A Solution
History establishes that any administration may be afflicted with
laxity, incompetence, and even outright fraud. History has also
taught that any administration can harbor men who want to hide
mistakes and corruption.
It is true that no President has been directly involved in fraudulent
activity, and it seems unlikely that any ever will be. Holding such
a high office would inspire almost any man to rise above the desire
for personal enrichment, particularly if the cost might be damaging
to his place in history. But any President might be tempted to hide
records on a claim of “executive privilege” if he felt he could save
some trusted subordinate from the slings of the opposition political
party.
In varying degrees, our Presidents have been dependent upon a
palace guard. The nature of the position, with all its vast
responsibilities, makes a circle of close advisers inevitable.
Thus Presidents of the past have sought information about alleged
improprieties or corruptions from the very men who have been accused
of perpetrating them. Instead of facts and a clear analysis of the
problem—whether it was Teapot Dome, tax scandals, or Dixon-Yates—the
Presidents have received misinformation and excuses. The accusations
have been explained away to our Presidents as partisan complaints
from politicians maliciously bent on destroying the administration’s
programs. Such explanations from palace guards unfortunately have
been all too effective and have obscured the facts that would have
alerted our Presidents to conflicts of interest, favoritism, and
fraud.
President Kennedy and future Presidents will face the same kind of
pitfalls. Regardless of their own integrity, they cannot be expected
to conduct personal investigations of each of their subordinates. The
Presidents and the people must therefore depend upon investigations
from outside the executive branch—by the Congress and the General
Accounting Office—for an aggressive search for the facts.
Investigations by Congress have demonstrated the failure of the
military departments to police themselves effectively from the
inside. In every recent year, the Congress and the GAO have
pinpointed the waste of hundreds of millions of dollars on
inefficient, incompetent, or corrupt handling of Defense contract
arrangements.
Examination of testimony on the foreign-aid programs in Laos and Peru
shows that the State Department is little better than the Defense
Department in rooting out mismanagement and corruption. There are
dozens of other areas within the bureaucracy where the record is just
as bad.
It is doubtful that we will ever eliminate corruption in the federal
government, but it must be kept under closer control or it can spread
with devastating impact. Nothing speeds the growth of corruption
more than policies that foster arbitrary secrecy. Secrecy allows
little scandals to become major scandals, costly to the taxpayers,
devastating to our foreign-aid program, to our position of defense
readiness, and to our national morale.
“Secrecy,” as the House Government Operations Committee has put it,
“is the handmaiden of bureaucracy, especially military bureaucracy.
It has so pervasive an effect that all government becomes invested
with the urge to restrict—even those routine agencies which should be
wide open to the public.”
In these pages, I have not attempted to examine every agency of
government. I have examined enough, however, to show how severe the
infection of secrecy has become, what dire symptoms it produces, and
how seriously it threatens the health of our democracy.
It can be wiped out. As treatment for a permanent cure, I suggest the
following steps:
1 _All officials except the President should be obligated to explain
all their actions to Congress and the General Accounting Office,
unless specific laws are passed for withholding information._ This
does not mean that the public or Congress should have access to all
papers when a decision is pending, but at a later date Congress
should have access to all records and testimony concerning events
leading up to the executive decisions.
A good example from recent history that shows the value of a properly
conducted hearing was the Senate investigation of President Truman’s
firing of General Douglas MacArthur in 1951.
The special Senate committee—selected with a reasonably even division
of political forces from the Armed Services and Foreign Relations
committees—did not seek testimony from President Truman. However, it
did require the testimony of General Omar Bradley, the Chairman of
the Joint Chiefs of Staff. Bradley testified on all events leading up
to the firing, including his meeting with President Truman. Bradley
was not asked to recount verbatim his discussion with President
Truman, but he testified he met with President Truman, that the
MacArthur actions were discussed, and the decision was made by
President Truman to fire General MacArthur.
The special Senate committee met behind closed doors but released a
daily transcript of testimony that had been examined to eliminate any
matter that might violate national military security standards.
Had the Eisenhower administration’s doctrine of “executive privilege”
prevailed at that time, a total secrecy blanket could have been
thrown around the Defense Department, the Joint Chiefs of Staff, and
the White House. There would have been no way of determining the
facts leading up to the decision, except as the President found it
convenient to reveal them.
How much better it was for all concerned that the MacArthur firing
was carefully examined and that the public was apprised of all the
material facts.
2 _Congress should enact special laws to cover the specific areas in
which withholding of records is deemed necessary to the public good._
There are now laws that provide for withholding of federal income
tax information from the public, and from all committees of Congress
except certain ones with supervisory jurisdiction over the Internal
Revenue Service. Laws have been enacted providing for withholding of
Defense information that involves national security. Other areas—FBI
reports, patent secrets, business reports, or personnel files—could
be covered by special legislation of a similar nature, but modified
to meet the requirements of the area in which the withholding is
needed.
3 _Congress should provide stiff criminal penalties for use against
government officials who withhold information from properly
authorized committees of Congress or the GAO._ This legislation
should also provide the mechanism for prosecution to be initiated by
the Congress or the GAO. Such a mechanism is necessary to avoid the
situation wherein an Attorney General, advocate for the President
and appointed by the President, simply refuses to enforce the law or
gives patently false legal opinions to avoid enforcement.
4 _The Congress should establish an effective means for systematic
review of papers carrying national security classifications of
“confidential,” “secret,” or “top secret.” Or the President could
establish a small committee to spot-check, review, and challenge
questionable use of national security classifications._ However the
review group is set up, its members should be selected from outside
the military field, and they should be persons with a strong and
responsible interest in open government. They should have authority
to challenge arbitrary or questionable security classifications and
authority to obtain explanations from all persons with a role in
questionable classifications.
This review group should not have the power to change
classifications, only the power to recommend changes. It should
have the authority, however, to file reports with Congress, with
department heads, and with the President that could be made public.
Such reports should identify individuals engaged in arbitrary or
questionable overclassification, as well as those responsible for
failing to take steps to declassify.
* * * * *
Only through the establishment of these checks on executive secrecy
can the public be assured that laws are administered in the way that
the Congress intended them to be. Only in this way can the public be
certain that the laws are not twisted or disregarded by an arbitrary
bureaucracy operating in secret.
And what about checks upon possible abuses by the investigating
committees of Congress? There are many. The courts offer some of the
most effective. Rulings in recent years have put limitations on the
power of an investigating committee. The committee must be properly
authorized by the House or Senate, with a specific authority, and it
must operate within the scope of that authority. The courts will not
uphold a contempt citation if a committee of Congress is operating
outside its proper authority, or if the questions asked are not
pertinent to the inquiry. Recent rulings have held that the committee
chairman must also explain to the witness the reasons why the
questions are pertinent and necessary to carry out the legislative
function.
In addition to these legal limitations, committees of Congress are
held in check by their own bipartisanship and the fact that they
usually operate in the public view. The members of the committees
nearly always represent a cross section of the Congress, everything
from extreme liberals to extreme conservatives with many gradations
between. This representation assures a spokesman for almost every
point of view. It also assures cross examination of witnesses in most
cases, for minority counsel is normally provided to help minority
members bring out facts that the majority may choose to overlook or
minimize.
In recent years, most committees have adopted rules of procedure to
assure some element of fair play. Since most hearings are held in
public, there is the opportunity for the press and other interested
groups and individuals to view the questioning and to point out any
lapses in fair play.
Open congressional hearings do not absolutely assure fair play, but
they do represent the best practical means this country has so far
devised for assuring the public’s right to know about the running of
its government.
It is pertinent to note here that in England, which is generally
regarded by political authorities as a model for democratic
procedures, the need for constant inquiry into governmental policies
and administration of the laws is fully recognized.
The British Government, unlike ours, is totally responsible to the
Parliament, with the Prime Minister and other ministers coming out
of the Parliament. This system has resulted in the development of
a number of devices to accomplish the same basic purpose that our
congressional investigations should accomplish.
There is a “question time” in Parliament four days a week during
which any member of the House of Commons may interrogate the various
ministers and even the Prime Minister. This periodic opportunity for
questioning makes it possible for the opposition either to obtain
immediate answers or to demonstrate evasiveness on crucial issues.
Also the Parliament is free to investigate through select committees
of the House of Commons which are unlimited in their power to compel
testimony and production of records and to punish for contempt.
The contempt can be punished by jailing by the Parliament for the
duration of the term, and British courts have left this power
unlimited over the years.
The “question time” and select committees are supplemented by Royal
Commissions of Inquiry, technically established and appointed by the
Crown and Tribunals of Inquiry, established by the Parliament with
members named by the Crown.
