FIVE years ago a precedent was established that constitutes one of the greatest threats to freedom of the press in our time. This precedent has created an atmosphere in which influence peddling can flourish, in which errors or crimes by government officials can be concealed. It weakens the power of Congress to investigate how our government agencies operate and to inform us of these operations.
The “executive privilege” doctrine as proclaimed by the Eisenhower Administration is simply this: Officials of the executive branch of the government can refuse to produce government records or testify before a congressional committee if they believe the information sought is “confidential executive business.”
President Eisenhower has said that executive privilege could never be used to cover up crimes or mismanagement in government. It was only to allow persons in the executive branch to consult with each other in a frank manner and not have to worry about their views being put on the record of a congressional committee, the President said naively. As he explained it, the executive privilege seemed innocent enough. But, in practice, officials of his Administration have used this blanket of secrecy to cover up crimes, mismanagement, “imprudence,” “conflicts of interests,” and a wide variety of embarrassing activities.
The International Cooperation Administration (ICA), for example, has used executive privilege to conceal corruption and mismanagement in the spending of foreign aid. In the case of Laos and a half-dozen other countries, the ICA claimed executive privilege in refusing to give the General Accounting Office (GAO) auditors copies of evaluation reports and internal communications in the agency.
The waste in Laos ran into the millions, and the corruption included admitted pay-offs. Until the House government operations subcommittee, headed by Representative Porter Hardy of Virginia, subpoenaed the records of two private business firms, the ICA used executive privilege to conceal the fact that subordinates had warned against the possibility of fraud, profiteering, and mismanagement if top ICA officials in Laos insisted on signing certain contracts.
Several congressional committees have condemned the doctrine of executive privilege as having no foundation in law, and the Moss subcommittee on government information policy has repeatedly asked the Department of Justice for legal justification for this doctrine of secrecy.
Attorney General William P. Rogers has cited no law and no court cases to support this doctrine, but has claimed that an “inherent power” gives the executive branch this right. Instead of modifying executive privilege, Rogers has sought to expand it. In March, 1958, he told a Senate judiciary subcommittee that executive privilege could also be claimed by the so-called independent regulatory agencies: the Federal Communications Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Federal Power Commission, the Securities Exchange Commission, and the Civil Aeronautics Board. These regulatory agencies were set up as arms of Congress, and to many members of Congress it was inconceivable that such agencies were not subject to a lull scrutiny by Congress at any time.
ADMINISTRATIONS have always tried to a void making embarrassing admissions before committees of Congress, but for the most part it has been a matter of dodging congressional investigators. In the past there has been no serious claim of a right to refuse to testify or produce records.
It was on May 17, 1954, that the doctrine of executive privilege was dramatically broadened. This took place during the Army-McCarthy hearings, and it was justified on the premise that it was a blow at Senator Joseph McCarthy. President Eisenhower, in a letter to Defense Secretary Charles E. Wilson, approved the idea of having Army counsel John Adams refuse to testify on some conversations with William P. Rogers, then the deputy attorney general, and with Sherman Adams, the President’s chief assistant.
The President took this stand “because it is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations and communications, or any documents or reproductions, concerning such advice be disclosed.”
That was an emotion-charged era with little cool thinking on either side. The President’s position was accepted for what he said it was: a new statement on the constitutional separation of powers between the three branches of government. It was popular to oppose McCarthy and support the Eisenhower Administration on all points. It was easier merely to follow the Administration line than it was to study the problem and see where it would lead.
By the end of 1958. the curtains of executive secrecy were closing around more than twenty agencies of government. Rogers, now attorney general, did not claim that defense secrets were involved. There were specific laws that covered defense secrets, which have to be protected in the national interest, and no responsible group contested the right to reasonable security in the defense and diplomatic areas. Rogers was asserting an arbitrary right of government officials to refuse to testify or produce records dealing with nondefense matters—how the Dixon-Yates contract was let. what conversations Sherman Adams had with the members of the Federal Communications Commission and other regulatory agencies, and questionable settlements of a wide variety of government contract matters.
