, commented:
“Americans generally ought to be having some misgivings over the
current trend at the Pentagon. There’s an air of secrecy, of
censorship, of arbitrary rulings.”
The Defense Department toyed with the idea of invoking “executive
privilege” when two committees of Congress initiated investigations
of shipments of strategic materials to various Iron Curtain
countries. The Internal Security Subcommittee of the Senate and
a House Select Committee on Export Control were embarking on a
repetition of the East-West trade investigations that Robert
Kennedy, then a committee lawyer, had directed five years earlier.
As Attorney General, Robert Kennedy advised against the use of
“executive privilege.”
Despite assurances that the Kennedy administration would not claim
“executive privilege,” Chairman Porter Hardy wanted the law to state
that reports of the Inspector General and Comptroller on foreign-aid
administration would be made available to Congress and the General
Accounting Office (GAO) auditors. Promises were fine, but Chairman
Hardy wanted a firm law to bolster his subcommittee’s authority to
obtain records on foreign-aid spending.
Hardy’s amendment to the foreign-aid legislation of 1961 provided
that if the Inspector General and Comptroller failed to make
information available to Congress and the GAO auditors, their funds
would be cut off by GAO. The House gave the amendment overwhelming
support.
The Senate, however—with support from the Kennedy
administration—emasculated the Hardy amendment by adding what
Representative George Meader described as the “Presidential escape
clause.” This clause provided that the Executive can avoid furnishing
information on foreign-aid expenditures upon a “certification by the
President that he has forbidden the furnishing thereof pursuant to
such request and his reason for so doing.”
Representatives Hardy and Meader remembered the experience with
a similar escape clause that was attached to the foreign-aid
legislation of 1959. It had enabled President Eisenhower simply to
sign a certification in order to bar Senate and House investigators
from every key record they sought dealing with mismanagement of the
foreign-aid program. The proof of the weakness of a law with such
an escape clause had caused the Congress to pass the tight Hardy
amendment in 1960. Although President Eisenhower defied the specific
intent of the Hardy amendment by hiding the Peru foreign-aid records,
the 1960 provisions had been considered strong enough for a court
test if Eisenhower had remained in office.
The Kennedy administration’s support of the “Presidential escape
clause” in the 1961 legislation was a bad omen to Representative
Meader.
“The effect of the Presidential escape clause ...” he said, “is to
weaken existing law and to diminish the power the Congress enjoyed
during [the last year of] the Eisenhower administration to obtain
information from the Executive of foreign aid expenditures.
“This constitutes a victory for the bureaucrats, a defeat for
Congress, and a serious setback in the fight against government
secrecy.”
Criticism of the Kennedy administration from some Republicans
could be disregarded. But from George Meader it invited serious
attention. As the foregoing chapters have shown, he was one of the
most outspoken critics of the information policies of the Eisenhower
administration.
Meader had joined Representative Hardy, a Democrat, in criticizing
the State Department in March when Secretary of State Rusk issued
orders barring the Hardy committee from testimony or records on the
Peru scandals. But he had also joined Hardy in applauding President
Kennedy for overruling his own Secretary of State and making the
ICA records on Peru foreign-aid scandals available to the Hardy
subcommittee.
On July 28, 1961, the Democratic-controlled House Government
Operations Committee issued a report on information policies. It
was, of course, highly critical of the Eisenhower administration but
not completely approving of the new administration. The committee
found the record of the first months of the Kennedy administration
“mixed.” However, it saw a “hopeful note” in the fact that President
Kennedy had given “positive policy direction from the top.”
The report contained a favorable comment on “the Presidential
determination—even at the cost of reversing his Secretary of State—to
live up to the new administration’s pledge to honor the right to
know.”
Democrats took great party pride in the speeches President Kennedy
made to assure the public of his concern for freedom of information.
“The essence of free communication must be that our failures as well
as our successes will be broadcast around the world,” President
Kennedy said at the convention of the National Association of
Broadcasters. “And therefore we take double pride in our successes.
“The great inner resource of freedom, the resource which has kept the
world’s oldest democracy continuously young and vital, the resource
which has always brought us our greatest exploits in time of our
greatest need, is the very fact of the open society.
“Thus, if we are once again to preserve our civilization, it will
be because of our freedom, and not in spite of it.... For the flow
of ideas, the capacity to make informed choices, the ability to
criticize, all the assumptions upon which political democracy rests,
depends largely upon communication.”
