CHAPTER IXSecrecy Curtain on Iron Curtain Deals
While the Moss investigations continued, the Senate Permanent Investigating Subcommittee was accumulating evidence that showed how a relaxation of government controls over shipments of vital and strategic materials had resulted in a sharply increased flow of these materials to the Soviet-bloc countries. In February 1956, Chairman John L. McClellan, the Arkansas Democrat, opened public hearings on the relaxation of controls over East-West trade.
McClellan announced that his staff—headed by Chief Counsel Robert F. Kennedy and Investigator LaVern Duffy—had discovered “evidence that merchants of the free world are helping to build up Russia’s military potential by furnishing it items which are indispensable in constructing or maintaining a war machine.”
In August 1954, representatives of the North Atlantic Treaty Organization nations, plus Japan, had met in Paris in a Coordinating Committee known as COCOM. This committee had downgraded, or otherwise decontrolled, approximately 150 out of 450 strategic items. Items removed from the embargo list included heavy metal-working machinery, electric power generating equipment, minerals, metals, transportation equipment, and petroleum products and equipment.
“Such downgrading and removal [from embargo lists] hasbeen harmful to the security of the non-Communist world,” Chairman McClellan said.
Chief Counsel Kennedy tried to push into the U.S. Government agencies to find out how this relaxation had taken place, and to pin down the responsibility for the action. Excuses of security were given to refuse information, and there were claims that testimony by U.S. officials might interfere with our relations with our allies. When such excuses failed to stand up, the blanket arbitrary secrecy of “executive privilege” was invoked to hide disputes that had taken place in government on the revision of the strategic materials list.
The committee was forced to rely on testimony from persons no longer in government, or on tips from persons in government who contacted investigators quietly because they feared losing their jobs if they co-operated openly.
Thanks to such testimony, it soon became apparent who had changed the strategic materials list to permit shipment of copper, aluminum, precision boring machines, and huge horizontal boring and drilling and milling machines to Iron Curtain countries.
“The downgrading and decontrol of approximately 150 of the items,” the McClellan subcommittee reported, “were recommended by personnel in our own Government agencies on the so-called Joint Operating Committees, contrary to advice of the experts and technicians of the Defense Department and in many instances against the advice of experts in their own agencies.”
There were indications at an early stage of the investigations that the revisions in the embargo list made the whole strategic list a complete farce. Simple jig boring machines were retained on the list as being prohibited from shipment to a potential enemy. However, the revised list allowed the shipment of more modern precision boring machines of much higher strategic value.
Initially the Eisenhower administration policy was not unified in barring access to testimony and records. But, as the subcommittee intensified its investigation, the requests for information ran into a stone wall of opposition from the executive agencies involved—the State Department, Defense Department, Commerce Department, and the Foreign Operations Administration. No one claimed that defense secrets were involved. The executive branch abandoned any pretense and fell back on the arbitrary refusal by simply citing President Eisenhower’s May 17, 1954, letter.
The arrogance of the executive branch was best demonstrated by the letter from Secretary of Commerce Sinclair Weeks to Commerce Department employees. He wrote:
“You are instructed not to testify either in public or executive closed session with respect to any advice, recommendations, discussions and communications within the executive branch respecting any course of action in regard to East-West trade control or as to any information regarding international negotiation with the countries cooperating in East-West trade controls....”
Weeks tried to give some color of law to the claim of executive secrecy by citing three federal court cases, but the subcommittee declared none of the cases cited involved the right to withhold information from congressional committees.
It was Harold Stassen, then a Special Assistant to the President, who balked at giving information in a manner that most galled the subcommittee members.
“Are you willing to give us full, detailed, and complete information?” Chairman McClellan asked Stassen.
Stassen replied: “I am willing to give you, and the executive branch is willing to give you, every bit of information that does not violate one of three considerations: One, security from the standpoint of intelligence; two, the rule on internal executive branch documents ...; three, the detailsof international negotiations which would make our relations with our allies more difficult.”
“Are you willing to give us the list of items that were decontrolled or downgraded?”
“No, I do not have ... those lists now.”
“All right,” McClellan said. “Let me ask you: Are you permitted to testify under the security cloak that is wrapped around Government officials in this matter?”
Stassen declared that McClellan was helping the Communists in revealing material on the strategic materials list.
“You say I am helping the Communists,” McClellan snapped. “The allies, whose position you are defending, Great Britain—I hope our strongest ally—publishes the list so the Communists can see what she will sell, the very items that are today classified from the Congress and the American people.”
Stassen was surprised. “The United Kingdom does not publish the international list, Mr. Chairman, that I know of.”
McClellan picked up some papers and extended them toward Stassen. “Here it is; I hold it in my hand. This is a Board of TradeJournal, October 16, 1954, on which wire, copper wire, is excluded, so they know they can buy it.”
“Would you give it to me, please?” asked Stassen.
Even after Stassen was given the list published by the British, he refused to make the almost identical American list available to the McClellan subcommittee. After a long and unsuccessful effort to obtain information from Stassen, Senator Sam Ervin concluded that the Eisenhower administration was willing to talk a lot but say nothing.