The Teapot Dome scandals of the Harding Administration could have been covered up if government officials had then applied even the mildest form of executive privilege as laid down by President Eisenhower in his letter of May 17, 1954. Under the executive privilege theory Secretary of Navy Edwin Denby and Secretary of Interior Albert B. Fall could have refused to give testimony or produce records on events leading up to the leasing of the Teapot Dome oil reserves. Fall’s crimes might never have been uncovered.
The tax scandals of the Truman Administration could have been concealed by a claim that all papers except final decisions were confidential executive communications. Attorney General J. Howard McGrath could have maintained that his conversations with T. Lamar Caudle, the assistant attorney general in charge of the tax division, were confidential executive business. Caudle and White House aide Mathew Connelly could have contended that their communications were confidential executive business. Instead, those communications were actually used as the basis of the criminal charges on which Caudle and Connelly were convicted.
The ducking and evasion of the Truman Administration naturally enraged Republicans. But President Truman made no assertion of a constitutional right under which all officials in the executive branch could claim executive privilege. He issued an executive order placing certain personnel files under a secrecy blanket, and on some occasions he had files delivered to the White House to his personal custody so that they could not be subpoenaed.
Senator Homer Ferguson (Republican, Michigan) was chairman of a committee that investigated the Truman Administration at that time. Ironically, his chief counsel was William Rogers. Rogers’ persistent and hard-hitting inquiries had the Truman Administration so frantic in 1948 and 1949 that the Justice Department prepared a memorandum of the occasions when earlier Presidents had withheld information from Congress.
This memorandum defended the theory of executive privilege and cited a scattering of cases in which various chief executives back to George Washington had withheld information from Congress, Actually, Washington only temporarily withheld some papers in a military matter and then produced everything. Andrew Jackson had withheld arbitrarily some records dealing with scandals in the sale of Indian lands, which Congress should have been allowed to sec.
The memorandum on executive privilege was examined by the Truman Administration and was found to be unsupported in law or by court cases. Most of the precedents were not historically accurate, and many had little application to the congressional efforts to obtain information of nondefense agencies. It was discarded as of no value. Yet that discarded memorandum of law—historically inaccurate and legally unsound — was dredged out of the Justice Department files by Attorney General Herbert Brownell in 1954 and was attached to President Eisenhower’s May 17, 1954, letter in support of the enlarged doctrine of executive privilege. It seems curious that a practice which was condemned by Republicans in the Truman Administration should be revived, broadened, and sanctioned for Eisenhower.
REPUBULICAN officials were quick to recognize what a convenient umbrella of secrecy was provided by President Eisenhower’s letter. Sherman Adams, chief assistant at the White House, was one of the first to clothe himself with almost total immunity from the power of congressional investigations. He refused to testify before the Senate judiciary subcommittee that was investigating the controversial Dixon-Yates power contract. Instead he submitted brief and vague letters about his activities to the congressional investigators and declared that of course he acted for President Eisenhower in all of his contracts with federal agencies and his communications were “confidential executive business.”
The full use that would be made of executive privilege became clear in the investigations of the Dixon-Yates contract, when Rowland Hughes, the former budget director, refused to allow certain witnesses to be questioned and certain papers to be produced on the ground that papers and conversations involved in the formulating of policy were “confidential.”
Senator Estes Kefauver (Democrat, Tennessee) and Senator William Langer (Republican, North Dakota) were furious. They pointed out that President Eisenhower in August, 1954, had ordered that all facts in the Dixon-Yates contract be made public.
“I have checked on this matter, and I am authorized by the President to state that his general instructions stand,” Hughes said in reply.
Hughes, the White House, and the Atomic Energy Commission had plenty to cover up in the Dixon-Yates investigation. Although they had been told to make public a complete chronology of events leading up to the contract, they eliminated the name of Adolphe Wenzell from the reports on the discussions and meetings that set the stage for the multimillion-dollar contract with the Dixon-Yates power group.
