CHAPTER VAnother Blow at Senator Joe
When the Eisenhower administration took office in January 1953, I had had high hopes that arbitrary government secrecy would be ended. As a candidate, the President had talked much of his interest in open government and had pledged to make all but national security information available to the public. So had the Vice President, Richard M. Nixon.
As late as November 6, 1953, Attorney General Herbert Brownell, Jr., was continuing to stress the Republican party’s interest in eliminating secrecy policies of the Truman administration. In Chicago, before a convention of Associated Press Managing Editors, Brownell said he was “very much aware of the great importance of seeing to it that the obstacles to the free flow of information are kept to an absolute minimum.
“I would like to call attention to some of the procedures which we established,” Brownell said. “At the very outset of the new Administration, we provided that any pardons or commutations of sentence shall be a matter of public record. Throughout the prior Administration, these executive actions were taken secretly, for political purposes and over the objection of the Office of the Pardon Attorney.
“We also started the policy of making a matter of public record matters which our predecessors buried in secrecy, such as settlements of all types of cases which we handle andinvolve monetary considerations, such as tax claims, damage suits and Alien Property settlements. We do not contend that we have achieved perfection in our efforts to provide a full flow of information. But we are working on it and each day find new ways to do our part.”
At this same meeting, Attorney General Brownell announced that President Eisenhower was revoking a much criticized executive order by President Truman dealing with defense information. He said President Eisenhower was issuing a new order which “attains the required balance between the need to protect certain types of defense information, and the need for keeping the citizens of a republic as fully informed as possible concerning what their government is doing.
“President Eisenhower considers the free flow of information from the Government to the people to be basic to the good health of the Nation,” Brownell told the editors. He declared that under the Truman administration there “was a tendency to follow the dangerous policy heretofore used by dictator nations of authorizing government officials to use the term ‘National Security’ indiscriminately, and thereby throw a veil of secrecy over many items which historically have been open to the public in this country.”
The Attorney General said he viewed the new Republican policy as an opportunity to “demonstrate to all the world the vivid contrast between our system of government, which believes in and practices freedom of the press, and the Communist system, which regards the concept of freedom of information as a threat to the continuance of its tyrannical rule.”
Such attitudes in November 1953 were difficult to reconcile with those of May 1954, when the same Attorney General was helping fashion a policy that was more devastating to a free flow of information than simply refusing to give information to the press. The May 17, 1954, letter fromPresident Eisenhower to the Defense Department said in essence that any high officials of the Defense establishment might refuse to produce records or testify even whensubpoenaedby a properly constituted congressional committee that was acting within its jurisdiction.
The Army-McCarthy hearings that had given rise to the famous letter ended on June 17, 1954. However, it was not necessary to wait for the official reports made public on October 30, 1954, to know that Senator McCarthy was finished as a political power—and that the administration would use the “executive privilege” precedent again.
As an aftermath of the Army-McCarthy hearings, a charge was filed that Senator McCarthy had conducted himself in a manner “unbecoming a member of the United States Senate.” And on August 2, 1954, the U. S. Senate decided by the overwhelming vote of 75 to 12 to investigate Senator McCarthy’s conduct.
Senator Arthur V. Watkins, a Utah Republican, was named chairman of the select McCarthy Censure Committee to determine recommendations on Senator McCarthy’s conduct. In barely more than a month Chairman Watkins ran smack into a roadblock of “executive privilege.”
The subject of inquiry was Senator McCarthy’s severe tongue lashing of Brigadier General Ralph Zwicker, of Camp Kilmer, N. J. Major General Kirke B. Lawton, a former commanding general of Fort Monmouth, N. J., refused to testify about conversations with General Zwicker. He claimed “executive privilege” under the May 17, 1954, letter from President Eisenhower.
Edward Bennett Williams, who was serving as counsel for Senator McCarthy, questioned the applicability of the May 17 letter: “Don’t you know, General, that order of May 17, 1954, referred only to the Government Operations Committee and the hearing then in session which was commonly known as the Army-McCarthy hearing?”
General Lawton replied that he had been advised that the May 17 letter “not only applied to the so-called Mundt committee [the Special Committee for the Army-McCarthy hearings] but it applies to this or any other.”
Chairman Watkins excused General Lawton and wrote Defense Secretary Charles E. Wilson asking clarification. Defense Secretary Wilson replied that Generals Lawton and Zwicker would be allowed to testify and produce documents unless their action would be “in violation of national security regulations or a violation of the President’s order of May 17, 1954.”
There could be little doubt now that the Defense Department intended to make the May 17, 1954, letter a part of its basic doctrine with all of the great blanket of secrecy that this would provide. I was now more concerned than ever, for I had hoped that the May 17 letter was the one-shot secrecy claim that so many of my colleagues thought it was. But again the name of Joe McCarthy was mixed up in the investigation, and in 1954 it would have been difficult to get any cool thinking on a subject that remotely touched on the controversial Wisconsin Republican.
Still, I couldn’t help worrying that the new and expanded doctrine of “executive privilege” was just too convenient a cover for those who wished to hide their activities from Congress, the press, or the public. It could be used by the incompetent as well as the corrupt.
This doctrine of an “inherent right” of persons in the executive departments to refuse testimony or documents threatened our whole system of government. It seemed a naked claim of an authority for unlimited secrecy, without regard for laws or the spirit of a democracy. By claiming a right to withhold all information on opinions, conclusions, recommendations, or suggestions, this doctrine could allow the secrecy blanket to be dropped over virtually every document in most agencies, for there are few governmental documentsthat do not contain some opinions or suggestions. It carried within it, in short, the seeds of dictatorship.
It seemed strange to me that this doctrine would be set forth in the administration of a President who would be regarded as one of the mildest Chief Executives, and certainly one of the least inclined toward dictatorial action. I was not worried that President Eisenhower would try to use it as a tool for totalitarianism. But with this doctrine in force a man who was inclined toward totalitarian methods might readily administer the laws as he pleased.