In his slow North Carolina drawl, the gray-haired Democrat elaborated:
“We have had experience here that people in the lower echelons of the executive departments have had their mouths stopped, and we were told that those who were at the higher levels could give us information. But I have come to thisconclusion: That our position is sort of like that of one of my clients, who came in my office one day and said that he wanted to get a divorce from his wife.
“He admitted she was a good woman, a good mother, and a good housekeeper. I said, ‘Well, what in the world do you want to get a divorce from her for?’ He said, ‘Well, she just talks, and talks, and talks, and talks, and talks all the time.’ I said, ‘What does she talk about?’ And he said, ‘Well, she don’t say.’”
Stassen’s refusal to say anything was made all the more appalling by the publication ofThe Inside Story, a book about the Eisenhower administration written by Robert J. Donovan of the New YorkHerald Tribune.
“The contents of the book,” the McClellan subcommittee stated, “are based upon documents, materials, minutes, and other information similar in nature and character to that which this subcommittee has been trying to obtain in the course of discharging its legislative duties and responsibilities.
“The executive branches of the Government have been adamant in refusing to make such information available to this subcommittee, and it is difficult to reconcile such attitude with its willingness to give similar information to private individuals.”
The McClellan subcommittee was not critical of Donovan, but the members were infuriated by the policy inconsistencies. A request was made for Maxwell Rabb, Cabinet Secretary, to appear and explain the reasons and circumstances surrounding the release of information to Donovan.
“Rabb failed and refused to appear,” the subcommittee reported. “Thereafter, a letter was sent to Under Secretary of State [Herbert] Hoover [Jr.], Secretary of Commerce [Sinclair] Weeks, ICA Director [John B.] Hollister, Assistant Secretary of Defense Gordon Gray, calling attention to the fact that material of a confidential nature and relating to theinternal workings of the government at Cabinet and staff levels had been disclosed to a private individual for a commercial purpose, and in the light of these facts, the chairman of the subcommittee again requested that the documents of the Joint Operating Committee, relating to decontrol of strategic materials, be made available to this subcommittee as early as possible.”
The information was not supplied, and the McClellan subcommittee declared that this “suppression of information raises not only the question as to the right of Congress to know, but also the question of the right of the public in a democracy to be informed as to the activities of its government.”
In its reports, the McClellan subcommittee declared that the doctrine of separation of powers as explained in President Eisenhower’s May 17, 1954, letter was totally wrong in asserting the complete independence of the executive branch. The subcommittee quoted from the opinion of Chief Justice William Howard Taft in the Grossman case in which he said:
“Complete independence and separation between the three branches, however, are not attained or intended, as other provisions of the Constitution and the normal operation of government under it easily demonstrate.” The Grossman case set out the various checks the executive, legislative, and judicial departments are specifically granted under the Constitution.
The subcommittee legal report stated flatly that there are no legal cases upholding the claimed “inherent right to withhold information” from Congress.
In another report, the subcommittee also challenged the broad use of the May 17, 1954, letter from Eisenhower to Defense Secretary Wilson. The report quoted from the May 17, 1954, letter:
“You will instruct employees of your Department that inall their appearances before the subcommittee of the Senate Committee on Government Operation regarding the inquiry now before it [Army-McCarthy hearings] they are not to testify....”
“It is clear that this letter was intended to apply specifically to the Army-McCarthy hearings,” the subcommittee report concluded, but the fact was that it had “been cited by twenty or more federal agencies and departments as grounds for refusing information to Congress.”
Chairman McClellan went on the Senate floor to express his concern over the total secrecy that was being clamped on the executive branch.
“The Government agencies acting in concert are doing everything to hinder and hamper the Subcommittee’s efforts to ascertain the facts concerning the relaxation of these controls,” the Senator declared. “Except for some co-operation from the Department of Defense, the information has not been forthcoming. The facts the Subcommittee has developed thus far ... have not been made available or furnished ... by the executive agencies.
“The information we have has been secured from documents and publications of foreign governments, where the information is being freely given out by our allies. That same information in the United States is being withheld by the executive branch of our Government from both the Congress and the American people.”
McClellan declared it is “a farce” how the Battle Act list of strategic materials is withheld from Congress and the people of the United States but is available to the Communist-bloc countries. “They know what they can buy,” he said. “They [the Communist bloc countries] know what they do buy and have bought.
“Can it be ... this classification, this policy of secrecy, this suppression or withholding of the truth is a process or an action designed for hiding of errors, inefficiency and badjudgment of Government officials?” he asked. “I am convinced it is. If not, then why not give the Congress the information and let the American people know the truth?”
Senator Richard Russell, the veteran Georgia Democrat, joined McClellan in denouncing the arbitrary secrecy in the East-West trade investigations. He said it presented “a very shocking picture of the failure of co-operation with the Congress in a field in which we have as direct a responsibility or a greater responsibility than the executive department in attempting to maintain a superiority in arms, in order that we may defend our country.”
Senator Wayne Morse, the Oregon Democrat, also lashed out at the secrecy, and declared that such hiding of government records would justify voting against the whole foreign-aid program.