The First Boston Corporation, a New York banking house, was serving as financial agent for the Dixon-Yates power group in its negotiations with the Bureau of the Budget and the Atomic Energy Commission. Wenzell, an officer and director of the First Boston Corporation, was also a consultant to the Bureau of the Budget on financing dealing with the Dixon-Yates contract. Wenzell was therefore in a “conflict of interest” role.
“Hughes deliberately attempted to conceal Wenzell’s name and activity from public view,” the report of the Senate judiciary subcommittee stated.
It was pointed out that Hughes declined to testify on his conversations with Sherman Adams and others in the White House on the Dixon-Yates contract. He claimed executive privilege. Admiral Lewis Strauss, chairman of the Atomic Energy Commission, also declined to give testimony on his communications with Sherman Adams and President Eisenhower on grounds that the executive privilege covered all of these communications.
Subsequent developments showed that President Eisenhower had not been given full information on how his subordinates were running the government. Ten months after the President had ordered a full public disclosure of the events leading up to the contract, he was still ignorant of the “conflict of interest” role Wenzell played in the negotiations. At a press conference on June 28. 1955, the President stated that his advisers had informed him that Wenzell “was not called in or asked a single thing about the Dixon-Yates contract.” The President insisted that Wenzell was only “a technical adviser” on some matters dealing with the Tennessee Valley Authority “and nothing else.”
As the facts about the Wenzell role came to light a year too late, President Eisenhower saved face in about the only way possible at that stage. He canceled the Dixon-Yates contract, and the comptroller general made a finding that a “conflict of interest” existed.
THE investigation of the East-West trade and the revision of the list of strategic materials barred from sale to Iron Curtain countries revealed a similar story. Again executive privilege was used to hide the disputes that had taken place within the government on the revision of the strategic materials list.
Over the objections of the Defense Department, the Joint Operating Committee (JOC) — an interdepartmental committee of the U.S. government —changed the strategic materials list to permit shipment to Iron Curtain countries of copper, aluminum, precision boring machines, and horizontal boring, drilling, and milling machines.
Information came to the Senate permanent investigating subcommittee indicating that revision made the so-called strategic materials list a complete farce. Simple jig boring machines were retained on the list as being prohibited from shipment to a potential enemy. Yet the revised list allowed the shipment of more modern precision boring machines of much higher strategic value. There were many similar contradictions.
The subcommittee’s requests for information ran into a stone wall of opposition from the executive agencies involved: the State Department, Defense Department, Commerce Department, and the Foreign Operations Administration. There was no claim that defense secrets were involved. The executive branch merely took the arbitrary stand that it could withhold records or testimony. All the executive agencies joined together in directing employees not to answer questions or produce documents for congressional investigators in connection with the probe of East-West trade and the strategic materials list revision.
Their attitude was best demonstrated in a letter from Secretary of Commerce Sinclair Weeks to Commerce Department employees. He wrote: “You are instructed not to testify either in public or executive closed session with respect to any advice, recommendations, discussions and communications within the executive branch respecting any course of action in regard to East-West trade controls or as to any information regarding international negotiations with the countries cooperating in East-West trade controls.”
The departments tried to give some color of law to the claim by citing three federal court cases, but the Senate subcommittee declared that none of the cases cited involved the right to withhold information from congressional committees. Some of the information they sought was obtained over the following months from foreign countries, where revised lists of strategic materials were openly published.
THE arrogant withholding of information from Congress and the press by the federal executive and independent agencies resulted in establishment of a special government operations subcommittee to study information policies. On June 9, 1955, Representative William L. Dawson (Democrat, Illinois), chairman of the government operations subcommittee, named Representative John Moss (Democrat, California) to head the new government operations subcommittee.
Establishment of the Moss subcommittee started the first systematic study of just how far the executive privilege had gone in covering up the activities of the executive agencies. The subcommittee also engaged in a thorough study of the court decisions and the law.
In a report dated May 3, 1956, the Moss subcommittee stated that already more than twenty agencies had made the claim of executive privilege to withhold information from Congress. “The claim has never been upheld by the courts,” Representative Dawson said. “It has been a mere Executive ipse dixit" (say-so).
