CHAPTER XVIII
A 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 obscured the 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 every agency 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:
1 _All 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 blanket could 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.
2 _Congress 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.
3 _Congress 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.
4 _The 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 members should 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 Congress are 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 possible for 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 disclosed in 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 and the 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.
APPENDIX A
_Letter from President Eisenhower to the Secretary of Defense_
THE WHITE HOUSE, _May 17, 1954_
The Honorable the SECRETARY OF DEFENSE, _Washington, D. C._
DEAR MR. SECRETARY: It has long been recognized that to assist the Congress in achieving its legislative purposes every Executive Department or Agency must, upon the request of a Congressional Committee, expeditiously furnish information relating to any matter within the jurisdiction of the Committee, with certain historical exceptions—some of which are pointed out in the attached memorandum from the Attorney General. This Administration has been and will continue to be diligent in following this principle. However, it is essential to the successful working of our system that the persons entrusted with power in any one of the three great branches of Government shall not encroach upon the authority confided to the others. The ultimate responsibility for the conduct of the Executive branch rests with the President.
Within this Constitutional framework each branch should co-operate fully with each other for the common good. However, throughout our history the President has withheld information whenever he found that what was sought was confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation.
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 or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. This principle must be maintained regardless of who would be benefited by such disclosures.
I direct this action so as to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution. This separation is vital to preclude the exercise of arbitrary power by any branch of the Government.
By this action I am not in any way restricting the testimony of such witnesses as to what occurred regarding any matters where the communication was directly between any of the principals in the controversy within the Executive Branch on the one hand and a member of the Subcommittee or its staff on the other.
Sincerely, DWIGHT D. EISENHOWER
MEMORANDUM
For: the President. From: the Attorney General.
One of the chief merits of the American system of written constitutional law is that all the powers entrusted to the government are divided into three great departments, the Executive, the Legislative, and the Judicial. It is essential to the successful working of this system that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall be limited to the exercise of the powers appropriate to its own department and no other. The doctrine of separation of powers was adopted to preclude the exercise of arbitrary power and to save the people from autocracy.
This fundamental principle was fully recognized by our first President, George Washington, as early as 1796 when he said: “... it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved....” In his Farewell Address, President Washington again cautioned strongly against the danger of encroachment by one department into the domain of another as leading to despotism. This principle has received steadfast adherence throughout the many years of our history and growth. More than ever, it is our duty today to heed these words if our country is to retain its place as a leader among the free nations of the world.
For over 150 years—almost from the time that the American form of government was created by the adoption of the Constitution—our Presidents have established, by precedent, that they and members of their Cabinet and other heads of executive departments have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy. American history abounds in countless illustrations of the refusal, on occasion, by the President and heads of departments to furnish papers to Congress, or its committees, for reasons of public policy. The messages of our past Presidents reveal that almost every one of them found it necessary to inform Congress of his constitutional duty to execute the office of President, and, in furtherance of that duty, to withhold information and papers for the public good.
Nor are the instances lacking where the aid of a court was sought in vain to obtain information or papers from a President and the heads of departments. Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest, they will not interfere with the exercise of that discretion, and that Congress has not the power, as one of the three great branches of the Government, to subject the Executive Branch to its will any more than the Executive Branch may impose its unrestrained will upon the Congress.
PRESIDENT WASHINGTON’S ADMINISTRATION
In March 1792, the House of Representatives passed the following resolution:
“_Resolved_, That a committee be appointed to inquire into the causes of the failure of the late expedition under Major General St. Clair, and that the said committee be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries” (3 Annals of Congress, p. 493).
This was the first time that a committee of Congress was appointed to look into a matter which involved the Executive Branch of the Government. The expedition of General St. Clair was under the direction of the Secretary of War. The expenditures connected therewith came under the Secretary of the Treasury. The House based its right to investigate on its control of the expenditures of public moneys. It appears that the Secretaries of War and the Treasury appeared before the committee. However, when the committee was bold enough to ask the President for the papers pertaining to the General St. Clair campaign, President Washington called a meeting of his Cabinet (Binkley, _President and Congress_, pp. 40-41).
