The High Cost of Secrecy

...The National Se- curity Council staff budget, which in- cludes funds for outside consultants, stood at $2.2 million in fiscal year 1971, which is more than triple Mr...

...On two separate occasions I have asked the Defense Department either to provide the five-year plan or to make a formal claim of executive privilege...

...what is and must be contested is the contention that the President alone may determine the range of its application and, in so doing, also de- termine the range of the Congress's power to investigate...

...No one questions the propriety of exec- utive privilege under certain circum- stances...

...Emphasis added...

...In the Congressional debate on this measure, Roger Sherman ob- served that, "as we want information to act upon, we must procure it where it is to be had, consequently we must get it out of this officer, and the best way of doing so must be by making it his duty to bring it forward...

...More important still, it should be specified in the legislation that information can be withheld from Congress by no means other than a formal invocation of executive privilege, Until and unless legislation is adopted by Congress to restrict exec- utive privilege both as it applies to information and as it has been ex- tended to shield individuals in high policy positions, the Executive will continue to be the sole judge of that amorphous category called the "public interest" and of what is compatible or incompatible with it...

...All were refused...

...Not for a moment would I wish to impose so drastic a procedure on Mr...

...Total- itarian devices such as military sur- veillance of civilians cannot long survive in the full light of publicity...

...As one re- porter has sardonically commented, "Presidential aides are talking non- stop to just about every group except official committees of Congress...

...Kissinger or any other official of our Government...

...Perhaps it is, but until recently we Americans had supposed that we were guided by a higher, democratic standard...

...For these purposes I have urged enactment of pending legislation pertaining to the right of Congress to require testimony by individual officials of the Executive branch and of a bill which I plan to introduce for purposes of spelling out statutory guidelines for the invocation of executive privilege...

...The courts have left no doubt, how- ever, that they will review such claims when they are invoked against private parties seeking governmental informa- tion, even when military secrets are involved...

...In complete contrast with the Rogers claim of unlimited exec- utive license for secrecy, an earlier At- torney General, Cushing, advised Pres- ident Pierce in 1854 that, "By express provision of law, it is made the duty of the Secretary of the Treasury to communicate information to either House of Congress when desired...

...To state the matter in its simplest terms: if Congress does not investigate the Executive, there is no one to do it but the Executive itself...

...and the President is the judge of that interest...

...as it deems advisable...

...As currently in- voked and practiced in our country, executive privilege represents a gap in the rule of law, placing the Govern- ment—or, more exactly, its executive branch—in a position of immunity from principles of law which are bind- ing upon ordinary people...

...Executive privilege, Professor Berger recalls, was originally justified as a means of assisting the Executive to "take care that the laws be faithfully executed," and he comments: "It is a feat of splendid illogic to wring from a duty faithfully to execute the laws a power to defy them...

...The China visit provides a striking example of the way in which the new foreign policy apparatus in the White House circumvents the Congress...

...In the tradition of the Treasury Act of 1789 many other requirements of information have been enacted into law over the years...

...In neither logic, law, nor practice can there exist simultaneously an effective power of legislative oversight and an absolute executive discretion to with- hold information...

...The barrier to participation is secre- cy...

...All I have received in reply was a brief note, more than four months ago, from an aide to the Sec- retary of Defense advising me that my request was "receiving careful consid- eration...

...The mal- ady is a loss of faith on the part of the American people in the truthful- ness and integrity of their own Gov- ernment...

...Kissinger and members of his staff have stead- fastly refused to appear before any Congressional committee, either in public or executive session...

...Since last winter I have made re- peated efforts to secure access to the five-year plan for military assistance for use by the Foreign Relations Com- mittee in its consideration of military assistance under the foreign aid author- ization bill...

...In the case of the history of the United States decision-making process on Vietnam policy, now known to the world as the Pentagon Papers, re- peated requests for access by the For- eign Relations Committee were dis- missed on the alleged ground that "it would be clearly contrary to the na- tional interest" to disseminate the study "more widely...

...and, for that pur- pose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government...

...Kissinger's behalf...

...I say that that proposition can not stand, from a constitutional stand- point, or on the basis of the merits...

...Secrecy not only perpetuates mistaken policies...

...The GAO submitted its report on the military assistance training pro- gram in early 1971 but was unable to comply fully with the Foreign Rela- tions Committee's request, pointing out that officials of both the State De- partment and the Department of De- fense had "withheld or delayed the re- lease of Military Assistance Program reports and records essential to a full and complete review...