The Royal Commissions have had no power to compel testimony and
production of records. However, co-operation is usually obtained
because of the pressure of British public opinion, as well as the
ever-present threat that a select committee of the Commons can take
jurisdiction and use its contempt powers to force testimony.
The Tribunals of Inquiry operate with the normal court powers of
subpoena and oaths to compel testimony. This is a device for taking
an inquiry out of the partisan political atmosphere of a legislative
investigation.
In the United States the question is often asked whether greater
congressional freedom in questioning officials of the executive
branch would not interfere with the efficiency of the government.
Much of the business of federal government is simply keeping records
and preparing testimony to account for the custodianship of the
government agencies. In most instances it would take an official
far less time to go before a committee of Congress and give a frank
account of the activities of his agency than it has taken to devise
cover-ups for frauds, mismanagement, and embarrassing oversights.
The Teapot Dome scandals could have been fully disclosed in a few
months instead of several years. The details of some of the Truman
tax scandals could have been uncovered in a few weeks. And again, a
frank accounting could have explained the Dixon-Yates contract in a
matter of days.
Congress can be of great service to a cabinet officer in keeping
his agency clean. If a congressional committee is unreasonable,
or brutal, or oversteps its jurisdiction, such abuses, it must be
remembered, take place in public where they can be seen and remedied.
The President and others in the executive branch have the personnel
and facilities for pointing out the abuses so they can be eradicated
in the face of public opinion.
Ours was designed to be a government of laws, and not a government
of men. It was not intended that the President or any other
official would have a right to disregard the laws of Congress in
accounting on government activity. The President, it should be
pointed out, has all of the protection he needs to prevent Congress
from unduly interfering with him in carrying out his executive
responsibilities. The separation of powers of the three branches of
government is clearly set out in the Constitution, and the only way
the Constitution has provided for Congress to take action against
the President is to impeach him. Since no President yet has been
impeached, this procedure would be resorted to in only the most
drastic of circumstances.
The President of the United States, with the vast power and prestige
of his office, has the obligation to set a tone of government that
assures the fullest possible flow of information consistent with
the nation’s security. He must take the lead in breaking down the
arrogance of the bureaucracy that assumes a right to keep the
knowledge of the people’s business from the people themselves, and
thus restore the people’s faith in their governmental servants.
President Kennedy has made an uncertain start. Whether he succeeds
depends not only on him, but on the press and the public as well. We
cannot afford to allow our faith in a President’s good intentions and
his own personal integrity to blind us, as we did during President
Eisenhower’s administration, to the machinations of the Washington
cover-up. The press, the Congress, the public must make certain
that Attorney General Kennedy and other key members of the Kennedy
administration remember how “terribly important” it is that Congress
and the Government Accounting Office maintain full access to the
records of government.
When the old secrecy practices are cast aside and the freedom of
information guaranteed, then will our democracy flourish as the
founding fathers intended it should.
APPENDIX A
_Letter from President Eisenhower to the Secretary of Defense_
THE WHITE HOUSE,
_May 17, 1954_
The Honorable the SECRETARY OF DEFENSE,
_Washington, D. C._
DEAR MR. SECRETARY: It has long been recognized that to assist the
Congress in achieving its legislative purposes every Executive
Department or Agency must, upon the request of a Congressional
Committee, expeditiously furnish information relating to any matter
within the jurisdiction of the Committee, with certain historical
exceptions—some of which are pointed out in the attached memorandum
from the Attorney General. This Administration has been and will
continue to be diligent in following this principle. However, it
is essential to the successful working of our system that the
persons entrusted with power in any one of the three great branches
of Government shall not encroach upon the authority confided to
the others. The ultimate responsibility for the conduct of the
Executive branch rests with the President.
Within this Constitutional framework each branch should co-operate
fully with each other for the common good. However, throughout our
history the President has withheld information whenever he found
that what was sought was confidential or its disclosure would be
incompatible with the public interest or jeopardize the safety of
the Nation.
Because it is essential to efficient and effective administration
that employees of the Executive Branch be in a position to be
completely candid in advising with each other on official matters,
and because it is not in the public interest that any of their
conversations or communications, or any documents or reproductions,
concerning such advice be disclosed, you will instruct employees
of your Department that in all of their appearances before the
Subcommittee of the Senate Committee on Government Operations
regarding the inquiry now before it they are not to testify to
any such conversations or communications or to produce any such
documents or reproductions. This principle must be maintained
regardless of who would be benefited by such disclosures.
I direct this action so as to maintain the proper separation of
powers between the Executive and Legislative Branches of the
Government in accordance with my responsibilities and duties under
the Constitution. This separation is vital to preclude the exercise
of arbitrary power by any branch of the Government.
By this action I am not in any way restricting the testimony of
such witnesses as to what occurred regarding any matters where
the communication was directly between any of the principals in
the controversy within the Executive Branch on the one hand and a
member of the Subcommittee or its staff on the other.
Sincerely,
DWIGHT D. EISENHOWER
MEMORANDUM
For: the President.
From: the Attorney General.
One of the chief merits of the American system of written
constitutional law is that all the powers entrusted to the
government are divided into three great departments, the
Executive, the Legislative, and the Judicial. It is essential to
the successful working of this system that the persons entrusted
with power in any one of these branches shall not be permitted to
encroach upon the powers confided to the others, but that each
shall be limited to the exercise of the powers appropriate to its
own department and no other. The doctrine of separation of powers
was adopted to preclude the exercise of arbitrary power and to save
the people from autocracy.
This fundamental principle was fully recognized by our first
President, George Washington, as early as 1796 when he said: “...
it is essential to the due administration of the Government that
the boundaries fixed by the Constitution between the different
departments should be preserved....” In his Farewell Address,
President Washington again cautioned strongly against the danger
of encroachment by one department into the domain of another
as leading to despotism. This principle has received steadfast
adherence throughout the many years of our history and growth. More
than ever, it is our duty today to heed these words if our country
is to retain its place as a leader among the free nations of the
world.
For over 150 years—almost from the time that the American form of
government was created by the adoption of the Constitution—our
Presidents have established, by precedent, that they and members
of their Cabinet and other heads of executive departments have an
undoubted privilege and discretion to keep confidential, in the
public interest, papers and information which require secrecy.
American history abounds in countless illustrations of the refusal,
on occasion, by the President and heads of departments to furnish
papers to Congress, or its committees, for reasons of public
policy. The messages of our past Presidents reveal that almost
every one of them found it necessary to inform Congress of his
constitutional duty to execute the office of President, and, in
furtherance of that duty, to withhold information and papers for
the public good.
Nor are the instances lacking where the aid of a court was sought
in vain to obtain information or papers from a President and the
heads of departments. Courts have uniformly held that the President
and the heads of departments have an uncontrolled discretion to
withhold the information and papers in the public interest, they
will not interfere with the exercise of that discretion, and that
Congress has not the power, as one of the three great branches of
the Government, to subject the Executive Branch to its will any
more than the Executive Branch may impose its unrestrained will
upon the Congress.
PRESIDENT WASHINGTON’S ADMINISTRATION
In March 1792, the House of Representatives passed the following
resolution:
“_Resolved_, That a committee be appointed to inquire into the
causes of the failure of the late expedition under Major General
St. Clair, and that the said committee be empowered to call for
such persons, papers, and records, as may be necessary to assist
their inquiries” (3 Annals of Congress, p. 493).
This was the first time that a committee of Congress was appointed
to look into a matter which involved the Executive Branch of the
Government. The expedition of General St. Clair was under the
direction of the Secretary of War. The expenditures connected
therewith came under the Secretary of the Treasury. The House
based its right to investigate on its control of the expenditures
of public moneys. It appears that the Secretaries of War and the
Treasury appeared before the committee. However, when the committee
was bold enough to ask the President for the papers pertaining
to the General St. Clair campaign, President Washington called a
meeting of his Cabinet (Binkley, _President and Congress_, pp.
40-41).
Thomas Jefferson, as Secretary of State, reports what took place at
that meeting. Besides Jefferson, Alexander Hamilton, Henry Knox,
Secretary of War, and Edmond Randolph, the Attorney General, were
present. The Committee had first written to Knox for the original
letters, instructions, etc., to General St. Clair. President
Washington stated that he had called his Cabinet members together,
because it was the first example of a demand on the Executive for
papers, and he wished that so far as it should become a precedent,
it should be rightly conducted. The President readily admitted that
he did not doubt the propriety of what the House was doing, but he
could conceive that there might be papers of so secret a nature
that they ought not to be given up. Washington and his Cabinet
came to the unanimous conclusion:
“First, that the House was an inquest, and therefore might
institute inquiries. Second, that it might call for papers
generally. Third, that the Executive ought to communicate such
papers as the public good would permit, and ought to refuse those,
the disclosure of which would injure the public; consequently were
to exercise a discretion. Fourth, that neither the committee nor
House had a right to call on the Head of a Department, who and
whose papers were under the President alone; but that the committee
should instruct their chairman to move the House to address the
President.”
