CHAPTER XVIIIA Solution
History establishes that any administration may be afflicted with laxity, incompetence, and even outright fraud. History has also taught that any administration can harbor men who want to hide mistakes and corruption.
It is true that no President has been directly involved in fraudulent activity, and it seems unlikely that any ever will be. Holding such a high office would inspire almost any man to rise above the desire for personal enrichment, particularly if the cost might be damaging to his place in history. But any President might be tempted to hide records on a claim of “executive privilege” if he felt he could save some trusted subordinate from the slings of the opposition political party.
In varying degrees, our Presidents have been dependent upon a palace guard. The nature of the position, with all its vast responsibilities, makes a circle of close advisers inevitable. Thus Presidents of the past have sought information about alleged improprieties or corruptions from the very men who have been accused of perpetrating them. Instead of facts and a clear analysis of the problem—whether it was Teapot Dome, tax scandals, or Dixon-Yates—the Presidents have received misinformation and excuses. The accusations have been explained away to our Presidents as partisan complaints from politicians maliciously bent on destroying the administration’s programs. Such explanations from palace guards unfortunately have been all too effective and have obscuredthe facts that would have alerted our Presidents to conflicts of interest, favoritism, and fraud.
President Kennedy and future Presidents will face the same kind of pitfalls. Regardless of their own integrity, they cannot be expected to conduct personal investigations of each of their subordinates. The Presidents and the people must therefore depend upon investigations from outside the executive branch—by the Congress and the General Accounting Office—for an aggressive search for the facts.
Investigations by Congress have demonstrated the failure of the military departments to police themselves effectively from the inside. In every recent year, the Congress and the GAO have pinpointed the waste of hundreds of millions of dollars on inefficient, incompetent, or corrupt handling of Defense contract arrangements.
Examination of testimony on the foreign-aid programs in Laos and Peru shows that the State Department is little better than the Defense Department in rooting out mismanagement and corruption. There are dozens of other areas within the bureaucracy where the record is just as bad.
It is doubtful that we will ever eliminate corruption in the federal government, but it must be kept under closer control or it can spread with devastating impact. Nothing speeds the growth of corruption more than policies that foster arbitrary secrecy. Secrecy allows little scandals to become major scandals, costly to the taxpayers, devastating to our foreign-aid program, to our position of defense readiness, and to our national morale.
“Secrecy,” as the House Government Operations Committee has put it, “is the handmaiden of bureaucracy, especially military bureaucracy. It has so pervasive an effect that all government becomes invested with the urge to restrict—even those routine agencies which should be wide open to the public.”
In these pages, I have not attempted to examine everyagency of government. I have examined enough, however, to show how severe the infection of secrecy has become, what dire symptoms it produces, and how seriously it threatens the health of our democracy.
It can be wiped out. As treatment for a permanent cure, I suggest the following steps:
1All officials except the President should be obligated to explain all their actions to Congress and the General Accounting Office, unless specific laws are passed for withholding information.This does not mean that the public or Congress should have access to all papers when a decision is pending, but at a later date Congress should have access to all records and testimony concerning events leading up to the executive decisions.
A good example from recent history that shows the value of a properly conducted hearing was the Senate investigation of President Truman’s firing of General Douglas MacArthur in 1951.
The special Senate committee—selected with a reasonably even division of political forces from the Armed Services and Foreign Relations committees—did not seek testimony from President Truman. However, it did require the testimony of General Omar Bradley, the Chairman of the Joint Chiefs of Staff. Bradley testified on all events leading up to the firing, including his meeting with President Truman. Bradley was not asked to recount verbatim his discussion with President Truman, but he testified he met with President Truman, that the MacArthur actions were discussed, and the decision was made by President Truman to fire General MacArthur.
The special Senate committee met behind closed doors but released a daily transcript of testimony that had been examined to eliminate any matter that might violate national military security standards.
Had the Eisenhower administration’s doctrine of “executive privilege” prevailed at that time, a total secrecy blanketcould have been thrown around the Defense Department, the Joint Chiefs of Staff, and the White House. There would have been no way of determining the facts leading up to the decision, except as the President found it convenient to reveal them.
How much better it was for all concerned that the MacArthur firing was carefully examined and that the public was apprised of all the material facts.
2Congress should enact special laws to cover the specific areas in which withholding of records is deemed necessary to the public good.There are now laws that provide for withholding of federal income tax information from the public, and from all committees of Congress except certain ones with supervisory jurisdiction over the Internal Revenue Service. Laws have been enacted providing for withholding of Defense information that involves national security. Other areas—FBI reports, patent secrets, business reports, or personnel files—could be covered by special legislation of a similar nature, but modified to meet the requirements of the area in which the withholding is needed.
3Congress should provide stiff criminal penalties for use against government officials who withhold information from properly authorized committees of Congress or the GAO.This legislation should also provide the mechanism for prosecution to be initiated by the Congress or the GAO. Such a mechanism is necessary to avoid the situation wherein an Attorney General, advocate for the President and appointed by the President, simply refuses to enforce the law or gives patently false legal opinions to avoid enforcement.
4The Congress should establish an effective means for systematic review of papers carrying national security classifications of “confidential,” “secret,” or “top secret.” Or the President could establish a small committee to spot-check, review, and challenge questionable use of national security classifications.However the review group is set up, its membersshould be selected from outside the military field, and they should be persons with a strong and responsible interest in open government. They should have authority to challenge arbitrary or questionable security classifications and authority to obtain explanations from all persons with a role in questionable classifications.