“Refusals by the President and heads of departments to furnish information to the Congress are not constitutional law,” the subcommittee reported. “They represent a mere naked claim of privilege. . . . There is no inherent right on the part of heads of departments or other Federal agencies to withhold information from the Judiciary.”
Following publication of this Moss subcommittee report, in the summer of 1956, the Justice Department tried to hide behind executive privilege in an investigation of a settlement made of the American Telephone and Telegraph (A.T. & T.) antitrust suit. This time Representative Emanuel Celler’s antimonopoly subcommittee was doing the investigating. 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 in 1949 for the purpose of forcing a divorcement of A.T. & T. and its subsidiary, Western Electric. The separation was urged to break the near monopoly that Western Electric had 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 tried to cover 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 some records in the Defense Department. This outside probe showed some interesting things that justice Department secrecy had hidden. It showed that a high official of the 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.
AT A press conference in September, 1956, President Eisenhower was asked if executive privilege meant that “all employees of the Federal Government, at their own discretion, can determine whether they will testify or will not testify before Congressional committees [even] where there is no security problem involved.”
The President avoided answering and turned the problem over to White House legal counsel Gerald Morgan. Morgan’s letter to me dated October 26, 1956, stated that Eisenhower’s May 17, 1954, letter was a blanket instruction for “all employees in the executive department” not to give testimony or produce documents on advice or communications within the executive department.
It was an amazing answer, particularly from Morgan, a former assistant legislative counsel to the House of Representatives, who had written forceful articles in the past in support of the power of Congress to compel testimony and production of records.
With such encouragement at the top it was inevitable that the policy of secrecy would spread. In August, 1957, the newly created House legislative oversight subcommittee hired Bernard Schwartz, a young law professor from New York, as counsel in an investigation of the various regulatory agencies. The committee, headed by Representative Morgan Moulder (Democrat, Missouri), had been established “to go into the administration of the laws [creating the regulatory agencies] and see whether or not the laws . . . were being carried out or whether they were being repealed or revamped by those who administer them.”
Schwartz, an expert in the field of administrative law, sought the files of the various regulatory agencies and in speeches and letters made it clear he intended to dig deeply into any evidence of frauds or improper activities. The chairmen of the various regulatory agencies met at the University Club in Washington in late September to discuss ways of blocking the young lawyer and the pesky oversight committee.
Schwartz was allowed to examine the public files, but his efforts to obtain files of correspondence with the White House and with other agencies ran into the claim of executive privilege. Even in the first months, Schwartz became aware that Sherman Adams had been extremely active in reaching various regulatory agencies He was also aware that others on the White House staff had made similar contacts with the so-called “independent” regulatory agencies.
Although Schwartz was successful in getting some half promises from the regulatory agencies to cooperate, they engaged in a foot-dragging operation. Richard A. Mack, a member of the FCC, wouldn’t show investigators many of his records, including the office diary that provided links later for his indictment on charges of having conspired to violate the federal law. The lack of cooperation by Commissioner Mack was matched by the resistance in the CAB, where Schwartz was trying to pin down evidence of contacts by Sherman Adams.
In January, 1958, Schwartz insisted that the members of the legislative oversight committee get tough and demand full cooperation in the production of records. Some members of the investigating committee did not want to force the issue. Several of the Republicans came out flatly in support of the Eisenhower Administration’s obstructionist tactics. Schwartz was irritable when he did not receive support from the committee. Tempers flared after he leaked a staff memorandum on improper activities in the FCC, and the young counsel was fired. Chairman Moulder, who had supported Schwartz, resigned in protest over his firing.
It took the Adams-Goldfine case to dramatize the full evil of secret government. The problems of Adams were a direct result of the failure of the White House to recognize the dangers involved. It is not necessary to read evil intent into the origin of the blanket secrecy. There was an equally insidious attitude present: the self-satisfaction that things were being handled efficiently and properly and that the press and the Congress were better off in the dark so they couldn’t stir up trouble.