Thomas Jefferson, as Secretary of State, reports what took place at that meeting. Besides Jefferson, Alexander Hamilton, Henry Knox, Secretary of War, and Edmond Randolph, the Attorney General, were present. The Committee had first written to Knox for the original letters, instructions, etc., to General St. Clair. President Washington stated that he had called his Cabinet members together, because it was the first example of a demand on the Executive for papers, and he wished that so far as it should become a precedent, it should be rightly conducted. The President readily admitted that he did not doubt the propriety of what the House was doing, but he could conceive that there might be papers of so secret a nature that they ought not to be given up. Washington and his Cabinet came to the unanimous conclusion:
“First, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public; consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President.”
The precedent thus set by our first President and his Cabinet was followed in 1796, when President Washington was presented with a resolution of the House of Representatives which requested him to lay before the House a copy of the instructions to the Minister of the United States who negotiated the treaty with the King of Great Britain, together with the correspondence and documents relative to that treaty. Apparently it was necessary to implement the treaty with an appropriation which the House was called upon to vote. The House insisted on its right to the papers requested, as a condition to appropriating the required funds (_President and Congress_, Wilfred E. Binkley [1947], p. 44).
President Washington’s classic reply was, in part, as follows:
“I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Congress as a right; and with truth I affirm that it has been, as it will continue to be while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes to ‘preserve, protect, and defend the Constitution’ will permit” (Richardson, _Messages and Papers of the Presidents_, vol. 1, p. 194).
Washington then went on to discuss the secrecy required in negotiations with foreign governments, and cited that as a reason for vesting the power of making treaties in the President, with the advice and consent of the Senate. He felt that to admit the House of Representatives into the treaty-making power, by reason of its constitutional duty to appropriate monies to carry out a treaty, would be to establish a dangerous precedent. He closed his message to the House as follows:
“As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; ... and as it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request” (Richardson, _Messages and Papers of the Presidents_, vol. 1, p. 196).
PRESIDENT JEFFERSON’S ADMINISTRATION
In January 1807, Representative Randolph introduced a resolution, as follows:
“_Resolved_, That the President of the United States be, and he hereby is, requested to lay before this House any information in possession of the Executive, except such as he may deem the public welfare to require not to be disclosed, touching any illegal combination of private individuals against the peace and safety of the Union, or any military expedition planned by such individuals against the territories of any Power in amity with the United States; together with the measures which the Executive has pursued and proposes to take for suppressing or defeating the same” (16 Annals of Congress [1806-1807], p. 336).
The resolution was overwhelmingly passed. The Burr conspiracy was then stirring the country. Jefferson had made it the object of a special message to Congress wherein he referred to a military expedition headed by Burr. Jefferson’s reply to the resolution was a Message to the Senate and House of Representatives. Jefferson brought the Congress up to date on the news which he had been receiving concerning the illegal combination of private individuals against the peace and safety of the Union. He pointed out that he had recently received a mass of data, most of which had been obtained without the sanction of an oath so as to constitute formal and legal evidence. “It is chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions as renders it difficult to sift out the real facts and unadvisable to hazard more than general outlines, strengthened by concurrent information or the particular credibility of the relator. In this state of the evidence, delivered sometimes, too, under the restriction of private confidence, neither safety nor justice will permit the exposing names, except that of the principal actor, whose guilt is placed beyond question” (Richardson, _Messages and Papers of the Presidents_, vol. 1, p. 412, dated January 22, 1807).
SIMILAR ACTIONS BY PRESIDENTS JACKSON, TYLER, BUCHANAN, AND GRANT
On February 10, 1835, President Jackson sent a message to the Senate wherein he declined to comply with the Senate’s resolution requesting him to communicate copies of charges which had been made to the President against the official conduct of Gideon Fitz, late Surveyor-General, which caused his removal from office. The resolution stated that the information requested was necessary both in the action which it proposed to take on the nomination of a successor to Fitz, and in connection with the investigation which was then in progress by the Senate respecting the frauds in the sales of public lands.