...Were the President disposed to dis- mantle the elaborate National Security Council staff and retain the services of Mr...

...Reading into the past a great- ly revised, if not wholly new, concep- tion of the intent of the Constitution, recent Administrations have contended that their discretion to withhold infor- mation is absolute, plenary and im- mune from either Congressional re- striction or judicial review...

...Inevitably, this has taken a heavy toll of public confidence in our Gov- ernment...

...The result is that the people's representa- tives in Congress are denied direct ac- cess not only to the President himself but to the individual who is the Pres- ident's chief foreign policy adviser, the principal architect of his war policy in Indochina, and the emissary for his forthcoming trip to China...

...The valid power involved is that of legislative oversight, which cannot sur- vive in the face of an absolute and unrestricted executive privilege...

...Rostow's budget in 1968...

...Again and again, from the time of the U-2 incident in 1960, to the Bay of Pigs, the Dominican intervention, and all of the well-known misrepresentations concerning the war in Vietnam, our Government has been exposed in fal- sifications of its own practices and pol- icies...

...In order to remedy this situation, it seems to me most important that legis- lation restricting executive privilege contain specific time limits within which the Executive would be obli- gated either to provide the informa- tion requested or to invoke executive privilege...

...This power is spelled out in Sec- tion 136 of the Legislative Reorganiza- tion Act, which states that each stand- ing committee "shall exercise con- tinuous watchfulness of the execution by the administrative agencies con- cerned of any laws, the subject mat- ter of which is within the jurisdiction of such committee...

...Congressmen and Senators usually do not possess specialized or ex- pert knowledge, but they do have that single indispensable attribute which the experts do not have: accountability...

...Secrecy and subterfuge are them- selves more dangerous to democracy than the practices they conceal...

...Kissinger serves as chairman of six inter-agency commit- tees dealing with the entire range of foreign policy and national security issues and is also in charge of "work- ing groups" which prepare the staff studies on which high level policy dis- cussions are based...

...A review of past usage and precedent shows that "executive privilege" is not a legal or constitu- tional principle but simply a custom, a survival of the royalist principle that "the King can do no wrong...

...Another survey shows that sixty-four per cent of our people believe the country is "off on the wrong track," and still another in- dicates that forty-seven per cent of the American people are pessimistic about the nation's future and believe there could be a "real breakdown in this country...

...In 1789, Congress adopted, and President Washington signed, a stat- ute stating that it "shall be the duty of the Secretary of the Treasury . . . to make report, and give information to either branch of the legislature in person or in writing (as he may be required), respecting all matters re- ferred to hirn by the Senate or House of Representatives, or which shall ap- pertain to his office...

...At the same time, Mr...

...Insofar as Congress is mentioned at all in the Pentagon Papers as published in the press—and that is not often—it is referred to as an appropriate object of manipulation, or as a troublesome nuisance to be dis- posed of...

...The power and duty of legislative oversight are in fact rooted deeply in our constitution* al history...

...The language of the statute is clear: it refers to such information as the Comptroller General may "require/* not to such information as the Comp- troller General may desire and the agency involved choose to provide...

...Section 313 of the Act of 1921 establishing the General Accounting Office directs every agency of the Government to furnish to the Comptroller General "such informa- tion regarding the powers, duties, ac- tivities, organization, financial transac- tions, and methods of business of their respective offices as he may from time to time require of them...

...As matters stand, Mr...

...Can Congress's rights be less than those of a private individual...

...The evil in its modern form was born of honorable intent—the desire of the Eisenhower Administration to pro- tect its officials from the attacks of Senator Joseph McCarthy...

...In these and other instances the Department of De- fense has not only declined to in- voke executive privilege but has also sought to evade accountability by long delays in responding to Congressional requests, or by responding with mean- ingless assurances that a request for information is being "studied" or is "receiving detailed consideration...

...That, however, is not the case, nor does such an ar- rangement seem likely to commend itself to the present Administration...

...On its face this might be taken for a disinterested, more or less clerical activity...

...It would be gro- tesque indeed if security grounds could be invoked to deny Congress informa- tion which was available both to ex- ecutive and judicial officials...

...The issue is not one of the character or honesty of the foreign policy ex- perts surrounding the President but of their lack of accountability—and the resulting lack of Presidential account- ability...

...Sophisticated students of interna- tional affairs may scoff, pointing out that all governments engage in subter- fuge in their foreign policies...

...To cite one recent, striking example: In 1969, the General Accounting Office was asked by the Senate Foreign Re- lations Committee to conduct a review of the training of foreign military per- sonnel under the Military Assistance Program...