This review group should not have the power to change classifications, only the power to recommend changes. It should have the authority, however, to file reports with Congress, with department heads, and with the President that could be made public. Such reports should identify individuals engaged in arbitrary or questionable overclassification, as well as those responsible for failing to take steps to declassify.
Only through the establishment of these checks on executive secrecy can the public be assured that laws are administered in the way that the Congress intended them to be. Only in this way can the public be certain that the laws are not twisted or disregarded by an arbitrary bureaucracy operating in secret.
And what about checks upon possible abuses by the investigating committees of Congress? There are many. The courts offer some of the most effective. Rulings in recent years have put limitations on the power of an investigating committee. The committee must be properly authorized by the House or Senate, with a specific authority, and it must operate within the scope of that authority. The courts will not uphold a contempt citation if a committee of Congress is operating outside its proper authority, or if the questions asked are not pertinent to the inquiry. Recent rulings have held that the committee chairman must also explain to the witness the reasons why the questions are pertinent and necessary to carry out the legislative function.
In addition to these legal limitations, committees of Congressare held in check by their own bipartisanship and the fact that they usually operate in the public view. The members of the committees nearly always represent a cross section of the Congress, everything from extreme liberals to extreme conservatives with many gradations between. This representation assures a spokesman for almost every point of view. It also assures cross examination of witnesses in most cases, for minority counsel is normally provided to help minority members bring out facts that the majority may choose to overlook or minimize.
In recent years, most committees have adopted rules of procedure to assure some element of fair play. Since most hearings are held in public, there is the opportunity for the press and other interested groups and individuals to view the questioning and to point out any lapses in fair play.
Open congressional hearings do not absolutely assure fair play, but they do represent the best practical means this country has so far devised for assuring the public’s right to know about the running of its government.
It is pertinent to note here that in England, which is generally regarded by political authorities as a model for democratic procedures, the need for constant inquiry into governmental policies and administration of the laws is fully recognized.
The British Government, unlike ours, is totally responsible to the Parliament, with the Prime Minister and other ministers coming out of the Parliament. This system has resulted in the development of a number of devices to accomplish the same basic purpose that our congressional investigations should accomplish.
There is a “question time” in Parliament four days a week during which any member of the House of Commons may interrogate the various ministers and even the Prime Minister. This periodic opportunity for questioning makes it possiblefor the opposition either to obtain immediate answers or to demonstrate evasiveness on crucial issues.
Also the Parliament is free to investigate through select committees of the House of Commons which are unlimited in their power to compel testimony and production of records and to punish for contempt. The contempt can be punished by jailing by the Parliament for the duration of the term, and British courts have left this power unlimited over the years.
The “question time” and select committees are supplemented by Royal Commissions of Inquiry, technically established and appointed by the Crown and Tribunals of Inquiry, established by the Parliament with members named by the Crown.
The Royal Commissions have had no power to compel testimony and production of records. However, co-operation is usually obtained because of the pressure of British public opinion, as well as the ever-present threat that a select committee of the Commons can take jurisdiction and use its contempt powers to force testimony.
The Tribunals of Inquiry operate with the normal court powers of subpoena and oaths to compel testimony. This is a device for taking an inquiry out of the partisan political atmosphere of a legislative investigation.
In the United States the question is often asked whether greater congressional freedom in questioning officials of the executive branch would not interfere with the efficiency of the government. Much of the business of federal government is simply keeping records and preparing testimony to account for the custodianship of the government agencies. In most instances it would take an official far less time to go before a committee of Congress and give a frank account of the activities of his agency than it has taken to devise cover-ups for frauds, mismanagement, and embarrassing oversights.
The Teapot Dome scandals could have been fully disclosedin a few months instead of several years. The details of some of the Truman tax scandals could have been uncovered in a few weeks. And again, a frank accounting could have explained the Dixon-Yates contract in a matter of days.
Congress can be of great service to a cabinet officer in keeping his agency clean. If a congressional committee is unreasonable, or brutal, or oversteps its jurisdiction, such abuses, it must be remembered, take place in public where they can be seen and remedied. The President and others in the executive branch have the personnel and facilities for pointing out the abuses so they can be eradicated in the face of public opinion.
Ours was designed to be a government of laws, and not a government of men. It was not intended that the President or any other official would have a right to disregard the laws of Congress in accounting on government activity. The President, it should be pointed out, has all of the protection he needs to prevent Congress from unduly interfering with him in carrying out his executive responsibilities. The separation of powers of the three branches of government is clearly set out in the Constitution, and the only way the Constitution has provided for Congress to take action against the President is to impeach him. Since no President yet has been impeached, this procedure would be resorted to in only the most drastic of circumstances.
The President of the United States, with the vast power and prestige of his office, has the obligation to set a tone of government that assures the fullest possible flow of information consistent with the nation’s security. He must take the lead in breaking down the arrogance of the bureaucracy that assumes a right to keep the knowledge of the people’s business from the people themselves, and thus restore the people’s faith in their governmental servants.
President Kennedy has made an uncertain start. Whether he succeeds depends not only on him, but on the press andthe public as well. We cannot afford to allow our faith in a President’s good intentions and his own personal integrity to blind us, as we did during President Eisenhower’s administration, to the machinations of the Washington cover-up. The press, the Congress, the public must make certain that Attorney General Kennedy and other key members of the Kennedy administration remember how “terribly important” it is that Congress and the Government Accounting Office maintain full access to the records of government.
When the old secrecy practices are cast aside and the freedom of information guaranteed, then will our democracy flourish as the founding fathers intended it should.