CHAPTER VIIISecrecy Hides the Security Bunglers
By the spring of 1955, enough executive agencies were refusing records to Congress that Representative William Dawson, the Illinois Democrat who served as chairman of the House Government Operations Committee, had become concerned.
On June 9, 1955, Representative Dawson wrote to Representative John E. Moss, the young California Democrat, formally establishing a Government Information Subcommittee and asking that Moss be chairman. Congressman Moss was only in his second term in Congress, and normally would not have been assigned chairmanship of a subcommittee unless it appeared relatively unimportant as a vehicle for publicity.
“Charges have been made that Government agencies have denied or withheld pertinent and timely information to the newspapers, to radio, and television broadcasters, magazines, and other communication media, to trained and qualified research experts and to the Congress,” Congressman Dawson wrote.
“An informed public makes the difference between mob rule and democratic government. If the pertinent and necessary information on governmental activities is denied the public, the result is a weakening of the democratic process and the ultimate atrophy of our form of government.”
Moss took the assignment immediately but waited fivemonths before starting what was to become the committee’s five-year struggle with the Eisenhower administration.
Although the investigation ultimately became involved almost exclusively in trying to break down the barrier of “executive privilege,” it started out on general information policy problems. At the time of the first hearing (November 5, 1955) there was only a handful of observers greatly concerned over “executive privilege.” James S. Pope, executive editor of the LouisvilleCourier-Journal, J. Russell Wiggins, executive editor of the WashingtonPost and Times Herald, and Harold L. Cross, special counsel for the American Society of Newspaper Editors, were among those who shared my worry.
James (Scotty) Reston, Washington correspondent for The New YorkTimes, had recently expressed concern over “managed news.” He objected to “the conscious effort” to give news emanating from the Geneva Conference “an optimistic” flavor.
“After the Geneva smiling, the new word went out that it might be a good idea now to frown a little bit, so the President made a speech at Philadelphia, taking quite a different light about the Geneva Conference,” Reston said. “That is what I mean by managing the news.”
I didn’t like “managed news” any better than Reston, but I believed that the arbitrary secrecy of “executive privilege” was the core of the problem. There would be “managed news” as long as executive departments and independent regulatory agencies were able to invoke an arbitrary secrecy to prevent the press and Congress from reviewing the record—and as long as newspapers indolently accepted the management.
The Moss subcommittee gave me an excellent chance to state my views the first day of its hearings. I began my testimony with a review of the history of the May 17, 1954, letter and the Army-McCarthy hearings.
“Since that time,” I stated, “seventeen departments of the Government have used this letter as a precedent for withholding actual decisions of the government. Conversations and documents used in arriving at decisions are regarded as confidential, and the Congress and reporters alike are denied information.”
I pointed out that the American Civil Liberties Union had filed a complaint against the use of “executive privilege” by subordinates of executive agencies. And I commented that it was startling to find Senator McCarthy and the American Civil Liberties Union together on an issue.
“I think this demonstrates that this is not something political,” I said. “The party in power may gain some kind of a temporary advantage from hiding the record, but in a long-time advantage, for both parties, it is best to try to make a full disclosure of what goes on in government.”
In answer to questions I said I did not object to specific legislation to cover areas of government where secrecy was essential. I emphasized that “if the record of the government must be confidential, it is not too much to ask the executive department to give a reason. Democrats and Republicans in Congress have an equal interest in obtaining ... the whole story, all of the information behind the decisions of the executive agency.”
The next week, the Moss subcommittee on Government Information began calling the long roll of witnesses from the Post Office Department, the Agriculture Department, the Treasury Department, and the Civil Service Commission. The first task was to try to establish from reports and testimony just what the information practices of each of these departments were.
A few months of work revealed to Chairman Moss and his staff a tendency toward “a flexible policy” in many departments. A department might refuse to produce information on one ground, and then jump to another reason when the firstbecame untenable. I knew that some press officials were poorly schooled as to what should and should not be made available, and that they made up the rules as they went along. If the Moss subcommittee had done no more than establish a written record on the laws and regulations being used for information policies its effort would have been worthwhile. Fortunately it did a lot more.
By the end of the first week of hearings the subcommittee staff (Staff Director Samuel J. Archibald, Chief Counsel Wallace J. Parks, and Special Counsel Jacob Scher) had already gathered a large collection of rules and regulations on information. Also, they had inserted in the record a copy of a Joint Resolution, No. 342, passed by the House of Representatives on May 13, 1948—a not-so-gentle reminder.
The Republican Eightieth Congress of 1948 had been so irritated at the Truman administration for its refusal to make records available to Congress that it passed a resolution directing “all executive departments and agencies of the Federal Government created by Congress” to furnish “such information, books, records and memoranda” as was demanded by a majority vote in any properly authorized committee of Congress.
At the time of that dispute in 1948, such leading Democrats as John W. McCormack, of Massachusetts, and William L. Dawson, of Illinois, defended the Truman administration for refusing to make available a Commerce Department investigative report on Dr. Edward U. Condon, director of the National Bureau of Standards.
President Truman had issued an executive order in which he stated that “efficient and just administration of the employee loyalty program ... requires that reports, records, and files relative to the program be preserved in strict confidence.”
Even though this was a specific executive order, and limited to investigative reports and personnel files, the Republicanswere outraged at being denied access to all information on cases under investigation by Congress.
However, in 1955, when the tables had turned, the Republicans used the same basic arguments the Democrats used in 1948. The Republicans, moreover, were having to defend a far more widespread withholding of records.