Executive privilege had meant that Sherman Adams could decline all invitations to appear before committees of Congress. He took the view that all of his acts were the acts of President Eisenhower. This placed Adams in the position of a man with much of the authority of the presidency, although he took none of the responsibility to the Congress or the public. He wasn’t even available for press conferences. Congress was lax in not challenging the use of executive privilege sooner. It was only after the Adams-Gold fine incident that there was much recognition of the problem inherent in allowing a presidential assistant and numerous other individuals with undefined or ill-defined authority to prowl through the agencies. They were the ‘’untouchables” under the executive privilege theory.
IN THE fall of 1958, the Eisenhower Administration carried the use of executive privilege to the ultimate in absurdity. Apparently the Administration had not learned that the blanket secrecy of executive privilege was as damaging to the Administration as it was to the cause of good government.
The Air Force used the claim of executive privilege in refusing to make an inspector general’s report available to the auditors of the General Accounting Office —the congressional watchdog on government waste and inefficiency. The refusal came in the face of the Budgeting and Accounting Act, which stated specifically that the GAO auditors were entitled to access to all books and records of all departments.
No security was involved in this case, because the GAO auditors had the same clearance as key Air Force personnel to examine secret and topsecret documents. The Air Force simply took the position that as an executive agency it had a right to invoke the so-called executive privilege and hide the management survey reports on the ballistic missile program from the GAO auditors.
Comptroller General Joseph Campbell, head of the GAO, was furious at the Air Force refusal to produce records. If the Air Force could refuse to give the GAO records, then any division of the Defense Department could claim executive privilege against the GAO auditors at any time. In fact, if the Air Force position was allowed to stand, the defense establishment could arbitrarily block the only outside audit of the $40 billion a year defense budget.
Even with the GAO conducting a post audit, there had been plenty of scandals in military spending: the case of Brigadier General Bennett Meyers, the multimillion-dollar frauds in clothing procurement operations in the New York quartermaster depot, and the hundreds of bungles revealed by the Hebert subcommittee of the House armed services committee. Certainly the record wasn’t such that the Congress or the American people could feel safe in letting the military brass at the Pentagon spend half of the national budget and hide the records that might be embarrassing to those in power.
Chairman Moss took up the GAO problem for Comptroller General Campbell. He charged that the law clearly gives the GAO access to all records and stated that President Eisenhower had a duty under Article II, section three, of the U.S. Constitution to “take care that the laws be faithfully executed.”
President Eisenhower exhibited a haziness and a variation of position on the issue that indicated he had no conception of the real issue. In a press conference on November 5, 1958, he was asked about the problem involved in the Air Force refusal to give records to the GAO. “I believe that every investigation committee of Congress, every . . . auditing office like the GAO, should always have an opportunity to see official records if the security of our country is not involved,” the President replied, taking what seemed like a forthright view.
But, a week later, the President backed the Air Force and declared that under executive privilege the GAO could be arbitrarily barred from examining records. “In my judgment, the public interest is not necessarily served by divulging the advice, suggestions, or recommendations which subordinate employees periodically make to their superiors,” the President wrote, in what seemed a complete Switch of position.
The basic question now is this: Can the President or his department heads arbitrarily override a specific law of the Congress which requires the production of records of “financial transactions and methods of business” in all agencies? It is a vital problem of government, and it is certain to emerge periodically in the 86th Congress as investigating committees try to carry out their function. By mid-1959, it was obvious that President Eisenhower would not take steps to correct the situation voluntarily. He is standing behind the members of his team who are responsible for this mushrooming evil.
Comptroller General Campbell and the leadership in the Congress have the responsibility to find a solution. Although the comptroller general and some committees of Congress arc trying to force the issue, they are receiving little help from the majority of the members of Congress and the leadership. So far, secrecy has not become enough of a personal inconvenience to Senate Leader Lyndon Johnson or House Leader Sam Rayburn for the two Texans to raise any fuss about it.