CHAPTER XPressing a Point with Ike
The final reports from the four congressional investigations—a House Government Operations Committee, the Senate Dixon-Yates investigating subcommittee, the McClellan subcommittee on East-West trade, and the Wolf Ladejinsky probe—were all released during the summer of 1956. Each assailed the excessive arbitrary secrecy that had hampered the investigations.
So, once again, at a press conference on September 27, 1956, I raised the problem of arbitrary executive secrecy with President Eisenhower.
“Mr. President,” I said. “At least four Congressional committees in a period of the last few weeks have issued reports that were critical of what they termed excessive secrecy which they felt covered up mismanagement in the operation of the Government.
“Now, these committees contend that there is no court decision backing the broad proposition of executive secrecy, and I wondered if you could tell us if you feel that all employees of the Federal Government, at their own discretion, can determine whether they will testify or will not testify before committees when there is no security problem involved?”
The President’s answer indicated that he was still not aware of the scope of the problem.
“Well, I believe that the instructions are clear, that whenthere is no question of security, national security, involved, that everybody is supposed to testify freely before congressional committees. I will have to look up the regulations, I mean the letters of instruction that have gone out. Primarily, I think this is a function of the department heads and the separate office heads—”
“Well, Mr. President—” I tried to break in to correct him, but he continued.
“I don’t believe that any individual who happens to be, let’s say from a filing clerk on up can by themselves decide what is right for them to tell and what is not right.”
“Mr. President,” I explained. “They used the May 17, 1954, letter that you wrote to Secretary Wilson in the Army-McCarthy hearings as a precedent in this particular case. I wonder if you felt they were misusing it if they use it, say, a clerk or an assistant secretary?”
The President was mildly irked at being pressed to comment on a specific situation. “Now, you give me a very long and involved and detailed question here at a place where I don’t even remember what I wrote to Secretary Wilson at that time. I will have to look it up. If you will put your question ... in to Mr. Hagerty so we can look it up, why, it will be answered.”
I was amazed that the President didn’t have a better grasp of the problem at this late date. Dozens of government officials had been using his name and his letter to Wilson as a justification for refusing to produce records in a number of cases which had been headline news, but he couldn’t remember what his policy was.
On leaving the press conference, I returned to the National Press Building and prepared my question for submission to Jim Hagerty. I drafted the question with care so there could be no confusion as to the points at issue, and delivered it to Hagerty at the White House. The letter follows.
Mr. President: At least four congressional committees have issued reports recently criticizing the executive agencies for what they term “excessive secrecy” that can cover up mismanagement.These committees contend that there are no court decisions to support the broad contention of the “confidential executive business” as set forth in your May 17, 1954, letter to Secretary Wilson in the Army-McCarthy hearings.The committees do not quarrel with your personal right to declare specific acts or communications as “confidential.” They do argue that many subordinate officials are wrongfully using the May 17, 1954, letter to claim that their government actions and communications are “confidential.”Some agencies have stated that Congress is entitled to “only final decisions” of the agency, and has no right of access to papers leading up to the decisions.Do you feel that all employees of the Executive Branch have the discretion to testify or not testify before Congress about their official acts, when no security is involved?At what level does this discretion lodge?If you feel this is a misuse of the precedent, would you clarify this matter on the access to information by the Congress and the press?
Mr. President: At least four congressional committees have issued reports recently criticizing the executive agencies for what they term “excessive secrecy” that can cover up mismanagement.
These committees contend that there are no court decisions to support the broad contention of the “confidential executive business” as set forth in your May 17, 1954, letter to Secretary Wilson in the Army-McCarthy hearings.
The committees do not quarrel with your personal right to declare specific acts or communications as “confidential.” They do argue that many subordinate officials are wrongfully using the May 17, 1954, letter to claim that their government actions and communications are “confidential.”
Some agencies have stated that Congress is entitled to “only final decisions” of the agency, and has no right of access to papers leading up to the decisions.
Do you feel that all employees of the Executive Branch have the discretion to testify or not testify before Congress about their official acts, when no security is involved?
At what level does this discretion lodge?
If you feel this is a misuse of the precedent, would you clarify this matter on the access to information by the Congress and the press?
I knew the question would be answered by Gerald D. Morgan, the White House counsel, and I made several trips to the White House to convince him of the wisdom of limiting the use of “executive privilege” to cases approved specifically by the President.
Morgan seemed to be convinced at that stage that the Eisenhower administration should put some bridle on the unrestrained use of “executive privilege” by officials at all levels. I argued that it was to the advantage of the administration in power to have the congressional committees activelypolicing the agencies, and that there was grave danger of corruption developing in any agency where those in charge felt they could arbitrarily block congressional investigators.
Morgan asked that I send him a memorandum on the proper safeguards against improper use of “executive privilege.” I felt optimistic when I submitted the memorandum to Morgan October 4, 1956, and felt that perhaps the Eisenhower administration was willing to take action publicly to end this arbitrary secrecy.
I had mentioned to Morgan that I had read the article he had written for the CaliforniaLaw Reviewof December 1949, in which he spoke forcefully in support of the power of Congress to compel testimony and production of records.
Morgan’s article, entitled “Congressional Investigations and Judicial Review,” was written when he was an assistant legislative counsel to the House of Representatives. In those years he had been a critic of the Truman administration for excessive secrecy and a strong advocate of the power of Congress to investigate.