The precedent thus set by our first President and his Cabinet was
followed in 1796, when President Washington was presented with a
resolution of the House of Representatives which requested him to
lay before the House a copy of the instructions to the Minister of
the United States who negotiated the treaty with the King of Great
Britain, together with the correspondence and documents relative to
that treaty. Apparently it was necessary to implement the treaty
with an appropriation which the House was called upon to vote. The
House insisted on its right to the papers requested, as a condition
to appropriating the required funds (_President and Congress_,
Wilfred E. Binkley [1947], p. 44).
President Washington’s classic reply was, in part, as follows:
“I trust that no part of my conduct has ever indicated a
disposition to withhold any information which the Constitution has
enjoined upon the President as a duty to give, or which could be
required of him by either House of Congress as a right; and with
truth I affirm that it has been, as it will continue to be while I
have the honor to preside in the Government, my constant endeavor
to harmonize with the other branches thereof so far as the trust
delegated to me by the people of the United States and my sense of
the obligation it imposes to ‘preserve, protect, and defend the
Constitution’ will permit” (Richardson, _Messages and Papers of the
Presidents_, vol. 1, p. 194).
Washington then went on to discuss the secrecy required in
negotiations with foreign governments, and cited that as a reason
for vesting the power of making treaties in the President, with the
advice and consent of the Senate. He felt that to admit the House
of Representatives into the treaty-making power, by reason of its
constitutional duty to appropriate monies to carry out a treaty,
would be to establish a dangerous precedent. He closed his message
to the House as follows:
“As, therefore, it is perfectly clear to my understanding that
the assent of the House of Representatives is not necessary to
the validity of a treaty; ... and as it is essential to the due
administration of the Government that the boundaries fixed by the
Constitution between the different departments should be preserved,
a just regard to the Constitution and to the duty of my office,
under all the circumstances of this case, forbids a compliance with
your request” (Richardson, _Messages and Papers of the Presidents_,
vol. 1, p. 196).
PRESIDENT JEFFERSON’S ADMINISTRATION
In January 1807, Representative Randolph introduced a resolution,
as follows:
“_Resolved_, That the President of the United States be, and he
hereby is, requested to lay before this House any information in
possession of the Executive, except such as he may deem the public
welfare to require not to be disclosed, touching any illegal
combination of private individuals against the peace and safety of
the Union, or any military expedition planned by such individuals
against the territories of any Power in amity with the United
States; together with the measures which the Executive has pursued
and proposes to take for suppressing or defeating the same” (16
Annals of Congress [1806-1807], p. 336).
The resolution was overwhelmingly passed. The Burr conspiracy was
then stirring the country. Jefferson had made it the object of
a special message to Congress wherein he referred to a military
expedition headed by Burr. Jefferson’s reply to the resolution was
a Message to the Senate and House of Representatives. Jefferson
brought the Congress up to date on the news which he had been
receiving concerning the illegal combination of private individuals
against the peace and safety of the Union. He pointed out that
he had recently received a mass of data, most of which had been
obtained without the sanction of an oath so as to constitute formal
and legal evidence. “It is chiefly in the form of letters, often
containing such a mixture of rumors, conjectures, and suspicions
as renders it difficult to sift out the real facts and unadvisable
to hazard more than general outlines, strengthened by concurrent
information or the particular credibility of the relator. In
this state of the evidence, delivered sometimes, too, under the
restriction of private confidence, neither safety nor justice will
permit the exposing names, except that of the principal actor,
whose guilt is placed beyond question” (Richardson, _Messages and
Papers of the Presidents_, vol. 1, p. 412, dated January 22, 1807).
SIMILAR ACTIONS BY PRESIDENTS JACKSON, TYLER, BUCHANAN, AND GRANT
On February 10, 1835, President Jackson sent a message to the
Senate wherein he declined to comply with the Senate’s resolution
requesting him to communicate copies of charges which had been
made to the President against the official conduct of Gideon Fitz,
late Surveyor-General, which caused his removal from office. The
resolution stated that the information requested was necessary both
in the action which it proposed to take on the nomination of a
successor to Fitz, and in connection with the investigation which
was then in progress by the Senate respecting the frauds in the
sales of public lands.
The President declined to furnish the information. He stated that
in his judgment the information related to subjects exclusively
belonging to the executive department. The request therefore
encroached on the constitutional powers of the executive.
The President’s message referred to many previous similar requests,
which he deemed unconstitutional demands by the Senate:
“Their continued repetition imposes on me, as the representative
and trustee of the American people, the painful but imperious duty
of resisting to the utmost any further encroachment on the rights
of the Executive” (ibid., p. 133).
The President next took up the fact that the Senate resolution
had been passed in executive session, from which he was bound
to presume that if the information requested by the resolution
were communicated, it would be applied in secret session to the
investigation of frauds in the sales of public lands. The President
said that, if he were to furnish the information, the citizen whose
conduct the Senate sought to impeach would lose one of his basic
rights, namely—that of a public investigation in the presence
of his accusers and of the witnesses against him. In addition,
compliance with the resolution would subject the motives of the
President, in the case of Mr. Fitz, to the review of the Senate
when not sitting as judges on an impeachment; and even if such
a consequence did not follow in the present case, the President
feared that compliance by the Executive might thereafter be quoted
as a precedent for similar and repeated applications.
“Such a result, if acquiesced in, would ultimately subject the
independent constitutional action of the Executive in a matter of
great national concernment to the domination and control of the
Senate;...
“I therefore decline a compliance with so much of the resolution of
the Senate as requests ‘copies of the charges, if any,’ in relation
to Mr. Fitz, and in doing so must be distinctly understood as
neither affirming nor denying that any such charges were made ...”
(ibid., p. 134).
One of the best reasoned precedents of a President’s refusal
to permit the head of a department to disclose confidential
information to the House of Representatives is President Tyler’s
refusal to communicate to the House of Representatives the reports
relative to the affairs of the Cherokee Indians and to the frauds
which were alleged to have been practiced upon them. A resolution
of the House of Representatives had called upon the Secretary of
War to communicate to the House the reports made to the Department
of War by Lieutenant Colonel Hitchcock relative to the affairs of
the Cherokee Indians together with all information communicated by
him concerning the frauds he was charged to investigate; also all
facts in the possession of the Executive relating to the subject.
The Secretary of War consulted with the President and under the
latter’s direction informed the House that negotiations were then
pending with the Indians for settlement of their claims; in the
opinion of the President and the Department, therefore, publication
of the report at that time would be inconsistent with the public
interest. The Secretary of War further stated in his answer to
the resolution that the report sought by the House, dealing with
alleged frauds which Lieutenant Colonel Hitchcock was charged to
investigate, contained information which was obtained by Colonel
Hitchcock by ex parte inquiries of persons whose statements were
without the sanction of an oath, and which the persons implicated
had had no opportunity to contradict or explain. The Secretary
of War expressed the opinion that to promulgate those statements
at that time would be grossly unjust to those persons, and would
defeat the object of the inquiry. He also remarked that the
Department had not been given at that time sufficient opportunity
to pursue the investigation, to call the parties affected for
explanations, or to determine on the measures proper to be taken.
The answer of the Secretary of War was not satisfactory to the
Committee on Indian Affairs of the House, which claimed the
right to demand from the Executive and heads of departments such
information as may be in their possession relating to subjects of
the deliberations of the House.
President Tyler in a message dated January 31, 1843, vigorously
asserted that the House of Representatives could not exercise a
right to call upon the Executive for information, even though it
related to a subject of the deliberations of the House, if, by
so doing, it attempted to interfere with the discretion of the
Executive.
The same course of action was taken by President James Buchanan in
1860 in resisting a resolution of the House to investigate whether
the President or any other officer of the Government had, by money,
patronage, or other improper means sought to influence the action
of Congress for or against the passage of any law relating to the
rights of any state or territory. (See Richardson, _Messages and
Papers of the Presidents_, vol. 5, pp. 618-19.)
In the administration of President Ulysses S. Grant the House
requested the President to inform it whether any executive offices,
acts, or duties, and if any, what, have been performed at a
distance from the seat of government established by law. It appears
that the purpose of this inquiry was to embarrass the President by
reason of his having spent some of the hot months at Long Branch.