“We have a right to know what goods foreign-aid countries ship to Russia,” Morse said. “We are not asking for the disclosure of secrets which involve the war plans of our country, [and] which should be kept secret.”
Senator Joseph R. McCarthy and Senator Morse were rarely together on an issue. But on the question of secrecy in the Eisenhower administration, Senator McCarthy lined up with Morse, McClellan, Russell, and such liberals as Senator Paul Douglas (Dem., Ill.) and Senator Thomas Hennings (Dem., Mo.).
“I was extremely critical of the Democrat administration for withholding information from Congress,” McCarthy said in a Senate speech. “During the hearings which the very able Senator from Arkansas has been conducting, I was appalled by the even greater secrecy maintained by the executive branch today. As the years go by the Executive is becoming more and more arrogant and highhanded toward legitimate congressional requests for information.”
By this time I was starting to feel optimistic about breaking the secrecy barrier, for it seemed that political figures of allcomplexions were aroused about the danger it created for a democratic government. Additionally, at this time there came a report, dated May 3, 1956, from the House Government Operations Committee, parent of the Moss subcommittee. It stated that the Eisenhower administration’s claim to an inherent right to secrecy “has never been upheld by the courts. It has been a mere Executiveipse dixit[say so].”
The five-point conclusion of this report seemed to me to be as fine a résumé of the legal situation as I had seen:
“1. Refusals by the President and heads of departments to furnish information to the Congress are not constitutional law. They represent a mere naked claim of privilege. The judiciary has never specifically ruled on the direct problem involved in a refusal by Federal agencies to furnish information to the Congress.
“2. As far as access to information is concerned the courts have not distinguished basically between executive agencies and quasi-legislative or quasi-judicial agencies. Both appear to stand in the same status.
“3. Judicial precedent shows that even the President has been held to be subject to the power of subpena of the courts. While this is so, it may be that the only recourse against the President himself is impeachment if he fails to comply with a subpena of either the courts or the Congress.
“4. Any possible presidential immunity from the enforcement of legal process does not extend to the heads of departments and other Federal agencies. Judicial opinions have never recognized any inherent right in the heads of Federal agencies to withhold information from the courts. The courts have stated that even where the head of the department or agency bases his action on statutory authority the courts will judge the reasonableness of the action in the same light as any other claim of privilege. The courts have held that the mere claim of privilege is not enough.
“5. There is no inherent right on the part of heads of thedepartments or other Federal agencies to withhold information from the Congress any more than they have a right to withhold information from the Judiciary....”
Before the McClellan subcommittee on the Senate side completed its report, a number of voices had been raised in defense of the Eisenhower administration’s secrecy. But they did not seem to be strong voices. Only Senator Karl E. Mundt, the South Dakota Republican, and George H. Bender, the Ohio Republican, signed a minority report on the East-West trade investigation.
Senator Mundt and Senator Bender charged that the report of the five-member majority “is entirely misleading as to the effectiveness of international control of strategic materials.” Although Chairman McClellan had consistently indicated a willingness to take testimony or records in a closed session if a problem of real national security was involved, Mundt and Bender defended the Eisenhower administration’s refusal to make information available on grounds that to testify might help the Communists.
“To make some of this information available in public session would tell the Communist nations about our strategic and short supply, reason for control and decontrol,” the Mundt-Bender report stated. “We would publicize for the benefit of potential enemies the thoughts, recommendations, advice and working papers of subordinates who worked for those in the executive branch who held and exercised action responsibility.”
In years past, Senator Mundt had been highly critical of the secrecy of the Truman administration. Now, however, he said he wished to “disassociate myself from that conclusion” by Senator McClellan that secrecy is being used to cover up “errors, inefficiency and bad judgment.”
“I think at the moment it is purely a political deduction,” Senator Mundt said.
Hardly anyone took Senator Bender’s position seriously for he was generally regarded as a political buffoon. To discredit his support of the Eisenhower administration’s secrecy, the majority report merely quoted from two speeches that Bender had made as a House member in October 1951.
In October 1951, when the shoe had been on the other foot, Bender rose on two occasions to castigate the Truman administration for a censorship of government information.
“Power over the press,” he said, “is the path to dictatorship.”
And:
“What most of us find the most objectionable in the President’s [Truman’s] order is the ease with which it can be used to cover up blunders and incompetence, and the absence of any provision for removing secrecy provisions after the emergency has passed. We may now find our friends in other countries revealing information which we are not permitted to publish or broadcast.”
Bender’s last sentence could not have been more prophetic. The majority report hammered home the prophecy-come-true: “The British have published substantially the same export-control list as that which our Government departments and agencies seek to hide and conceal from the American people.”
On the basis of consistency, reason, and logic the Eisenhower administration’s broad use of “executive privilege” was by now thoroughly discredited. I did not see how President Eisenhower or anyone else could defend it, but I had not taken into account President Eisenhower’s lack of understanding of just what was taking place under the cover of “executive privilege.” The President was exceedingly popular, and there were plenty of people who were willing to use his good name and reputation for honesty as a cover for their own errors, incompetence, misjudgments, or improprieties.