CHAPTER XVIIA Pending Problem for JFK
In its first year, the Kennedy administration had tackled the problem of secrecy with noble thoughts and brave deeds. President Kennedy could not have spoken more clearly on the need for open government in a democratic society. Moreover, he had followed up his words with stringent action by overruling Secretary of State Dean Rusk on the one occasion when the State Department had tried to hide records behind a claim of “executive privilege.”
Chairman Edward Hebert said that his Armed Services subcommittee was receiving better co-operation than it had ever received from the Defense Department. Hebert had talked with President Kennedy and been assured that the administration felt it needed the help and prodding of a committee of Congress to cut the billions in wasteful defense spending.
The investigations by Chairman Porter Hardy were proceeding on the same note of co-operation, and the Virginia Democrat said he was “hopeful that it will continue.” Chairman Hardy’s subcommittee had a number of investigations of foreign aid under way, and he believed that some of these investigations would be a real test of the sincerity and consistency of the Kennedy administration stand on “executive privilege.”
Though many good signs indicated the Kennedy administration meant what it said about an open information policy,there were other signs that did not augur so well. Perhaps the most important was President Kennedy’s personal sensitivity to criticism and his inclination to try to punish those he regarded as being “enemies” or unfairly critical.
The President himself had telephoned reporters and editors to complain about stories he considered unfair or unfavorable to him or his administration. At one time, the reporters forTimemagazine were cut off from contact with White House sources on a direct order from the President. The order was lifted in about two weeks, after President Kennedy and his assistants feltTime’sreporters and editors had been given a lesson.
Other persons in the White House behaved even tougher, threatening retaliation against reporters they felt had done them damage. Lloyd Norman, Pentagon correspondent forNewsweekmagazine, became the target of an FBI investigation when he beat his colleagues with an exclusive report on the alternative plans for action on the Berlin crisis. The investigation was instigated despite the fact that before publication the report was read by a high White House figure who raised no question as to the propriety of printing it.
A memorandum by Frederick G. Dutton, Special Assistant to the President, contained language on government information policies that “shocked” Representative John Moss. The Dutton memorandum of July 20, 1961, was attached to a Civil Service Commission statement on standards of conduct for government employees. It stated:
“Employees may not disclose official information without either appropriate general or specific authority under agency regulations.”
Congressman Moss asked the White House for a “complete reversal” of the statement, plus a “positive directive to all employees to honor the people’s right to know as a routine matter in the conduct of government business.
“This restrictive attitude expressed by this [Dutton] languageis a complete reversal of all of the policies which the House government information subcommittee has supported for many years,” Moss wrote to Dutton. “It is also a direct contradiction of the clear position which President Kennedy has taken....”
The White House immediately withdrew the Dutton memorandum and asserted the right of the people to be informed about government operations. The incident nevertheless underscored the need for constant vigilance to prevent directives that in substance tell government employees to keep their mouths shut.
At the Pentagon there were also a few unhealthy signs that bore watching. Defense Secretary Robert Strange McNamara was generally praised as a bright, able, and hard-working public official, but his performance in the information area did not elicit equally laudatory comments. Though McNamara’s press chief, Assistant Secretary of Defense Arthur Sylvester, had served for years as a reporter in the Washington Bureau of the NewarkNews, he was sharply critical of the press in his first months in office. He did little to smooth the road for the Defense Secretary or to educate McNamara’s attitudes on freedom of information.
Testimony released in May 1961 by the Senate Committee on Armed Services disclosed that McNamara appeared to favor less information for the public as well as misinformation on our military developments.
“Why should we tell Russia that the Zeus development may not be satisfactory?” McNamara asked the Armed Services Committee. “What we ought to be saying is that we have the most perfect anti-ICBM system that the human mind will ever devise. Instead, the public domain is already full of statements that the Zeus may not be satisfactory, that it has deficiencies. I think it is absurd to release that kind of information.”
The McNamara statement was met with immediatecriticism from Representative John E. Moss, chairman of the House Government Information Subcommittee. Moss, a Democrat, declared that McNamara’s testimony was “a gross disservice” to the people of the United States and inconsistent with views expressed by President Kennedy. He asked how the McNamara statement could be reconciled with President Kennedy’s pledge to “withhold from neither the Congress nor the people any fact or report, past, present or future, which is necessary for an informed judgment of our conduct and hazards.”
Representative Moss declared that “advocacy of a program of misinformation constitutes a grave disservice to a nation already confused and suffering from informational malnutrition. To claim perfection in a weapon system, thereby creating a false sense of security, only results in complacency complained about by the very officials who would further feed it.”
McNamara, Moss said, “expressed an attitude which while not new is nevertheless most alarming.”
In the face of a barrage of similar criticism, the Defense Department hurriedly released a statement that McNamara did not mean to mislead the American people but only the Russians.