President Grant replied that he failed to find in the Constitution
the authority given to the House of Representatives, and that the
inquiry had nothing to do with legislation (Richardson, _Messages
and Papers of the Presidents_, vol. 7, pp. 362-63).
PRESIDENT CLEVELAND’S ADMINISTRATION
In 1886, during President Cleveland’s administration, there
was an extended discussion in the Senate with reference to its
relations to the Executive caused by the refusal of the Attorney
General to transmit to the Senate certain documents concerning
the administration of the Office of the District Attorney for the
Southern District of South Alabama, and suspension of George W.
Durkin, the late incumbent. The majority of the Senate Committee
on the Judiciary concluded that it was entitled to know all
that officially exists or takes place in any of the departments
of Government and that neither the President nor the head of
a department could withhold official facts and information as
distinguished from private and unofficial papers.
In his reply President Cleveland disclaimed any intention to
withhold official papers, but he denied that papers and documents
inherently private or confidential, addressed to the President or a
head of a department, having reference to an act entirely executive
such as the suspension of an official, were changed in their nature
and became official when placed for convenience in the custody
of a public department. (Richardson, _Messages and Papers of the
Presidents_, vol. 8, pp. 378-79, 381.)
Challenging the attitude that because the executive departments
were created by Congress the latter had any supervisory power
over them, President Cleveland declared (Eberling, _Congressional
Investigation_, p. 258):
“I do not suppose that the public offices of the United States
are regulated or controlled in their relations to either House of
Congress by the fact that they were created by laws enacted by
themselves. It must be that these instrumentalities were created
for the benefit of the people and to answer the general purposes
of government under the Constitution and the laws, and that they
are unencumbered by any lien in favor of either branch of Congress
growing out of their construction, and unembarrassed by any
obligation to the Senate as the price of their creation.”
PRESIDENT THEODORE ROOSEVELT’S ADMINISTRATION
In 1909, during the administration of President Theodore Roosevelt,
the question of the right of the President to exercise complete
direction and control over heads of executive departments was
raised again. At that time the Senate passed a resolution
directing the Attorney General to inform the Senate whether certain
legal proceedings had been instituted against the United States
Steel Corporation, and if not, the reasons for its nonaction.
Request was also made for any opinion of the Attorney General, if
one was written. President Theodore Roosevelt replied refusing to
honor this request upon the ground that “Heads of the Executive
Departments are subject to the Constitution, and to the laws passed
by the Congress in pursuance of the Constitution, and to the
directions of the President of the United States, but to no other
direction whatever” (_Congressional Record_, vol. 43, pt. 1, 60th
Cong., 2d sess., pp. 527-28).
When the Senate was unable to get the documents from the Attorney
General, it summoned Herbert K. Smith, the Head of the Bureau of
Corporations, and requested the papers and documents on penalty
of imprisonment for contempt. Mr. Smith reported the request to
the President, who directed him to turn over to the President
all the papers in the case “so that I could assist the Senate in
the prosecution of its investigation.” President Roosevelt then
informed Senator Clark of the Judiciary Committee what had been
done, that he had the papers and the only way the Senate could
get them was through his impeachment. President Roosevelt also
explained that some of the facts were given to the Government under
the seal of secrecy and cannot be divulged, “and I will see to it
that the word of this Government to the individual is kept sacred.”
(Corwin, _The President: Office and Powers_, pp. 281, 428; Abbott,
_The Letters of Archie Butt, Personal Aid to President Roosevelt_,
pp. 305-6.)
PRESIDENT COOLIDGE’S ADMINISTRATION
In 1924, during the administration of President Coolidge, the latter
objected to the action of a special investigating committee appointed
by the Senate to investigate the Bureau of Internal Revenue. Request
was made by the committee for a list of the companies in which the
Secretary of the Treasury was alleged to be interested for the
purpose of investigating their tax returns. Calling this exercise of
power an unwarranted intrusion, President Coolidge said:
“Whatever may be necessary for the information of the Senate or any
of its committees in order to better enable them to perform their
legislative or other constitutional functions ought always to be
furnished willingly and expeditiously by any department. But it is
recognized both by law and custom that there is certain confidential
information which it would be detrimental to the public service to
reveal” (68th Cong., 1st sess., _Record_, April 11, 1924, p. 6087).
PRESIDENT HOOVER’S ADMINISTRATION
A similar question arose in 1930 during the administration of
President Hoover. Secretary of State Stimson refused to disclose
to the Chairman of the Senate Foreign Relations Committee certain
confidential telegrams and letters leading up to the London
Conference and the London Treaty. The Committee asserted its
right to have full and free access to all records touching the
negotiations of the treaty, basing its right on the constitutional
prerogative of the Senate in the treaty-making process. In his
message to the Senate, President Hoover pointed out that there were
a great many informal statements and reports which were given to
the Government in confidence. The Executive was under a duty, in
order to maintain amicable relations with other nations, not to
publicize all the negotiations and statements which went into the
making of the treaty. He further declared that the Executive must
not be guilty of a breach of trust, nor violate the invariable
practice of nations. “In view of this, I believe that to further
comply with the above resolution would be incompatible with the
public interest” (S. Doc. No. 216, 71st Cong., special sess., p. 2).
PRESIDENT FRANKLIN D. ROOSEVELT’S ADMINISTRATION
The position was followed during the administration of President
Franklin D. Roosevelt. There were many instances in which the
President and his Executive heads refused to make available certain
information to Congress the disclosure of which was deemed to be
confidential or contrary to the public interest. Merely a few need
be cited.
1. Federal Bureau of Investigation records and reports were refused
to congressional committees, in the public interest (40 Op. A. G.
No. 8, April 30, 1941).
2. The Director of the Federal Bureau of Investigation refused to
give testimony or to exhibit a copy of the President’s directive
requiring him, in the interests of national security, to refrain
from testifying or from disclosing the contents of the Bureau’s
reports and activities. (_Hearings_, vol. 2, House, 78th Cong.
Select Committee to Investigate the Federal Communications
Commission, 1944, p. 2337.)
3. Communications between the President and the heads of
departments were held to be confidential and privileged and not
subject to inquiry by a committee of one of the Houses of Congress.
(Letter dated January 22, 1944, signed Francis Biddle, Attorney
General to Select Committee, etc.)
4. The Director of the Bureau of the Budget refused to testify and
to produce the Bureau’s files, pursuant to subpoena which had been
served upon him, because the President had instructed him not to
make public the records of the Bureau due to their confidential
nature. Public interest was again invoked to prevent disclosure.
(Reliance placed on Attorney General’s Opinion in 40 Op. A. G. No.
8, April 30, 1941.)
5. The Secretaries of War and Navy were directed not to deliver
documents which the committee had requested, on grounds of
public interest. The Secretaries, in their own judgment, refused
permission to Army and Navy officers to appear and testify because
they felt that it would be contrary to the public interests.
(_Hearings_, Select Committee to Investigate the Federal
Communications Commission, vol. 1, pp. 46, 48-68.)
PRESIDENT TRUMAN’S ADMINISTRATION
During the Truman administration also the President adhered to
the traditional Executive view that the President’s discretion
must govern the surrender of Executive files. Some of the major
incidents during the administration of President Truman in which
information, records, and files were denied to Congressional
Committees were as follows:
Date Type of Document Refused
Mar. 4, 1948 FBI letter-report on Dr. Condon, Director of National
Bureau of Standards, refused by Secretary of
Commerce.
Mar. 15, 1948 President issued directive forbidding all Executive
departments and agencies to furnish information or
reports concerning loyalty of their employees to
any court or committee of Congress, unless
President approves.
March 1948 Dr. John R. Steelman, Confidential Adviser to the
President, refused to appear before Committee on
Education and Labor of the House, following the
service of two subpoenas upon him. President
directed him not to appear.
Aug. 5, 1948 Attorney General wrote Senator Ferguson, Chairman
of Senate Investigations Subcommittee, that he
would not furnish letters, memoranda, and other
notices which the Justice Department had furnished
to other government agencies concerning W. W.
Remington.
Feb. 22, 1950 Senate Res. 231 directing Senate Subcommittee to
procure State Department loyalty files was met with
President Truman’s refusal, following vigorous
opposition of J. Edgar Hoover.
Mar. 27, 1950 Attorney General and Director of FBI appeared before
Senate Subcommittee. Mr. Hoovers historic statement
of reasons for refusing to furnish raw files
approved by Attorney General.
May 16, 1951 General Bradley refused to divulge conversations
between President and his advisers to combined
Senate Foreign Relations and Armed Services
Committees.
Jan. 31, 1952 President Truman directed Secretary of State to
refuse to Senate Internal Security Subcommittee
the reports and views of foreign service officers.