By the time the House Government Operations Committee was ready
to file a second report on government information policies, the
Democrats were aglow with admiration for President Kennedy. The
September 21, 1961, report stated: “For the first time since the
subcommittee entered the fight against excessive Government secrecy
six years ago, there is a powerful new weapon—the support of a
President who is clearly on record in favor of the greatest flow of
Government information.”
Representative Meader thought the Democrats were too willing to
praise a Democratic administration. In his dissent, he wrote:
“I cannot subscribe to the majority report because in my judgment it
has political overtones and accepts the self-serving declarations of
officials in the new administration rather than actual performance
as indicating an improvement in the attitude of the executive branch
toward providing information to the Congress and the public.
“The majority condemns the Eisenhower administration record
on secrecy in government while praising that of the Kennedy
administration. Such a distinction in my opinion, is not justified.”
Meader well remembered the fine words spoken in 1952 and 1953 on same
subject by officials of the Eisenhower administration. He knew that
the true test of the Kennedy administration lay not with words but
with the administration’s continued willingness to support the power
of inquiry of the Congress.
A few days after the release of the House report and Meader’s
dissent, Attorney General Kennedy upheld the importance of
investigations by Congress.
On the “Meet the Press” television show on September 24, James
Reston, Bureau Chief for The New York _Times_, said to Attorney
General Kennedy:
“In the field of ‘executive privilege’ ... you seem more willing than
previous Presidents and administrations to give information sought by
Congress.”
“As far as ‘executive privilege’ is concerned,” the Attorney General
answered, “I was associated with a congressional committee for
five or six years and had battles with the executive branch of the
government regarding obtaining information.
“I think it is terribly important to insure that the executive branch
of the government is not corrupt and that they are efficient, that
the legislative branch of the government has the ability to check on
what we are doing in the executive branch of the government.
“So, in every instance that has been brought to our attention in the
Department of Justice so far by various departments of the executive
branch where this question has been raised we have suggested and
recommended that they make the information available to Congress.
We will continue to do that. I don’t say that there might not be an
instance where ‘executive privilege’ might be used, but I think it is
terribly important that the executive branch of the government, as
powerful and strong as it is, that there be some check and balance on
it, and in the last analysis the group that can best check and insure
that it is handling its affairs properly is the Congress of the
United States, so we will lean over backwards to make sure that they
get the information they request.”
There was no reason to doubt the sincerity of the youthful Attorney
General, and in fact there was every reason to believe he meant what
he said. He was speaking from personal experience, he seemed to speak
with conviction, and it was not yet time to be posturing for the 1964
political campaign.
It was, of course, relatively easy to take a broad view at this time
when opening records could only expose crimes or mismanagement that
had developed when the Eisenhower administration was in power. It
would take more courage and great understanding of government to open
records that might expose a trusted Kennedy subordinate or embarrass
the Kennedy administration.
Barely more than a year after the Kennedy administration had taken
office, a situation arose which raised grave question as to what its
long-range policy would be. In February 1962, during the hearings on
alleged muzzling of military officers, President Kennedy invoked the
claim of “executive privilege” at the request of Defense Secretary
Robert McNamara. McNamara wished to avoid identifying for the Senate
Preparedness Subcommittee the Pentagon officials who had censored
specific speeches by high military officers.
President Kennedy’s letter to McNamara of February 8, 1962 (see
Appendix D), set out an ill-defined claim that the national interest
was at stake. The letter contained some terminology that seemed to
claim an absolute right to bar testimony before Congress by any
subordinate career officials. It was attacked by Senator Strom
Thurmond, the South Carolina Democrat, as a “dangerous” precedent
that would have barred Congress from investigating the Pearl Harbor
disaster or obtaining information on a wide variety of scandals.
Many political writers excused President Kennedy. Some pointed to
language in the letter they said indicated that he was not setting
a broad precedent but was merely shutting off an investigation they
considered to be senseless. Representative Moss declared that the
Senate subcommittee had the legal right to ask the questions to
determine which censors had blue-penciled which speeches.
It was not clear immediately whether the February 8 letter was to
be an isolated incident or a troublesome broad precedent for more
arbitrary secrecy in the tradition of the May 17, 1954, Eisenhower
letter.