...In the view of Professor Raoul Ber- ger of the University of California Law School at Berkeley, who has made an exhaustive study of the origins of ex- ecutive privilege, there is "little if any historical warrant . . . for the notion that executive privilege was ever in- tended to be among the checks on the legislative power of inquiry...

...Like the businessman who has to meet a "payroll," the Congressman or Sen- ator has to respond to the wishes and whims, the prejudices and preferences, of his electorate...

...The elaborate new foreign policy apparatus in the White House is not an oddity or innovation of the present Administration but rather the consum- mation of a long-term trend toward the centralization of foreign policy powers in a small elite of experts and intellectuals surrounding the President...

...Kissinger appears on television shows, provides "back- ground" briefings for invited members of the press—who are permitted to ask questions—and on a few occasions has asked the leadership to provide special facilities so that he can provide brief- ings to selected Senators under his own rules...

...Although the issue is largely un- tested and in need of legislative clarifi- cation, authorities agree that Congress is not without resources to require the disclosure of pertinent information and the appearance of appropriate witnesses...

...Inevitably, one must give way to the other and the only question is which one is to be dispensed with...

...In addition, Mr...

...This is only one of many examples I could cite of the willingness of Ex- ecutive branch officials to withhold in- formation in defiance of the law...

...But without publicity and debate there is no redress...

...Despite occasional excesses, the Con- gressional power of investigation has proven its value repeatedly over the years...

...A recent Harris poll indi- cated that seventy-one per cent of the American people believed that the "real story" from Washington seldom reaches the people...

...It does seem to me of the greatest importance, nonetheless, that appropriate action be taken to pro- vide the Congress with a reliable and continuing flow of information...

...it is the indispensable condition for their perpetuation...

...Under Section 134a of the Legislative Reorganization Act of 1946, every standing committee and subcommittee of the Senate is author- ized "to require by subpoena or other- wise the attendance of such witnesses and the production of such corres- pondence, books, papers, and doc- uments, to take such testimony and to make such expenditures...

...President Nixon is certainly entitled to the pri- vate and personal counsel of Henry Kissinger, but Mr...

...When a Government refuses to put its trust in the people, the people in turn will withdraw their trust from that Government, and that, I fear, is exactly what has been happening in America in recent years...

...Legal scholars regard the claim to an abso- lute executive discretion in matters of providing or withholding information as an anachronistic survival of monar- chical privilege, an extension from King to President of the doctrine of sovereign immunity...

...The Defense Department, it appears, refuses either to provide the information requested or to make a formal claim of executive privilege...

...As matters now stand, that commitment has been reduced to a meaningless technicality: only the President may "invoke" executive privilege but just about any of his subordinates may exercise it—they sim- ply do not employ the forbidden words...

...Kissinger's in- fluence, or that of his new foreign pol- icy bureau, as being in any way sinister, illegitimate, or even inappro- priate—except in one respect: their immunity from accountability to Con- gress and the country behind a barri- cade of executive privilege...

...Court of Appeals for the Second Circuit stated that "the privilege relating to state secrets is inapplicable when dis- closure to court personnel in an in camera proceeding will not make the information public or endanger the national security...

...In- deed, in 1925, President Coolidge's At- torney General acknowledged that the papers to which the Comptroller Gen- eral was entitled, under the Act of 1921, "would seem to be a matter sole- ly for his determination...

...THE HIGH COST OF SECRECY by SENATOR J.W...

...This commitment has been reduced to a nullity by the simple device of withholding information without for- mal invocation of executive privilege...

...One of the most striking revelations to emerge from the Pentagon Papers was the extraordinary secrecy with which the inner circle of the Johnson Admin- istration made their fateful decisions of 1964 and 1965...

...Furthermore, there is no necessity for Congress or a Con- gressional committee to rely on the De- partment of Justice to act in a con- tempt case...

...In the name of executive privilege, agency heads have taken the extra- ordinary position that they are at liber- ty to ignore this provision of law...

...I am reminded, each time I hear this claim, of Frank Loesser's character from Guys and Dolls, "Big Julie," the gangster from Detroit, who forced his friends at gun- point to shoot crap with blank dice, because "I remember where the spots formerly were...

...The "cure," however, has proven to be as deadly as the disease, as executive priv- ilege, both formally and informally invoked, has ripened into a highly effective means of nullifying the inves- tigatory function of Congress...

...As Woodrow Wilson summed it up in 1885, "Unless Congress have and use every means of acquainting itself with the acts and disposition of the administrative agents of the Gov- ernment the country must be helpless to learn how it is being served...