Apr. 22, 1952 Acting Attorney General Perlman laid down procedure
for complying with requests for inspection of
Department of Justice files by Committee on
Judiciary:
Requests on open cases would not be honored.
Status report will be furnished.
As to closed cases, files would be made
available. All FBI reports and confidential
information would not be made available.
As to personnel files, they are never
disclosed.
Apr. 3, 1952 President Truman instructed Secretary of State to
withhold from Senate Appropriations Subcommittee
files on loyalty and security investigations of
employees—policy to apply to all Executive
agencies. The names of individuals determined to
be security risks would not be divulged. The voting
record of members of an agency loyalty board would
not be divulged.
Thus, you can see that the Presidents of the United States have
withheld information of Executive departments or agencies whenever
it was found that the information sought was confidential or that
its disclosure would be incompatible with the public interest or
jeopardize the safety of the Nation. The courts too have held that
the question whether the production of the papers was contrary to
the public interest was a matter for the Executive to determine.
By keeping the lines which separate and divide the three great
branches of our Government clearly defined, no one branch has been
able to encroach upon the powers of the other.
Upon this firm principle our country’s strength, liberty, and
democratic form of government will continue to endure.
APPENDIX B
_Letters Regarding the Presidential Letter of May 17, 1954_
_October 9, 1956_
Hon. DWIGHT D. EISENHOWER,
_The President of the United States,
The White House, Washington, D.C._
DEAR MR. PRESIDENT: At your press conference on Thursday, September
27, 1956, you were asked whether your letter of May 17, 1954,
to Secretary of Defense Charles E. Wilson was being misused as
authority to restrict information from the public.
This question was posed by Mr. Clark Mollenhoff of the Des Moines
Register and Tribune.
You stated that if Mr. Mollenhoff would put the question in
writing—which I understand he has done—it will be answered.
This particular letter and its misuse by a number of Federal
departments and agencies has been a great concern to the Special
Subcommittee on Government Information. Although the letter, and
the accompanying memorandum from the Attorney General, granted
authority to one particular agency to refuse information to a
specific committee of Congress in a single instance, 19 departments
and agencies have cited the letter as authority to refuse
information to the public or the Congress.
This occurred in agency answers to the subcommittee’s questionnaire
of November 7, 1955, on information practices and policies as well
as during subcommittee hearings with executive officials.
Enclosed is an intermediate report, adopted unanimously by the
House Government Operations Committee, on the subcommittee’s study
of restrictions on information. The problem of misuse of the May
17, 1954, letter is discussed on page 90 and at other points.
When the answer to Mr. Mollenhoff’s question has been prepared and
transmitted to him, the subcommittee would appreciate receiving
copies of it and any other comments you have on the matter.
Respectfully,
JOHN E. MOSS, _Chairman_
THE WHITE HOUSE,
_Washington, October 17, 1956_.
Hon. JOHN E. MOSS,
_House of Representatives, Washington, D.C._
DEAR MR. MOSS: This will acknowledge your October 9 letter to the
President asking that you be supplied with copies of the answer
to a question submitted by Mr. Clark Mollenhoff of the Des Moines
Register and Tribune.
The answer to this question has not yet been given. However, as
soon as it is, we will get in touch with you.
Sincerely,
GERALD D. MORGAN,
_Special Counsel to the President_
_October 26, 1956_
Mr. CLARK R. MOLLENHOFF,
_Des Moines Register and Tribune,
National Press Building, Washington, D.C._
DEAR CLARK: At the press conference on September 27, 1956,
you asked the President whether “all employees of the Federal
Government, at their own discretion, can determine whether they
will testify or will not testify before congressional committees
when there is no security problem involved.”
In the President’s letter of May 17, 1954, to Secretary Wilson,
the President set forth the general principles that are to govern
all employees in the executive branch concerning their testimony,
or the production of documents, relating to their conversations or
communications with, or their advice to, each other on official
matters. In his press conference of July 6, 1955, the President
further amplified the principles set forth in this letter as
follows:
“If anybody in an official position of this Government does
anything which is an official act, and submits it either in the
form of recommendation or anything else, that is properly a matter
for investigation if Congress so chooses, provided the national
security is not involved.
“But when it comes to the conversations that take place between
any responsible official and his advisers, or exchange of mere
little slips, of this or that, expressing personal opinions on the
most confidential basis, those are not subject to investigation by
anybody. And if they are it will wreck the Government.”
In so writing to Secretary Wilson, and in further amplifying these
principles, the President was exercising a right, which is his, and
his alone, to determine what action is necessary to maintain the
proper separation of powers between the executive and legislative
branches of the Government. In the orderly administration of the
Government, the head of each executive agency directs the manner
in which these principles are enforced.
The underlying reasons for these principles are set forth in the
President’s letter of May 17, 1954. It is essential to efficient
and effective administration that employees of the executive branch
be in a position to be completely candid in advising each other on
official matters. It is essential, if channels of information are
to be kept open, that confidences among employees should not be
breached.
It will continue to be this administration’s policy to keep the
Congress and the people fully informed of what is being done in
the executive branch. An employee is not free merely to exercise
his own discretion but in the final analysis information will be
withheld only when the President or agency heads acting under the
President’s authority or instruction determine it is contrary to
the public interest to disclose it.
All of the above, of course, is subject to the Executive order
dealing with the classification of information in the interest
of security, and to the various statutes and regulations of the
department and agencies relating to information to be held in
confidence.
I hope this answers your inquiry.
Sincerely,
GERALD D. MORGAN,
_Special Counsel to the President_
APPENDIX C
_Correspondence on the Right of Access to Information by the General
Accounting Office_
_November 12, 1958_
Hon. DWIGHT D. EISENHOWER,
_President of the United States,
Washington, D.C._
DEAR MR. PRESIDENT: I just returned to Washington for a hearing
of the Government Information Subcommittee. The subcommittee, I
understand, will inquire into the matter of General Accounting
Office access to Air Force Inspector General’s reports. In that
context, my attention has been directed to your press conference
comments of November 5, and to some newspaper speculation about
those comments.
The text of your remarks to which I refer is as follows:
“Q. (Clark R. Mollenhoff, Des Moines Register). Mr. President, you
have mentioned the spending in the Defense Department here as one
of the important issues, and the General Accounting Office, which
is the watchdog on frauds and extravagance in the various agencies,
has been barred from reports over in the Air Force and the Defense
Department generally, and on this they claim that they have
authority from you to withhold reports any time it is ‘inexpedient
to do so.’
“I wonder if you have given that authority and if you feel that
the GAO should have a full rein to go in and investigate all
indications of fraud and extravagance.
“The PRESIDENT. You are obviously talking about some special thing
that I would have to study before I could make—give an answer.
“I have stated this time and again: I believe that every
investigating committee of the Congress, every auditing office,
like the GAO, should always have an opportunity to see official
records if the security of our country is not involved.
“Q. (Clark R. Mollenhoff, Des Moines Register). Well, they claim
this, Mr. President, under executive privilege.
“The PRESIDENT. No, that’s all I have to say—I told you that is all
I had to say for the moment.”
While this question-and-answer exchange did not identify Inspector
General reports, and while you did preface your comment by saying
this obviously referred to some special thing you would have to
study before giving an answer, I would nevertheless like to ask
this: Did you mean to imply by your comments that the complete text
of Inspector General reports, including recommendations, be made
available to Congress and the General Accounting Office?
Respectfully,
CLARE E. HOFFMAN
THE WHITE HOUSE,
_Washington, November 12, 1958._
Hon. CLARE E. HOFFMAN,
_House of Representatives, Washington, D.C._
DEAR MR. HOFFMAN: Thank you for your letter inquiring about
comments in my November 5 press conference.
I believe, of course, that the public, the Congress, and such
auditing units as the General Accounting Office should have
all the information departments and agencies can properly make
available. However, the public interest also demands order and
efficiency in the operation of these departments and agencies.
And in my judgment the public interest is not necessarily served
by divulging the advice, suggestions, or recommendations which
subordinate employees periodically make to their superiors. In this
connection, recommendations of inspectors general have been a most
useful advisory tool in administering the military departments;
and historically, recommendations and other advisory matter in
such reports have not been released. I think this practice is a
correct one, and is in the best interest of the Nation. At the
same time, I want to add that the facts are distinct from advice
and recommendations in these reports. It is my understanding that
all the facts developed in the inspector general’s report to which
you refer are being made available at the request of the General
Accounting Office.
Sincerely,
DWIGHT D. EISENHOWER
UNITED STATES GENERAL ACCOUNTING OFFICE,
OFFICE OF GENERAL COUNSEL,
_Washington, D.C., November 4, 1958_.