At his press conference on May 26, 1961, the Defense Secretary issued a four-point statement to serve as a guide on information policy. McNamara, forty-four-year-old Phi Beta Kappa and a former assistant professor of business administration at Harvard, had learned at least what his published position must be.
“In a democratic society,” his clarification began, “the public must be kept informed of the major issues in our national defense policy.”
While pointing out the need to avoid disclosure of information that might aid our potential enemies, he declared it“is equally important to avoid overclassification. I suggest that we follow this principle: When in doubt underclassify.”
The Defense Secretary also said that public statements must reflect the policy of the Defense Department, and that Defense personnel should not discuss “foreign policy subjects, a field which is reserved for the President and the Secretary of State.”
Representative Moss commended Defense Secretary McNamara for “recognition of the people’s right to know.” He singled out for praise the McNamara comment that “the public has at least as much right to bad news as good news.” However, he reserved judgment on the instructions restricting comment on policy matters. Moss asked to be advised on all directives or other instructions used in implementing the general information policy. He had learned by now that fine policy statements can mask the most intolerable withholding of information.
The reasonableness of the general policy statements on Defense information could hardly be criticized, but complaints were beginning to be heard about a tightening of curbs on speeches by military officers and about the difficulty of access to personnel at the Pentagon.
The Navy Times, a private publication, commented:
“Americans generally ought to be having some misgivings over the current trend at the Pentagon. There’s an air of secrecy, of censorship, of arbitrary rulings.”
The Defense Department toyed with the idea of invoking “executive privilege” when two committees of Congress initiated investigations of shipments of strategic materials to various Iron Curtain countries. The Internal Security Subcommittee of the Senate and a House Select Committee on Export Control were embarking on a repetition of the East-West trade investigations that Robert Kennedy, then a committee lawyer, had directed five years earlier. As AttorneyGeneral, Robert Kennedy advised against the use of “executive privilege.”
Despite assurances that the Kennedy administration would not claim “executive privilege,” Chairman Porter Hardy wanted the law to state that reports of the Inspector General and Comptroller on foreign-aid administration would be made available to Congress and the General Accounting Office (GAO) auditors. Promises were fine, but Chairman Hardy wanted a firm law to bolster his subcommittee’s authority to obtain records on foreign-aid spending.
Hardy’s amendment to the foreign-aid legislation of 1961 provided that if the Inspector General and Comptroller failed to make information available to Congress and the GAO auditors, their funds would be cut off by GAO. The House gave the amendment overwhelming support.
The Senate, however—with support from the Kennedy administration—emasculated the Hardy amendment by adding what Representative George Meader described as the “Presidential escape clause.” This clause provided that the Executive can avoid furnishing information on foreign-aid expenditures upon a “certification by the President that he has forbidden the furnishing thereof pursuant to such request and his reason for so doing.”
Representatives Hardy and Meader remembered the experience with a similar escape clause that was attached to the foreign-aid legislation of 1959. It had enabled President Eisenhower simply to sign a certification in order to bar Senate and House investigators from every key record they sought dealing with mismanagement of the foreign-aid program. The proof of the weakness of a law with such an escape clause had caused the Congress to pass the tight Hardy amendment in 1960. Although President Eisenhower defied the specific intent of the Hardy amendment by hiding the Peru foreign-aid records, the 1960 provisions had been consideredstrong enough for a court test if Eisenhower had remained in office.
The Kennedy administration’s support of the “Presidential escape clause” in the 1961 legislation was a bad omen to Representative Meader.
“The effect of the Presidential escape clause ...” he said, “is to weaken existing law and to diminish the power the Congress enjoyed during [the last year of] the Eisenhower administration to obtain information from the Executive of foreign aid expenditures.
“This constitutes a victory for the bureaucrats, a defeat for Congress, and a serious setback in the fight against government secrecy.”
Criticism of the Kennedy administration from some Republicans could be disregarded. But from George Meader it invited serious attention. As the foregoing chapters have shown, he was one of the most outspoken critics of the information policies of the Eisenhower administration.
Meader had joined Representative Hardy, a Democrat, in criticizing the State Department in March when Secretary of State Rusk issued orders barring the Hardy committee from testimony or records on the Peru scandals. But he had also joined Hardy in applauding President Kennedy for overruling his own Secretary of State and making the ICA records on Peru foreign-aid scandals available to the Hardy subcommittee.
On July 28, 1961, the Democratic-controlled House Government Operations Committee issued a report on information policies. It was, of course, highly critical of the Eisenhower administration but not completely approving of the new administration. The committee found the record of the first months of the Kennedy administration “mixed.” However, it saw a “hopeful note” in the fact that President Kennedy had given “positive policy direction from the top.” The report contained a favorable comment on “the Presidentialdetermination—even at the cost of reversing his Secretary of State—to live up to the new administration’s pledge to honor the right to know.”