The President declined to furnish the information. He stated that in his judgment the information related to subjects exclusively belonging to the executive department. The request therefore encroached on the constitutional powers of the executive.
The President’s message referred to many previous similar requests, which he deemed unconstitutional demands by the Senate:
“Their continued repetition imposes on me, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive” (ibid., p. 133).
The President next took up the fact that the Senate resolution had been passed in executive session, from which he was bound to presume that if the information requested by the resolution were communicated, it would be applied in secret session to the investigation of frauds in the sales of public lands. The President said that, if he were to furnish the information, the citizen whose conduct the Senate sought to impeach would lose one of his basic rights, namely—that of a public investigation in the presence of his accusers and of the witnesses against him. In addition, compliance with the resolution would subject the motives of the President, in the case of Mr. Fitz, to the review of the Senate when not sitting as judges on an impeachment; and even if such a consequence did not follow in the present case, the President feared that compliance by the Executive might thereafter be quoted as a precedent for similar and repeated applications.
“Such a result, if acquiesced in, would ultimately subject the independent constitutional action of the Executive in a matter of great national concernment to the domination and control of the Senate;...
“I therefore decline a compliance with so much of the resolution of the Senate as requests ‘copies of the charges, if any,’ in relation to Mr. Fitz, and in doing so must be distinctly understood as neither affirming nor denying that any such charges were made ...” (ibid., p. 134).
One of the best reasoned precedents of a President’s refusal to permit the head of a department to disclose confidential information to the House of Representatives is President Tyler’s refusal to communicate to the House of Representatives the reports relative to the affairs of the Cherokee Indians and to the frauds which were alleged to have been practiced upon them. A resolution of the House of Representatives had called upon the Secretary of War to communicate to the House the reports made to the Department of War by Lieutenant Colonel Hitchcock relative to the affairs of the Cherokee Indians together with all information communicated by him concerning the frauds he was charged to investigate; also all facts in the possession of the Executive relating to the subject. The Secretary of War consulted with the President and under the latter’s direction informed the House that negotiations were then pending with the Indians for settlement of their claims; in the opinion of the President and the Department, therefore, publication of the report at that time would be inconsistent with the public interest. The Secretary of War further stated in his answer to the resolution that the report sought by the House, dealing with alleged frauds which Lieutenant Colonel Hitchcock was charged to investigate, contained information which was obtained by Colonel Hitchcock by ex parte inquiries of persons whose statements were without the sanction of an oath, and which the persons implicated had had no opportunity to contradict or explain. The Secretary of War expressed the opinion that to promulgate those statements at that time would be grossly unjust to those persons, and would defeat the object of the inquiry. He also remarked that the Department had not been given at that time sufficient opportunity to pursue the investigation, to call the parties affected for explanations, or to determine on the measures proper to be taken.
The answer of the Secretary of War was not satisfactory to the Committee on Indian Affairs of the House, which claimed the right to demand from the Executive and heads of departments such information as may be in their possession relating to subjects of the deliberations of the House.
President Tyler in a message dated January 31, 1843, vigorously asserted that the House of Representatives could not exercise a right to call upon the Executive for information, even though it related to a subject of the deliberations of the House, if, by so doing, it attempted to interfere with the discretion of the Executive.
The same course of action was taken by President James Buchanan in 1860 in resisting a resolution of the House to investigate whether the President or any other officer of the Government had, by money, patronage, or other improper means sought to influence the action of Congress for or against the passage of any law relating to the rights of any state or territory. (See Richardson, _Messages and Papers of the Presidents_, vol. 5, pp. 618-19.)
In the administration of President Ulysses S. Grant the House requested the President to inform it whether any executive offices, acts, or duties, and if any, what, have been performed at a distance from the seat of government established by law. It appears that the purpose of this inquiry was to embarrass the President by reason of his having spent some of the hot months at Long Branch. President Grant replied that he failed to find in the Constitution the authority given to the House of Representatives, and that the inquiry had nothing to do with legislation (Richardson, _Messages and Papers of the Presidents_, vol. 7, pp. 362-63).