During this dispute, I examined the 1948 records of the Senate on an investigation of a loyalty case involving William Remington, another Commerce Department official. William P. Rogers had been chief counsel for the committee investigating the Remington case, and had been in charge of preparing the Senate subcommittee report that castigated the Truman administration for arbitrary and unjustified secrecy in withholding personnel investigation files. In those reports, Rogers had likened withholding information from Congress to keeping the seeing-eye dog from a blind man.
This was the same William P. Rogers who was appointed Deputy Attorney General in the first term of the Eisenhower administration, and who later became the Attorney General and the leading spokesman for the ultimate in “executive privilege.”
In his early days in the Justice Department, I saw Bill Rogers on a number of occasions and pointed out the inconsistency of his positions. I asked him how he could be such a caustic critic of secrecy in the Truman administration, and then suddenly switch to being a leading advocate of such total arbitrary secrecy as used by the Eisenhower administration in its stretched claim of “executive privilege.”
“When you can show me that some crime or wrongdoing is being covered up, come up and see me,” Rogers said.
I tried to reason with him, explaining that there were no laws and no judicial decisions to support so absurd a claim to an arbitrary right to withhold information. Rogers became jocular and said I was taking the whole business too seriously. He said that if there were serious cases he would examinethem. He laughed off my suggestion that the cases then available were serious and some day in the future could be used as precedent to bury Democratic scandals from Republicans.
Rogers said that newspaper editorials had been in favor of the May 17, 1954, letter when it was issued, and that there was little support on my side. I stuck to my argument that he was contradicting his own position of six or seven years earlier. But it was no use to try to argue with him. I left him to do his explaining later to the Moss subcommittee and other congressional committees.
On May 8, 1956, the Moss subcommittee on Government Information heard testimony from Bernard Schwartz, professor of law and director of the Institute of Comparative Law at New York University; Hugh Fulton, former chief counsel for the Truman committee; and Harold L. Cross, special counsel for the American Society of Newspaper Editors.
Fulton, after an exhaustive statement on the problem of arbitrary withholding by the executive agencies, concluded that the efforts to impair the investigative power of Congress “hampers the legislative powers and imperils democracy as we know it.”
Harold Cross, who had been practicing law since 1912, had also served for twenty-five years as a professor of newspaper law in the Graduate School of Journalism, Columbia University. I had known him for some years through work on projects for the American Society of Newspaper Editors.
In his testimony, Cross struck at the legal basis of the memorandum of Attorney General Herbert Brownell that had accompanied the May 17, 1954, letter.
“Some of the findings of the memorandum ... are accurate,” Cross said. [But] “the underlined part of the statement is merely an assertion by the Attorney General. It is at direct variance with pertinent court rulings.
“These cases, and others, are cited to this subcommittee as blanket authority for withholding information. They are cited as establishing in Federal officials, subordinates as well as heads, an inherent right to withhold information—not only from the public and press and individual Congressmen, but also from Congress itself and its committees. They are cited as establishing rights to withhold that are final and not subject to judicial review.
“Moreover,” Cross said, “these Attorney General opinions, which cite no judicial authority, are inaccurate, are at direct variance with pertinent court rulings.”
Cross concluded that Brownell’s “inaccurate” legal rulings “are both cited and applied as if they were Holy Writ to suppress information which this Congress needs in order to legislate, which the press needs in order to perform its functions and which citizens need in order to maintain a self-governing society.”
It was inspiring to have such a clear statement and such an exhaustive study from Harold Cross. He was highly respected by the editors of the American Society of Newspaper Editors, and I was certain that his logic would soon convince many editors of the wisdom of a united opposition to the unbridled claim of “executive privilege.”
Now came my first meeting with Bernard Schwartz, then only thirty-three years old but already a recognized authority in the fields of constitutional and administrative law. The testimony of this short, dark-haired professor with the heavy glasses was clear, well documented, restrained. His condemnation of the May 17, 1954, letter was altogether effective.
The letter claimed, Schwartz said, that the executive agencies had “the absolute privilege and discretion” to withhold information from Congress and the public.
“Those who assert that the law is settled in favor of an unlimited right in the Executive ... do so out of an excessof executive zeal but without any real basis in fact, or in law for that matter.
“There is no statute or judicial decision which justifies the extreme pretensions of privilege consistently maintained by executive officials,” Schwartz said.
“It is true that there is a long history of executive refusals to comply with congressional investigative demands and that these refusals have often been justified, upon supposed legal grounds, by opinions of the Attorney General,” he continued. “Neither opinions of the Attorney General nor the practice of the Executive can justify unwarranted distortions of the Constitution.... Nor does a governmental practice conceived in error become elevated to the plane of legality merely because the error has been long persisted in.”
Schwartz called attention to arguments that Congress was abusing its investigative power, and commented: “To this writer, indeed, the overriding danger is not Congressional abuse but the vesting of unfettered discretion in the Executive to surround with secrecy all its activities.
“Those who are concerned with the possibility of legislative abuse ignore the overriding peril of the present century, that [of] the superstate with its omnipotent administration, unrestrained by any checks on its all-pervasive regulatory activities, so vividly pictured by George Orwell in his novel1984.
“The great danger today is 1984, not Senator McCarthy. If the elected representatives of the people assert their right to lay bare all that goes on within the Executive, that danger may be avoided. An Executive whose abuses and inadequacies are exposed to the public eye can hardly become a menace to constitutional government.”
There had never been any doubt in my mind about the basic problems involved in the executive claim of an unlimited right to withhold information. But it was comfortingto be supported by the exhaustive legal studies of Fulton, Cross, and Schwartz.
This was only the start of an interesting association with Professor Schwartz, who later became a headline figure as a result of his controversial investigation of the independent regulatory agencies.