MEMORANDUM ON RIGHT OF THE COMPTROLLER GENERAL TO ACCESS TO A
REPORT OF THE INSPECTOR GENERAL OF THE AIR FORCE ENTITLED “SURVEY
OF MANAGEMENT OF THE BALLISTIC MISSILES PROGRAM”
The basic statutory authority of the Comptroller General for access
to records of departments and agencies is set forth in section 313
of the Budget and Accounting Act, 1921 (31 U.S.C. 54). Section 313
provides:
“_All departments and establishments shall furnish to the
Comptroller General such information_ regarding the powers, duties,
activities, organization, financial transactions, and methods of
business of their respective offices _as he may_ from time to time
_require of them_; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine _any_ books, documents, papers, or records of
_any_ such department or establishment. The authority contained in
this section shall not be applicable to expenditures made under the
provisions of section 291 of the Revised Statutes.”
It will be noted that the only exception in section 313 relates to
expenditures made under section 291, Revised Statutes (31 U.S.C.
107), which authorizes the Secretary of State to account for
certain confidential expenditures in connection with intercourse
or treaties with foreign nations by certificate where, in his
judgment, he may think it advisable not to specify the details
of such expenditure. Since that is the only exception stated and
following the legal maxim that the specific setting forth of one
type of exception precludes others from arising, it seems clear
that the Comptroller General may require, and the departments are
required to furnish, documents, etc., as to any other transaction
or activity. Also, the language of section 313 itself [except as
to the expenditures under 291 R. S.] in requiring the departments
to furnish such information as the Comptroller General “may
require of them” and its requirement that he be _given access to
any_ documents of the departments, clearly gives him access to
_all_ such documentation. If he has access to _any_ document, he
has access to _all_. The legislative background of the Budget and
Accounting Act, 1921, makes no qualification as to what records
can be required; the provision itself apparently being considered
sufficiently specific. The legislative reports do bring out that
one of the principal functions of the Comptroller General is to
enable the Congress to be kept advised as to expenditures of
the Government, and that the Comptroller General is expected to
criticize extravagance, duplication, and inefficiency in executive
departments. There is no doubt, in passing the act, the Congress
did not intend that the executive agencies could, or would,
withhold any books, documents, papers, or records needed by the
Comptroller General. Otherwise, the very purpose of the act would
be nullified.
The authority and duty of the Comptroller General was amplified
by section 206 of the Legislative Reorganization Act of 1946 (31
U.S.C. 60), which authorized and directed him to make expenditure
analyses of each agency in the executive branch of the Government
which “will enable Congress to determine whether public funds have
been economically and efficiently administered and expended” and
to make reports thereon from time to time to the Committees on
Government Operations, and Appropriations and other committees
having jurisdiction over legislation relating to the operation
of the agencies involved. The work of the Comptroller General,
together with the activities of the Committees on Government
Operations, were to serve as a check on the economy and efficiency
of administrative management. See pages 6 and 7, Senate Report No.
1400 on the Legislative Reorganization Act of 1946.
The Congress has also directed that the Comptroller General in
performing his duties give full consideration to the administrative
reports and controls of the departments and agencies. The
Government Corporation Control Act specifically provides in
section 301 (a) (31 U.S.C. 866), “That in making the audits ...
the Comptroller General shall, to the fullest extent deemed by him
to be practicable, utilize reports of examination of Government
corporations made by a supervising administrative agency pursuant
to law.” The legislative reports on that act, Senate Report 694,
page 10, contains the following significant language:
“The audit provisions are intended to give the Congress the
independent audit reports of its agent, the Comptroller General,
as to the operations and financial condition of every Government
corporation in which the Government has a capital interest.... If
the audit by the Comptroller General is to be a truly independent
audit, he must not be restricted in such a way as to prevent
him from examining into and reporting the transactions of any
Government corporation to the extent deemed by him to be necessary.
“The Comptroller General has stated that in making his audits he
will give full consideration to the effectiveness of the existing
systems of internal accounts, procedures, and controls and of
external examinations by an administrative supervisory agency.
The bill includes a specific provision requiring the Comptroller
General in making his audits to utilize, to the fullest extent
deemed by him to be practicable, reports of examinations of
Government corporations by a supervising administrative agency
pursuant to law.”
The Budget and Accounting Procedures Act of 1950 requires each
executive agency to maintain systems of accounting and internal
control and provides, in section 117 (a) (31 U.S.C. 67 [a]), that
the Comptroller General in determining auditing procedures and
the extent of examination to be given accounts and vouchers give
consideration to “the effectiveness of accounting organizations and
systems, internal audit and control, and related administrative
practices of the respective agencies.”
The Comptroller General is required to audit the activities of the
executive departments and agencies; to make expenditure analyses
to determine whether funds have economically been expended; and to
give consideration to the departments’ internal audit and control
and related administrative practices. To perform these duties he is
given the clear statutory authority to require information of the
departments and agencies regarding their organization, activities,
and methods of business, coupled with the right to access to _any_
books, documents, papers, or records of any such establishment
(except as to the confidential State Department funds).
There have been no court cases construing the statutes giving
the Comptroller General access to records. However, in 1925, the
Attorney General in an opinion to the Secretary of War (34 Op.
Atty. Gen. 446), concerning a request by the Comptroller General
for information relative to an award of a contract showing that
the lowest bid was accepted, or if otherwise, a statement for the
reasons for accepting other than the lowest bid, advised, in part,
as follows:
“It will be observed that the Comptroller General states that this
requirement is made necessary in order that a satisfactory audit
may be made. What papers or data he should have to make such an
audit would seem to be a matter solely for his determination.
Moreover, section 313 of the Budget and Accounting Act provides (p.
26):
“All departments and establishments shall furnish to the
Comptroller General such information regarding the powers, duties,
activities, organization, financial transactions, and methods
of business of their respective offices as he may from time to
time require of them; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine any books, documents, papers, or records of any
such department or establishment....”
Questions as to whether the General Accounting Office has a right
to access to records claimed to be confidential for security
or other reasons have arisen from time to time and the General
Accounting Office has always taken the position that it has the
right to the information, even though certain provisions of law
relating to disclosure might be applicable to it.
The General Accounting Office recognizes that certain of the
functions of the inspectors general, such as criminal and personnel
investigations, are of a confidential nature and it will normally
accept summaries of facts contained in such reports to the
extent they are needed in connection with its work. However, the
inspectors general also have as a part of their respective missions
and duties responsibility for conducting inspections, surveys,
and examinations of the effectiveness of operations and overall
efficiency of a command, installation, or activity. These functions
may be performed on a periodic or special basis as directed by
competent authority. The performance of these functions constitutes
an important part of the process of management evaluations and
internal reviews as distinguished from criminal or personnel
investigations. They provide officials and appropriate personnel
of authority with an independent appraisal of the effectiveness of
operations and overall efficiency. Moreover, a very considerable
part of the inspections and reviews made by the inspectors general
involve reviews of procedures and policies and as such are an
important segment of the internal reviews and control which the
General Accounting Office, under section 117 (a) of the Budget
and Accounting Procedures Act of 1950 is required to consider and
recognize in determining the audit procedures to be followed in its
reviews.
The scope of inspection and survey programs of the inspectors
general is similar in character to much of the work the General
Accounting Office has scheduled in requirements, procurement,
supply management, and research and development areas. The
programs of the Deputy Inspector General for Inspection of the
Air Force covering the period July 1, to December 31, 1958,
include (1) a survey of Air Force procurement methods (advertising
versus negotiation); (2) a survey of procurement quantitative
and qualitative program changes; (3) a survey of procurement of
commercial communications and utility services; (4) a survey of
contract cost overruns; (5) a survey of maintenance programs;
(6) a survey of modification programs; (7) a survey of the
application of electronic data processing systems and other like
subjects. All of these subjects represent internal and management
evaluations which would clearly be a part of “internal audit and
control” within the meaning of section 117 (a) of the Accounting
and Auditing Act of 1950. It is essential that such reports be made
available to the General Accounting Office in order that it can
evaluate the effectiveness of the department’s system of internal
control and to preclude unwarranted and unnecessary duplication
of effort in the internal audit and the independent review made
by this Office. The Air Force Inspector General’s report on the
ballistic missiles program clearly falls within the term “internal
audit and control.”
The Secretary of the Air Force in refusing the Comptroller General
access to the Inspector General’s report on the ballistic missiles
program stated that the Inspector General’s reports are prepared
solely for the use of responsible officials within the Air Force,
and that the objective of self-criticism can be obtained only if
the Inspector General’s organization has the assurance that its
reports will, without exception, be kept within the Department.
