CHAPTER XVDefiance to the End, Above the Law
From the investigation of the aid program in Laos, Representative Porter Hardy and his subcommittee staff moved on to the aid programs in Latin America. The subcommittee had examined some Latin-American aid programs as early as 1955 and unearthed several deficiencies. But the Eisenhower administration had claimed that the shortcomings were due largely to the newness of the programs and suggested that the subcommittee examine them again five years later.
The five years had now elapsed, and on April 28, 1960, Chairman Hardy notified Secretary of State Christian Herter and ICA Director Riddleberger that he was initiating an investigation of the aid programs to Brazil, Uruguay, Argentina, Chile, Bolivia, Peru, and Colombia.
Several new laws were on the books to facilitate the investigation. The 1959 law establishing the office of Inspector General and Comptroller (OIGC) in the State Department provided that:
“All documents, papers, communications, audits, reviews, findings, recommendations, reports, and other material which relate to the operation or activities of the Office of Inspector General and Comptroller shall be furnished the General Accounting Office and to any committee of the Congress, or any duly authorized subcommittee thereof.”
The Congress in 1960 amended the Mutual Security Act providing the GAO could shut off funds to the OIGC if thatagency did not furnish records requested in a reasonable time.
Chairman Hardy’s staff had also called his attention to another law (5 U.S.C. 105 [a]) which provided that every department shall, upon request of the Government Operations Committee, “furnish any information requested of it relating to any matters within the jurisdiction of said committee.”
Added to these laws, and the previously mentioned Budgeting and Accounting Act of 1921, was the fact that the State Department was preparing to ask Congress for more money for aid to Latin America. The stage was legally and psychologically well set for co-operation. And Chairman Hardy was indeed advised that he would receive full co-operation. It never came. When his first requests for files on the Bolivia program produced no results in six weeks, Hardy notified the State Department and ICA that hearings would begin on the information policy on June 28, 1960.
The hearings revealed that the State Department had constructed an involved thirteen-step routine for clearing papers for Congress, and the papers Hardy requested simply had not been cleared. Eric H. Hager, legal adviser of the Department of State, identified himself as the man responsible for the new system.
It was found that in one instance it took six weeks for one subcommittee request to clear eight of the thirteen steps. When Chairman Hardy tried to find out what had happened to the request for documents, he learned that the request and the documents were resting in the “in box” in the Office of the Assistant Secretary of State for Congressional Relations. The papers had been gathering dust in the box for two weeks and were only moved when the State Department started to prepare for the hearing.
In the report on the hearings, Hardy’s subcommittee explained the need for original documents as “the best evidence available” on the internal operations of ICA.
“It has been the policy and practice of the subcommittee, in order to insure accurate reporting of these complex operations, to support its findings with documentary corroboration from files of the executive agencies,” the report stated.
“The subcommittee has sought to obtain the facts from the documents and records ... as they are prepared in the ordinary course of doing business, rather than to rely upon oral testimony or upon secondary documents prepared especially for the subcommittee’s consideration.”
The report scored “executive privilege” as a “nebulous doctrine” that had plagued the subcommittee with delays. Again it was pointed out that the withholding of information was in violation of clear laws imposing a duty to make records available to Congress. The report stated that the subcommittee had sought to be reasonable in its request, and “on several occasions [has] withdrawn its requests for particular documents at the suggestion of the executive branch. Examples of documents in this category are certain memoranda recording high-level discussions between Department of State officials and senior officials of foreign governments.”
The report stated it should be understood that this willingness to refrain from pressing for certain documents was not a recognition of any right to withhold them. It continued:
“No court decision has settled the question of whether executive officials may refuse to honor a request of a congressional committee for papers, documents and records. Many court decisions, however, have upheld the power of congressional committees to obtain records and papers in the possession of private individuals, corporations, and associations even though such records might be regarded as of a highly personal nature. It logically follows that the power of Congress to obtain information regarding the public business, the exercise of authority granted by Congress, or the expenditure of funds appropriated by Congress would likewise be upheld in the event of a court test.
“If Congress is to discharge its constitutional legislative and policymaking functions, it must have reliable information about the public business.”
To allow the executive branch to pick and choose what the Congress would be allowed to examine “can, and frequently does, result in giving Congress a distorted picture,” the report said.
Then it suggested the use of two existing powers of Congress to oppose this abuse of power by the executive: the power of subpoena, and the power of the purse.
“The power of subpoena, however, should be used only as a last resort. Utilizing the power of the purse, the Congress can and should provide, in authorizing and appropriating legislation, that the continued availability of appropriated funds is contingent upon the furnishing of complete and accurate information relating to the expenditure of such funds to the General Accounting Office and to the appropriate committees of Congress at their request.”