PRESIDENT CLEVELAND’S ADMINISTRATION
In 1886, during President Cleveland’s administration, there was an extended discussion in the Senate with reference to its relations to the Executive caused by the refusal of the Attorney General to transmit to the Senate certain documents concerning the administration of the Office of the District Attorney for the Southern District of South Alabama, and suspension of George W. Durkin, the late incumbent. The majority of the Senate Committee on the Judiciary concluded that it was entitled to know all that officially exists or takes place in any of the departments of Government and that neither the President nor the head of a department could withhold official facts and information as distinguished from private and unofficial papers.
In his reply President Cleveland disclaimed any intention to withhold official papers, but he denied that papers and documents inherently private or confidential, addressed to the President or a head of a department, having reference to an act entirely executive such as the suspension of an official, were changed in their nature and became official when placed for convenience in the custody of a public department. (Richardson, _Messages and Papers of the Presidents_, vol. 8, pp. 378-79, 381.)
Challenging the attitude that because the executive departments were created by Congress the latter had any supervisory power over them, President Cleveland declared (Eberling, _Congressional Investigation_, p. 258):
“I do not suppose that the public offices of the United States are regulated or controlled in their relations to either House of Congress by the fact that they were created by laws enacted by themselves. It must be that these instrumentalities were created for the benefit of the people and to answer the general purposes of government under the Constitution and the laws, and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation.”
PRESIDENT THEODORE ROOSEVELT’S ADMINISTRATION
In 1909, during the administration of President Theodore Roosevelt, the question of the right of the President to exercise complete direction and control over heads of executive departments was raised again. At that time the Senate passed a resolution directing the Attorney General to inform the Senate whether certain legal proceedings had been instituted against the United States Steel Corporation, and if not, the reasons for its nonaction. Request was also made for any opinion of the Attorney General, if one was written. President Theodore Roosevelt replied refusing to honor this request upon the ground that “Heads of the Executive Departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever” (_Congressional Record_, vol. 43, pt. 1, 60th Cong., 2d sess., pp. 527-28).
When the Senate was unable to get the documents from the Attorney General, it summoned Herbert K. Smith, the Head of the Bureau of Corporations, and requested the papers and documents on penalty of imprisonment for contempt. Mr. Smith reported the request to the President, who directed him to turn over to the President all the papers in the case “so that I could assist the Senate in the prosecution of its investigation.” President Roosevelt then informed Senator Clark of the Judiciary Committee what had been done, that he had the papers and the only way the Senate could get them was through his impeachment. President Roosevelt also explained that some of the facts were given to the Government under the seal of secrecy and cannot be divulged, “and I will see to it that the word of this Government to the individual is kept sacred.” (Corwin, _The President: Office and Powers_, pp. 281, 428; Abbott, _The Letters of Archie Butt, Personal Aid to President Roosevelt_, pp. 305-6.)
PRESIDENT COOLIDGE’S ADMINISTRATION
In 1924, during the administration of President Coolidge, the latter objected to the action of a special investigating committee appointed by the Senate to investigate the Bureau of Internal Revenue. Request was made by the committee for a list of the companies in which the Secretary of the Treasury was alleged to be interested for the purpose of investigating their tax returns. Calling this exercise of power an unwarranted intrusion, President Coolidge said:
“Whatever may be necessary for the information of the Senate or any of its committees in order to better enable them to perform their legislative or other constitutional functions ought always to be furnished willingly and expeditiously by any department. But it is recognized both by law and custom that there is certain confidential information which it would be detrimental to the public service to reveal” (68th Cong., 1st sess., _Record_, April 11, 1924, p. 6087).
PRESIDENT HOOVER’S ADMINISTRATION
A similar question arose in 1930 during the administration of President Hoover. Secretary of State Stimson refused to disclose to the Chairman of the Senate Foreign Relations Committee certain confidential telegrams and letters leading up to the London Conference and the London Treaty. The Committee asserted its right to have full and free access to all records touching the negotiations of the treaty, basing its right on the constitutional prerogative of the Senate in the treaty-making process. In his message to the Senate, President Hoover pointed out that there were a great many informal statements and reports which were given to the Government in confidence. The Executive was under a duty, in order to maintain amicable relations with other nations, not to publicize all the negotiations and statements which went into the making of the treaty. He further declared that the Executive must not be guilty of a breach of trust, nor violate the invariable practice of nations. “In view of this, I believe that to further comply with the above resolution would be incompatible with the public interest” (S. Doc. No. 216, 71st Cong., special sess., p. 2).