In his law review article, Morgan pulled apart the Supreme Court decision inKilbourn v. Thompson, a case decided in 1881. For years this case had cast some doubt on the rights of the Congress to conduct broad investigations to carry out its legislative function. Morgan pointed out thatKilbourn v. Thompsonwas a discredited decision, and that the 1927 case ofMcGrain v. Daughertyupheld the right of congressional committees to compel witnesses to testify and produce records.
The case ofMcGrain v. Daughertyarose out of the Teapot Dome scandal investigation of the 1920s. It was the same case that was cited by various congressional committees in 1956 as authority for insisting on testimony and records from government agencies.
The letter Gerald Morgan wrote me was not what I wanted,and it certainly was inconsistent with the principles he had set forth in his 1949 law review article (see Appendix B). But it did demonstrate some desire to come to grips with the problem. He wrote:
“An employee is not free merely to exercise his own discretion (with regard to testimony and production of documents), 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.”
Inasmuch as the letter suggested that information should be given to committees of Congress unless there was a specific order to the contrary from the President, Congressman John Moss thought it portended an easing of the restrictions on information. At least he hoped it did. How futile was his hope we were soon to see.
Unfortunately, the Congress had to rely to a large extent on the Justice Department in normal moves to take court action against any government officials who refused to give testimony. So, although the case ofMcGrain v. Daughertyupheld the right of Congress to demand testimony and records, there was yet a practical problem involved. Congress had to depend on the good faith of the Attorney General and his top aides to enforce its demand.
A case in point occurred in the summer of 1956 when the Justice Department used the secrecy of “executive privilege” in an effort to block an investigation of a settlement of an antitrust suit. The antitrust suit involved American Telephone and Telegraph (A.T. & T.), and the investigation was being conducted by Representative Emanuel Celler’s antimonopoly subcommittee of the House Judiciary Committee. Chief Counsel Herbert Maletz was instructed by Celler to obtain the Justice Department files to determine the facts leading up to the settlement of the A.T. & T. antitrust suit.
The suit had been initiated by the Department in 1949 forthe purpose of forcing a divorce of A.T. & T. and its subsidiary, Western Electric. The separation was urged to break the near monopoly that Western Electric enjoyed in the production of telephone equipment.
The suit had been hailed by Attorney General Herbert Brownell as a great victory for the government, but he and Deputy Attorney General William P. Rogers claimed “executive privilege” and refused to make the files available. They covered up the fact that the settlement allowing A.T. & T. to continue the ties with Western Electric was made over the opposition of staff members in the Justice Department.
Although Herbert Maletz was blocked from examining the files of the Justice Department, he managed to obtain much of the information he sought from the files of A.T. & T. and from records in the Defense Department. This outside probe uncovered some interesting things that Justice Department secrecy had hidden. It showed that a high official of A.T. & T. had written a letter which Defense Secretary Charles E. Wilson sent to the Justice Department urging settlement of the antitrust suit on terms favorable to A.T. & T. The investigation also revealed the conversations between Attorney General Brownell and a lawyer for A.T. & T. that paved the way to settlement.
Because “executive privilege” blocked the Celler subcommittee from questioning Justice Department employees, it was necessary to subpoena a former official of the Justice Department to establish that Brownell’s settlement was actually opposed by the working staff in the Antitrust Division. But who could override Brownell, the President’s chief legal adviser? The investigation stopped at the door of his office.
The Celler antimonopoly subcommittee of the House Judiciary Committee ran into “executive privilege” again when it started to investigate the operations of the Business Advisory Committee (BAC) and the Department of Commerce.
Chairman Celler, an aggressive New York Democrat, was concerned over the way the BAC was influencing policy in the Department of Commerce. He questioned whether there were adequate safeguards against the misuse of such a committee. Without the safeguards, it could become a device for getting competitors together for price fixing or other violations of the antitrust laws.
Chief Counsel Maletz, under directions from Celler, asked for the minutes of the meetings of the BAC and the details of the operations. The subcommittee requests were rejected by Commerce Secretary Sinclair Weeks on grounds that the BAC minutes were “confidential” business of the executive branch of government.
Chairman Celler then argued that the BAC was a private committee, not supported by government funds and not a government agency. He denied that any “executive privilege” existed and declared that if it did exist, Secretary Weeks could not use it properly to try to cover up the activities of a private group that happened to give some advice to a department of government.
Commerce Secretary Weeks replied that BAC was a government committee, and that the minutes of BAC meetings therefore were covered by an “executive privilege.”
Presumably the Celler antimonopoly subcommittee would have been allowed access to the minutes of the BAC if Weeks had considered it a private business group. But in order to put those minutes out of the reach of congressional inquiry Secretary Weeks was forced to the ludicrous position of claiming that the private group became a part of the government (and therefore entitled to an “executive privilege”) merely by advising it.
I had often used a quotation from Patrick Henry in talks on secrecy, but it had never been more appropriate than now. Said Henry:
“To cover with the veil of secrecy the common routine ofbusiness, is an abomination in the eyes of every intelligent man and every friend to his country.”
I was reminded also of these telling words of Edward Livingston:
“No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers. But many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses which were imperceptible only because the means of publicity had not been secured.”
One could only wonder when President Eisenhower would awaken to the abuses of secrecy being perpetrated in his name, right under his own nose.