A week after the report was issued, Chairman Hardy sent a letter to the ICA, State Department, and the Development Loan Fund asking for all documents on programs for seven Latin-American countries. His staff had already obtained considerable information from sources outside ICA indicating mismanagement, conflicts of interest, and other corruption in the program in Peru.
A month later, on October 11, 1960, President Eisenhower issued a formal order denying access to the records Hardy had requested.
Three weeks later, on October 31, 1960, Chairman Hardy made a formal request for specific ICA documents from the Office of Inspector General and Comptroller. This set the groundwork for shutting off funds to the Office of Inspector General and Comptroller under the provisions of the 1960 Amendment to the Mutual Security Act cited earlier in this chapter.
President Eisenhower followed up a month later, on December 2, with a certification denying access to these OIGC documents and eighty other documents requested.
Here was the showdown to determine how far President Eisenhower would go in overriding the express provisions of the 1959 law establishing the Office of Inspector General and Comptroller. Chairman Hardy notified the GAO of the OIGC refusal to produce records. And Comptroller General Joseph Campbell, as head of GAO, filed notice that unless the documents were made available the funds for OIGC would be shut off on December 9.
By so doing, Campbell ruled that the refusal to produce the documents on foreign aid to Latin-American countries was a violation of the law even if the orders were issued by his one-time close associate, President Eisenhower.
On December 9, Gerald Morgan, Deputy Assistant to the President, requested a ruling from Attorney General William P. Rogers, and thirteen days later Rogers wrote President Eisenhower (see Appendix C). The Attorney General, as would be expected from his earlier espousal of the most extreme interpretation of “executive privilege,” declared Comptroller General Campbell’s ruling “erroneous.” In his opinion, the President had a constitutional right to withhold whatever he wanted to withhold. Rogers advised President Eisenhower that he had the authority to direct the Secretary of the Treasury and the Secretary of State to disregard the ruling of the Comptroller General cutting off funds for the Office of Inspector General and Comptroller.
With this advice in hand, President Eisenhower, on December 23, overrode the disclosure provisions of the Mutual Security Act of 1959 and the ruling of the Comptroller General he had appointed. In letters to Secretary of Treasury Robert B. Anderson and to Secretary of State Christian Herter, President Eisenhower told them to use federal funds to pay the Office of Inspector General and Comptroller.
He called attention to Campbell’s contention that such payments were to be cut off under the law passed in 1959, and added:
“This position, I am advised by the Attorney General, is based upon erroneous interpretation of law which would reach an unconstitutional result and that mutual security program funds continue to be made available for expenses of the Office of Inspector General and Comptroller.”
“Accordingly, you are hereby directed, until the end of my term of office on January 20, 1961, to cause disbursements to be made for such expenses upon the receipt of certified vouchers presented for that purpose.”
Chairman Hardy continued the investigation of Peru. But he had need for documents that would be crucial in establishing the degree of mismanagement and corruption in the ICA program there. The most he could do now was to hope for better success under the new administration. However, he did not want to present President-elect John F. Kennedy with a problem for solution on or before the January 20 inaugural ceremonies.
He talked to Theodore Sorenson, Administrative Assistant to Senator Kennedy and later counsel to the President, and informed him of the pending problem. Hardy stated that he would withdraw his request which could prevent payment of OIGC personnel if he received assurances from the President-elect that the new administration would review the problem immediately after the inaugural.
On December 31, 1960, Hardy received a telegram from President-elect Kennedy asking that he postpone action on the documents until the new administration had “an opportunity to review [the] situation.” Hardy complied.
The night of January 18, 1961, President Eisenhower went before a nationwide audience to give his “farewell address.” He appealed for an “alert and knowledgeable citizenry” tocombat the military-industrial complex that could “endanger our liberties or democratic processes.”
“This conjunction of an immense military establishment and a large arms industry is new in the American experience,” President Eisenhower said. “The total influence—economic, political, even spiritual—is felt in every city, every statehouse, every office of the Government.
“We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources, and livelihood are all involved: so is the very structure of our society.
“In the council of Government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”
[Congressman Edward Hebert, of Louisiana, had made a good many comments on the military-industrial complex, and he had conducted a fine investigation documenting some of the problems. But the record indicated Chairman Hebert had not received full co-operation from the Eisenhower administration. Now President Eisenhower was expressing as much concern as Hebert.]
“We must never let the weight of this combination endanger our liberties or democratic processes,” President Eisenhower warned. “We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.
“Partly because of the huge costs involved, a Government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers.
“The prospect of domination of the Nation’s scholars byFederal employment, project allocations, and the power of money is very present—and is gravely to be regarded.”
President Eisenhower might have added that the arbitrary withholding of information from Congress and the public was the quickest way to give this military-industrial combination the control he believed to be so dangerous. He apparently had never understood the secrecy problem in his administration in such a way that he could see the connection between the increase in secrecy and the decrease in liberty and other essential elements of democracy. Chairman Hardy, I myself, and others hoped the new President would.