...One can easily understand that the Executive would find it comfortable and convenient to serve as its own judge and jury, as it so frequently volunteers to do with its familiar con- tention that some matter or other is being "carefully studied" or is under "continuing review," in consequence of which—they hope to persuade us— no useful purpose would be served by a Congressional inquiry...

...and it is practically and by legal implica- tion the same with the other secre- taries, and with the Postmaster and the Attorney General...

...For purposes of this study the General Accounting Office there- upon requested of the Department of Defense copies of its five-year plan for military assistance, performance evaluation reports on Korea and pos- sibily other countries, and a Defense Department staff report on the status of foreign military training systems...

...This anchor in reality is the elected politician's one indis- pensable credential for participation in the policymaking process...

...The Pres- ident is entitled, within the limits of the law, to organize his advisers and delegate authority among them as he sees fit...

...Al- though not technically essential, it would have been useful and appropri- ate for the President, through his National Security Adviser, to have consulted with the Foreign Relations Committee in executive session prior to Mr...

...But as people with experience in government know well, the power to "define" op- tions is the power to choose some and eliminate others, and that is a signif- icant power indeed...

...it is, so they tell us, in the "nature" of politics, especially power politics...

...Can Congress be expected to abdicate to "executive caprice" in determining whether or not the Congress will be permitted to know what it needs to know in order to discharge its consti- tutional responsibilities...

...Func- tionally, it consists of the entire orga- nization which has grown up around the President, nominally in the capac- ity of personal advisers and assistants but actually, because of their number and organization, constituting a new super-bureau, separate from and supe- rior to the regular Cabinet depart- ments and shielded from Congress and the people behind a barricade of exec- utive privilege...

...The denial of access to records, the GAO report pointed out, was not a new problem but "a continuation of similar prob- lems the General Accounting Office has encountered over the years in re- viewing Department of Defense pro- grams, particularly evaluations of the military assistance programs...

...In United States v. Reynolds in 1953, the Supreme Court rejected the specific plea for disclosure of mil- itary information as of "dubious" ne- cessity in that case but went on to assert that executive privilege was "not to be lightly invoked," that "the Court it- self must determine whether the cir- cumstances are appropriate for the claim of privilege," and that "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers...

...It would now be useful and appropri- ate for Mr...

...But, as the military affairs study points out, "There can be no doubt that either House of Congress has the power to seize a recalcitrant witness, try him before the bar of the House, and pun- ish him for contempt by imprisoning him in the Capitol...

...Twenty-three years ago, in a dif- ferent context, Congressman Richard Nixon of California endorsed that proposition: "The point has been made that the President of the United States has issued an order that none of this information can be released and that, therefore, the Congress has no right to question the judgment of the Pres- ident...

...In foreign as in domestic affairs there can be no question of the autho- rity—indeed of the responsibility—of Congress to exercise legislative over- sight...

...Kissin- ger's role is comparable to that of Colonel House in about the same way that a moon rocket is comparable to the Wright brothers' airplane: both could fly but there all meaningful com- parison comes to an end...

...Kissinger as a personal adviser, I would see no reason to challenge the invocation of executive privilege on Mr...

...As matters now stand, and until a legislative remedy is adopted, Congress has neither the information it requires in order to discharge its constitutional responsibilities nor the opportunity to question and consult with the ranking figures in the new super-bureau of foreign affairs...

...Unlike Colonel House and Harry Hopkins, who had no staffs of their own, and even unlike Walt Rostow, who at the end of 1968 had a substan- tive staff of no more than twelve per- sons, Mr...

...Privilege" is the right word for un- restricted executive secrecy, because there is no basis in law or history for the claim of any right to withhold in- formation from the people's elected representatives...

...It comes, therefore, as something of a shock to have it suggested—in the un- derstated words of The Guardian of London—that the Pentagon Papers "show that superpowers make deci- sions much the same way the world over—with scant concern for the opin- ions or the feelings of those they represent...

...For more than a century, Executives upon occasion have refused informa- tion to Congress, and Congress, for the most part, has acquiesced...

...Professor Berger goes on to cite a Supreme Court pronouncement of 1838: "To contend that the obligation imposed upon the President to see the laws faithfully executed implies a power to forbid their execution, is a novel con- struction of the Constitution, and en- tirely inadmissible...

...Kissinger now presides over a staff of fifty-four "substantive offi- cers" and a total staff of 140 employes...