Democrats took great party pride in the speeches President Kennedy made to assure the public of his concern for freedom of information.
“The essence of free communication must be that our failures as well as our successes will be broadcast around the world,” President Kennedy said at the convention of the National Association of Broadcasters. “And therefore we take double pride in our successes.
“The great inner resource of freedom, the resource which has kept the world’s oldest democracy continuously young and vital, the resource which has always brought us our greatest exploits in time of our greatest need, is the very fact of the open society.
“Thus, if we are once again to preserve our civilization, it will be because of our freedom, and not in spite of it.... For the flow of ideas, the capacity to make informed choices, the ability to criticize, all the assumptions upon which political democracy rests, depends largely upon communication.”
By the time the House Government Operations Committee was ready to file a second report on government information policies, the Democrats were aglow with admiration for President Kennedy. The September 21, 1961, report stated: “For the first time since the subcommittee entered the fight against excessive Government secrecy six years ago, there is a powerful new weapon—the support of a President who is clearly on record in favor of the greatest flow of Government information.”
Representative Meader thought the Democrats were too willing to praise a Democratic administration. In his dissent, he wrote:
“I cannot subscribe to the majority report because in my judgment it has political overtones and accepts the self-servingdeclarations of officials in the new administration rather than actual performance as indicating an improvement in the attitude of the executive branch toward providing information to the Congress and the public.
“The majority condemns the Eisenhower administration record on secrecy in government while praising that of the Kennedy administration. Such a distinction in my opinion, is not justified.”
Meader well remembered the fine words spoken in 1952 and 1953 on same subject by officials of the Eisenhower administration. He knew that the true test of the Kennedy administration lay not with words but with the administration’s continued willingness to support the power of inquiry of the Congress.
A few days after the release of the House report and Meader’s dissent, Attorney General Kennedy upheld the importance of investigations by Congress.
On the “Meet the Press” television show on September 24, James Reston, Bureau Chief for The New YorkTimes, said to Attorney General Kennedy:
“In the field of ‘executive privilege’ ... you seem more willing than previous Presidents and administrations to give information sought by Congress.”
“As far as ‘executive privilege’ is concerned,” the Attorney General answered, “I was associated with a congressional committee for five or six years and had battles with the executive branch of the government regarding obtaining information.
“I think it is terribly important to insure that the executive branch of the government is not corrupt and that they are efficient, that the legislative branch of the government has the ability to check on what we are doing in the executive branch of the government.
“So, in every instance that has been brought to our attention in the Department of Justice so far by various departmentsof the executive branch where this question has been raised we have suggested and recommended that they make the information available to Congress. We will continue to do that. I don’t say that there might not be an instance where ‘executive privilege’ might be used, but I think it is terribly important that the executive branch of the government, as powerful and strong as it is, that there be some check and balance on it, and in the last analysis the group that can best check and insure that it is handling its affairs properly is the Congress of the United States, so we will lean over backwards to make sure that they get the information they request.”
There was no reason to doubt the sincerity of the youthful Attorney General, and in fact there was every reason to believe he meant what he said. He was speaking from personal experience, he seemed to speak with conviction, and it was not yet time to be posturing for the 1964 political campaign.
It was, of course, relatively easy to take a broad view at this time when opening records could only expose crimes or mismanagement that had developed when the Eisenhower administration was in power. It would take more courage and great understanding of government to open records that might expose a trusted Kennedy subordinate or embarrass the Kennedy administration.
Barely more than a year after the Kennedy administration had taken office, a situation arose which raised grave question as to what its long-range policy would be. In February 1962, during the hearings on alleged muzzling of military officers, President Kennedy invoked the claim of “executive privilege” at the request of Defense Secretary Robert McNamara. McNamara wished to avoid identifying for the Senate Preparedness Subcommittee the Pentagon officials who had censored specific speeches by high military officers.
President Kennedy’s letter to McNamara of February 8, 1962 (see Appendix D), set out an ill-defined claim that thenational interest was at stake. The letter contained some terminology that seemed to claim an absolute right to bar testimony before Congress by any subordinate career officials. It was attacked by Senator Strom Thurmond, the South Carolina Democrat, as a “dangerous” precedent that would have barred Congress from investigating the Pearl Harbor disaster or obtaining information on a wide variety of scandals.
Many political writers excused President Kennedy. Some pointed to language in the letter they said indicated that he was not setting a broad precedent but was merely shutting off an investigation they considered to be senseless. Representative Moss declared that the Senate subcommittee had the legal right to ask the questions to determine which censors had blue-penciled which speeches.
It was not clear immediately whether the February 8 letter was to be an isolated incident or a troublesome broad precedent for more arbitrary secrecy in the tradition of the May 17, 1954, Eisenhower letter.