The Secretary also stated that the report in question concerned
the internal management of the Department, and was prepared solely
for the benefit and use of those officers and employees of the
Department who are responsible for its administration, and that
the release of such reports to persons outside the Department
would have a serious effect on the effective administration of
the Department. The Secretary concluded that these considerations
compelled him to conclude that the public interest would best be
served by not releasing the report.
It is our understanding that the position of the Secretary is
premised on paragraph 151 (b) (3) of the Manual for Courts Martial
(1951) which was prescribed by the President on February 8, 1951,
through Executive Order 10214, pursuant to the act of May 5,
1950 (64 Stat. 107), and on the general basis that the heads of
executive departments have the right to withhold information or
papers which they deem confidential, in the public interest.
The Manual for Courts Martial, 1951, Executive Order 10214, dated
February 8, 1951, was issued pursuant to article 36 of the act of
May 5, 1950 (64 Stat. 120). Article 36 (a) provides:
“The procedure, including modes of proof, in cases before
courts-martial, courts of inquiry, military commissions, and
other military tribunals may be prescribed by the President by
regulations which shall, so far as he deems practicable, apply the
principles of law and the rules of evidence generally recognized in
the trial of criminal cases in the United States district courts,
but which shall not be contrary or inconsistent with this code.”
Article 151 (b) (3) of the Manual for Courts Martial provides:
“The Inspectors General of the various armed forces, and their
assistants, are confidential agents of the Secretaries of the
military or executive departments concerned, or of the military
commander on whose staff they may be serving. Their investigations
are privileged unless a different procedure is prescribed by
the authority ordering the investigation. Reports of such
investigations and their accompanying testimony and exhibits are
likewise privileged, and there is no authority of law or practice
requiring that copies thereof be furnished to any person other than
the authority ordering the investigation or superior authority.
However, when application is made to the authority by court-martial
certain testimony, or an exhibit, accompanying a report of
investigation, which testimony or exhibit has become material
in a trial (to show an inconsistent statement of a witness, for
example), he should ordinarily approve such application unless the
testimony or exhibit requested contains a state secret or unless
in the exercise of a sound discretion he is of the opinion that
it would be contrary to public policy to divulge the information
desired.
“In certain cases, it may become necessary to introduce evidence
of a highly confidential or secret nature, as when an accused is
on trial for having unlawfully communicated information of such a
nature to persons not entitled thereto. In a case of this type, the
court should take adequate precautions to insure that no greater
dissemination of such evidence occurs than the necessities of the
trial require. The courtroom should be cleared of spectators while
such evidence is being received or commented upon, and all persons
whose duties require them to remain should be warned that they are
not to communicate such confidential or secret information....”
Since the Manual for Courts Martial was issued pursuant to the
authority of the President to prescribe procedure for such trials,
and Article 151 (b) MCM by its language is addressed to procedures
of such courts, it obviously does not affect access by the General
Accounting Office to Inspector Generals reports determined by the
Comptroller General to be necessary to the performance of his work,
particularly where the report requested is not one dealing with
personnel or criminal investigations.
Air Force Regulation 120-3, paragraph 9, October 11, 1954, and
similar regulations provide:
“Disclosure of or access to matters pertinent to an inquiry or
investigation will be limited to persons whose official duties
require such knowledge. The Manual for Courts Martial, 1951, states
that inspector-general investigations are privileged information.
The same privileged status applies to inquiries and investigations
conducted under this Regulation. Also paragraph 3, AFR 190-16,
29 July 1954, excludes investigative reports and reports of
inspectors general and base inspectors from release to the public
as information. Reports by investigators will not be released or
disclosed outside the Air Force without approval of the Secretary
of the Air Force.”
Presumably these regulations were issued pursuant to section 161,
Revised Statutes, title 5, United States Code, section 22, or
similar authority, authorizing the head of a department to issue
regulations, _not inconsistent with law_, for the conduct of his
department and the custody and use of its records. Since under
section 313 of the Budget and Accounting Act the Secretary is
required to give the Comptroller General access to the records, any
construction of the Air Force regulation denying the Comptroller
General access is improper, and the regulation to that extent,
being inconsistent with law, has no effect.
With reference to the right or privilege of the head of the
“Executive” branch of the Government to refuse to the legislative
and judicial branch of the Government free access to records in the
custody of the executive departments, support for such claim of
right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty.
Gen. 45, and cases referred to therein.
Assuming, arguendo, that such right or privilege does exist, we
do not believe it warrants an executive agency denying to the
Comptroller General information or access to its documents in view
of section 313 of the Budget and Accounting Act which clearly
provides that “all departments ... shall furnish ... information
...” required by the Comptroller General and that he shall have
“access to and the right to examine any ... documents of any such
department....” The opinion of the Attorney General in 1925, 34
Op. Atty. Gen. 446, discussed earlier, clearly recognizes the
prerogative of the Comptroller General to determine what papers he
should have to enable him properly to perform his audits and that
the departments are required to furnish them.
The right or privilege asserted from time to time by the executive
branch was considered in a study by the staff of the House
Committee on Government Operations entitled “The right of Congress
to obtain information from the Executive and from other agencies
of the Federal Government,” committee print dated May 3, 1956, and
in great detail by the House Committee on Government Operations
in connection with Public Law 85-619 approved August 12, 1958, as
were the court cases cited and relied upon by the Attorney General.
See House Report No. 1461, 85th Congress, 2d session. Also, there
was there considered a line of later decisions starting with
_McGrain_ v. _Daugherty_, 273 U. S. 135 (1927) which upheld the
power of Congress to require information sought for legislative
purposes. None of the cases relied upon by the Attorney General
involved demands by the Congress for information from the executive
agencies. This was considered in a study on the matter furnished
the committee by the Attorney General. See page 2938 of the
printed hearings before a subcommittee of the House Committee on
Government Operations on June 20 and 22, 1956, on “Availability of
Information from Federal Departments and Agencies” wherein after
citing and quoting from numerous court decisions he stated “None of
the foregoing cases involved the refusal by a head of department to
obey a call for papers or information. There has been no Supreme
Court decision dealing squarely with that question.”
As indicated, the precise question of whether the Congress has a
right to obtain information from the Executive which it refuses
to furnish because of its confidential nature has not been the
subject of a court decision. Where information sought by Congress
by an executive department has been refused, the Congress has,
at times, succeeded in bringing sufficient pressure to bear to
obtain the information, or the executive department has, upon
reconsideration, relented and furnished it. At other times the
Congress has not pressed the matter—possibly because of its feeling
that the President was in such a position that he should know
whether the information should be withheld, or that the Congress
had no machinery to force his compliance—and the information was
not furnished. But, regardless of whether such right or privilege
exists, it is clear that the Congress in passing on future
appropriations and other legislation has a right to know whether
the funds appropriated are being properly and efficiently used for
the purposes it intended and that any information available in that
regard should be available to the Comptroller General.
In view of the above, and in the absence of any judicial
determination specifically dealing with the rights of the
Comptroller General under section 313, we do not believe that the
position of the Secretary of the Air Force that the report in
question can be legally withheld is proper.
ROBERT F. KELLER, _General Counsel_
_Letter from the Attorney General to the President_
_December 22, 1960_
The PRESIDENT,
_The White House_.
DEAR MR. PRESIDENT: You have requested my advice whether, under
the Constitution and laws of the United States, you have the
authority as Chief Executive to issue the two attached directives
to, respectively, the Secretary of State and the Secretary of the
Treasury, concerning the availability of mutual security program
funds for the expenses of the Office of the Inspector General and
Comptroller established under section 533A of the Mutual Security
Act of 1954, as amended.
In an opinion I have furnished you at your request, I have
advised you of my conclusions that: First, the view taken by
the Comptroller General in his letter of December 8, 1960, that
the proviso contained in section 533A(d) of the Mutual Security
Act of 1954, as amended, has operated to cut off the funds here
in question, is erroneous. Second, that if this view of the
Comptroller General as to the meaning of the proviso is correct,
the proviso is unconstitutional. Third, that therefore, despite the
Comptroller General’s letters of December 8, 1960, and December 13,
1960, these mutual security program funds continue to be available
as heretofore for the expenses of the Office of the Inspector
General and Comptroller. The reasons for these conclusions are set
forth at length in my opinion.
Your directives to the Secretaries of State and the Treasury are,
you advise me, in your judgment desirable to insure that mutual
security program funds will be available until the end of your term
of office on January 20, 1961, as heretofore for the expenses of
the Office of the Inspector General and Comptroller. Under these
circumstances, I am of the opinion that you, as Chief Executive,
have the authority to issue the directives.