...No doubt, as in the case of Presidential use of the war power, these unwarranted deni- als of information will be cited as prec- edents conferring legitimacy on the claim to a right of unrestricted and unreviewable executive privilege...

...He is not, however, at liberty to create—nor is Congress at liberty to accept—a policy-making system which undercuts Congressional over- sight and the advisory role of the Senate in the making of foreign policy...

...A study of Congressional Inquiry into Military Affairs prepared for the Foreign Relations Committee in 1968 by the Library of Congress points out that contempt of Congress by reason of the failure of a witness to testify or produce papers is punishable by law as a misdemeanor...

...FULBRIGHT The term "credibility gap," which we have heard so frequently in recent years, is a tame euphemism for a deep malady of our society...

...As an agent of the Exec- utive, the Attorney General might be less than wholehearted in the prosecu- tion of a recalcitrant witness...

...Contrary to the intent of Congress, the spirit of the Constitution and dem- ocratic principle, there has grown up within our Government a whole new bureau, or department, vested with the most crucial decision-making pow- er on matters of war and peace but responsible to neither the Congress nor the people...

...As James Madison said in The Federalist, Num- ber 49, neither the Executive nor the legislature "can pretend to an exclu- sive or superior right of settling the boundaries between their respective powers...

...In Halpern v. United States in 1958, the U.S...

...An ill-conceived war, once recognized as such by the people and their repre- sentatives, must eventually be brought to an end...

...That, however, and more, are exactly what recent American Administrations have claimed...

...The new bureau is more than the National Security Council, al- though that is its heart and core...

...Such tactics of delay and evasion permit the Executive to exercise exec- utive privilege without actually invok- ing it and without honoring the com- mitment of three Presidents that only the President would invoke executive privilege...

...My own view—which I believe to be an accepted principle of jurisprudence— is that usurpation is not legitimized simply by repetition, nor is a valid power nullified by failure to exercise it...

...In the latter bill, an attempt is made to codify the com- mitment made by each of the last three Presidents that executive priv- ilege would be invoked only by the President and would not be used without specific Presidential approval...

...As Senator George Norris once said, "Whenever you take away from the legislative body of any country in the world the power of investigation, the power to look into the executive department and every other department of the govern- ment, you have taken a full step that will eventually lead into absolute mon- archy and destroy any government such as ours...

...The Supreme Court has not only ruled that the judiciary may review an executive decision to withhold in- formation sought by an individual, but has also held that under certain cir- cumstances the courts might require the disclosure to court personnel of classified information...

...the five-year plan on the ground that it was only a "tenta- tive planning document," the Korean report on the ground that it was "not available at the present time," the status reports on the ground that they contained the "opinions" of American military advisers the release of which might provoke "adverse reactions" on the part of the foreign governments concerned...

...Kissinger's secret visit to Peking, all the more since the Commit- tee has recently held a series of highly illuminating hearings on China policy...

...Kissinger to report to the Foreign Relations Committee on his trip to Peking and to consult on sub- stantive matters, such as the status of Taiwan, as these pertain to the President's forthcoming "journey for peace...

...Kissinger's principal function— so we are told—is to define "options" for the President...

...No one questions the propriety or desirability of allowing the President to have confidential, personal advisers...

...Kissinger in fact is a great deal more than a personal ad- viser to the President...

...The courts have not yet considered the Executive's claim that its invoca- tion of executive privilege is unreview- able when invoked against Congress...

...The omission of similar require- ments to provide information from the act establishing the Department of State—or the "Department of Foreign Affairs" as it was first called—was first interpreted by Attorney General Rogers in 1958 as proof that "the founders of our Government, and those who sat in the First Congress, meant to give no power to the Con- gress to see secret data in the executive departments against the wishes of the President...

...In the Jus- tice Department's memorandum of 1958, Attorney General William P. Rogers [now Secretary of State] went so far as to contend that "Congress cannot, under the Constitution, com- pel heads of departments by law to give up papers and information, re- gardless of the public interest involved...

...President Wilson relied heavily on the advice and friendship of Colonel House, and President Roosevelt relied similarly on Harry Hopkins...

...I do not consider Mr...

...The controversy generated by the Pentagon Papers is only the latest manifestation of the dissembling and subterfuge which have undermined popular confidence in our leaders and —-far worse—in our institutions...

...If the matter of accountability were to come to a final test—and it is much preferable that it does not—there seems little doubt of the legal authority of Congress, or of a Congressional committee, to subpoena documents and Government officials, just as it can subpoena private individuals to appear and give testimony, and to hold an individual in contempt should he fail to comply...