Respectfully,
WILLIAM P. ROGERS,
_Attorney General_
_Opinion of the Attorney General of the United States Dated December
19, 1960_
MUTUAL SECURITY PROGRAM—CUTOFF OF FUNDS FROM OFFICE OF INSPECTOR
GENERAL AND COMPTROLLER
Section 533A(d) of the Mutual Security Act of 1954 added by
section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253),
which directs that the expenses of the Office of the Inspector
General and Comptroller with respect to programs under the Mutual
Security Act be charged to the appropriations made to carry out
such programs, _provided_ that all documents, reports, and other
materials relating to the operations and activities of that Office
are furnished upon request to the General Accounting Office, or
to any appropriate congressional committee or duly authorized
subcommittee, does not authorize the funds of the Office of the
Inspector General and Comptroller to be cut off because of the
failure of the State Department to furnish certain documents
relating to that Office to a congressional subcommittee, if the
President has issued a certificate pursuant to section 101(d) of
the Mutual Security and Related Agencies Appropriation Act, 1961
(74 Stat. 778), to the effect that he has forbidden the production
of those documents and states his reasons for so doing. A contrary
conclusion reached by the Comptroller General is incorrect, and,
therefore, funds continue to be available as heretofore for the
Office of the Inspector General and Comptroller.
The proviso in section 533A(d) does not expressly authorize the
funds of the Office of the Inspector General and Comptroller to
be cut off, and such a drastic consequence should not lightly be
inferred from ambiguous statutory language. Other provisions of the
Mutual Security Act of 1959, the Mutual Security Act of 1960 (74
Stat. 134), the Mutual Security and Related Agencies Appropriation
Act, 1960 (73 Stat. 717), and the Mutual Security and Related
Agencies Appropriation Act, 1961, indicate a congressional purpose
not to compel the disclosure of information concerning the mutual
security program which the President considers to be incompatible
with the security of the United States. Section 533A(d) should be
read in the light of this purpose.
Section 533A(d) has been suspended by section 101(d) of the
Mutual Security and Related Agencies Appropriation Act, 1961,
which provides that the failure to furnish documents, etc., to
Congress or to the Comptroller General will not result in a cutoff
of appropriated funds if the President certifies that he has
prohibited the production of the documents and states the reasons
for this action.
A construction of the proviso to section 533A(d), requiring funds
for the Office of the Inspector General and Comptroller to be
cut off for failure to supply documents, notwithstanding the
President’s certification, must be avoided because it not only
creates constitutional doubts, but would, if correct, render the
proviso unconstitutional. Congress cannot by direct action compel
the President to furnish to it information the disclosure of which
he considers contrary to the national interest. It cannot achieve
this result indirectly by placing a condition upon the expenditure
of appropriated funds.
APPENDIX D
_Letter from President Kennedy to the Secretary of Defense_
_February 8, 1962_
DEAR MR. SECRETARY: You have brought to my attention the fact
that the Senate’s Special Preparedness Investigating Subcommittee
intends to ask witnesses from your department to give testimony
identifying the names of individuals who made or recommended
changes in specific speeches.
As you know, it has been and will be the consistent policy of
this administration to co-operate fully with the committees of
the Congress with respect to the furnishing of information. In
accordance with this policy, you have made available to the
subcommittee 1500 speeches with marginal notes, hundreds of
other documents and the names of the fourteen individual speech
reviewers, eleven of whom are military officers. You have also made
available the fullest possible background information about each of
these men, whose record of service and devotion to the country is
unquestioned in every case; and you have permitted the committee
staff to interview all witnesses requested and to conduct such
interviews outside the presence of any departmental representative.
Finally, you have identified the departmental source of each
suggested change, and offered to furnish in writing an explanation
of each such change, and the policy or guideline under which it was
made.
Your statement that these changes are your responsibility, that
they were made under your policies and guidelines and those of
this administration and that you would be willing to explain
them in detail, is both fitting and accurate, and offers to the
subcommittee all the information properly needed for purposes
of its current inquiry. It is equally clear that it would not
be possible for you to maintain an orderly department, and
receive the candid advice and loyal respect of your subordinates,
if they—instead of you and your senior associates—are to be
individually answerable to the Congress as well as to you for their
internal acts and advice.
For these reasons, and in accordance with the precedents on
separation of powers established by my predecessors from the
first to the last, I have concluded that it would be contrary
to the public interest to make available any information which
would enable the subcommittee to identify and hold accountable
any individual with respect to any particular speech that he has
reviewed. I therefore direct you, and all personnel under the
jurisdiction of your department, not to give any testimony or
produce any documents which would disclose such information; and I
am issuing parallel instructions to the Secretary of State.
The principle which is at stake here cannot be automatically
applied to every request for information. Each case must be judged
on its own merits. But I do not intend to permit subordinate
officials of our career services to bear the brunt of congressional
inquiry into policies which are the responsibilities of their
superiors.
Sincerely yours,
JOHN F. KENNEDY
APPENDIX E
_Executive Privilege Correspondence between President Kennedy and
Congressman John E. Moss_
February 15, 1962
_The Honorable
John F. Kennedy
The President of the United States
The White House
Washington, D.C._
Dear Mr. President:
In your letter of February 8, 1962 to Secretary McNamara
you directed him to refuse certain information to a Senate
Subcommittee. The concluding paragraph of your letter stated:
“The principle which is at stake here cannot be automatically
applied to every request for information. Each case must be
judged on its merits.”
A similar letter from President Eisenhower on May 17, 1954 also
refused information to a Senate Subcommittee, setting forth the
same arguments covered in your letter. President Eisenhower did
not, however, state that future questions of availability of
information to the Congress would have to be answered as they came
up.
I know you are aware of the result of President Eisenhower’s
letter. Time after time Executive Branch employees far down the
administrative line from the President fell back on his letter of
May 17, 1954 as authority to withhold information from the Congress
and the public.
Some of the cases are well known—the Dixon-Yates matter and the
investigation of East-West trade controls, for instance—but many
of the refusals based on President Eisenhower’s letter of May 17,
1954 received no public notice. A report of the House Committee
on Government Operations covering the five years from June, 1955
through June, 1960 lists 44 cases of Executive Branch officials
refusing information on the basis of the principles set forth in
the May 17, 1954 letter.
I am confident that you share my belief that your letter of
February 8, 1962 to Secretary McNamara should not be seized upon
by Executive Branch employees—many of them holding the same
policymaking positions of responsibility they did under the
Eisenhower Administration—as a new claim of authority to withhold
information from the Congress and the public. A Subcommittee staff
study indicates that during the year between the time you took
office and February 8, 1962 the claim of an “executive privilege”
to withhold government information was not used successfully once,
compared to the dozens of times in previous years administrative
employees held up “executive privilege” as a shield against public
and Congressional access to information.
Although your letter of February 8, 1962 stated clearly that
the principle involved could not be applied automatically to
restrict information, this warning received little public notice.
Clarification of this point would, I believe, serve to prevent the
rash of restrictions on government information which followed the
May 17, 1954 letter from President Eisenhower.
Sincerely,
/s/ John E. Moss
Chairman
THE WHITE HOUSE
_Washington_
_March 7, 1962_
Dear Mr. Chairman:
This is in reply to your letter of last month inquiring generally
about the practice this Administration will follow in invoking the
doctrine of executive privilege in withholding certain information
from the Congress.
As your letter indicated, my letter of February 8 to Secretary
McNamara made it perfectly clear that the directive to refuse
to make certain specific information available to a special
subcommittee of the Senate Armed Services Committee was limited
to that specific request and that “each case must be judged on its
merits.”
As you know, this Administration has gone to great lengths to
achieve full co-operation with the Congress in making available to
it all appropriate documents, correspondence and information. That
is the basic policy of this Administration, and it will continue
to be so. Executive privilege can be invoked only by the President
and will not be used without specific Presidential approval.
Your own interest in assuring the widest public accessibility
to governmental information is, of course, well known, and I
can assure you this Administration will continue to co-operate
with your subcommittee and the entire Congress in achieving this
objective.
Sincerely,
/s/ JOHN F. KENNEDY
Honorable John E. Moss
Chairman
Special Government Information
Subcommittee of the Committee
on Government Operations
House of Representatives
Washington, D.C.
Transcriber’s Notes
pg 27 Changed: political figures organized a constuction
to: political figures organized a construction
pg 57 Changed: records or testify even when suppoenaed
to: records or testify even when subpoenaed
pg 81 Changed: effective administration that employes
to: effective administration that employees
pg 164 Changed: and Hardy decided to to try
to: and Hardy decided to try
pg 238 Changed: executive privilege in withholdng
to: executive privilege in withholding