PRESIDENT FRANKLIN D. ROOSEVELT’S ADMINISTRATION
The position was followed during the administration of President Franklin D. Roosevelt. There were many instances in which the President and his Executive heads refused to make available certain information to Congress the disclosure of which was deemed to be confidential or contrary to the public interest. Merely a few need be cited.
1. Federal Bureau of Investigation records and reports were refused to congressional committees, in the public interest (40 Op. A. G. No. 8, April 30, 1941).
2. The Director of the Federal Bureau of Investigation refused to give testimony or to exhibit a copy of the President’s directive requiring him, in the interests of national security, to refrain from testifying or from disclosing the contents of the Bureau’s reports and activities. (_Hearings_, vol. 2, House, 78th Cong. Select Committee to Investigate the Federal Communications Commission, 1944, p. 2337.)
3. Communications between the President and the heads of departments were held to be confidential and privileged and not subject to inquiry by a committee of one of the Houses of Congress. (Letter dated January 22, 1944, signed Francis Biddle, Attorney General to Select Committee, etc.)
4. The Director of the Bureau of the Budget refused to testify and to produce the Bureau’s files, pursuant to subpoena which had been served upon him, because the President had instructed him not to make public the records of the Bureau due to their confidential nature. Public interest was again invoked to prevent disclosure. (Reliance placed on Attorney General’s Opinion in 40 Op. A. G. No. 8, April 30, 1941.)
5. The Secretaries of War and Navy were directed not to deliver documents which the committee had requested, on grounds of public interest. The Secretaries, in their own judgment, refused permission to Army and Navy officers to appear and testify because they felt that it would be contrary to the public interests. (_Hearings_, Select Committee to Investigate the Federal Communications Commission, vol. 1, pp. 46, 48-68.)
PRESIDENT TRUMAN’S ADMINISTRATION
During the Truman administration also the President adhered to the traditional Executive view that the President’s discretion must govern the surrender of Executive files. Some of the major incidents during the administration of President Truman in which information, records, and files were denied to Congressional Committees were as follows:
Date Type of Document Refused
Mar. 4, 1948 FBI letter-report on Dr. Condon, Director of National Bureau of Standards, refused by Secretary of Commerce.
Mar. 15, 1948 President issued directive forbidding all Executive departments and agencies to furnish information or reports concerning loyalty of their employees to any court or committee of Congress, unless President approves.
March 1948 Dr. John R. Steelman, Confidential Adviser to the President, refused to appear before Committee on Education and Labor of the House, following the service of two subpoenas upon him. President directed him not to appear.
Aug. 5, 1948 Attorney General wrote Senator Ferguson, Chairman of Senate Investigations Subcommittee, that he would not furnish letters, memoranda, and other notices which the Justice Department had furnished to other government agencies concerning W. W. Remington.
Feb. 22, 1950 Senate Res. 231 directing Senate Subcommittee to procure State Department loyalty files was met with President Truman’s refusal, following vigorous opposition of J. Edgar Hoover.
Mar. 27, 1950 Attorney General and Director of FBI appeared before Senate Subcommittee. Mr. Hoovers historic statement of reasons for refusing to furnish raw files approved by Attorney General.
May 16, 1951 General Bradley refused to divulge conversations between President and his advisers to combined Senate Foreign Relations and Armed Services Committees.
Jan. 31, 1952 President Truman directed Secretary of State to refuse to Senate Internal Security Subcommittee the reports and views of foreign service officers.
Apr. 22, 1952 Acting Attorney General Perlman laid down procedure for complying with requests for inspection of Department of Justice files by Committee on Judiciary:
Requests on open cases would not be honored. Status report will be furnished.
As to closed cases, files would be made available. All FBI reports and confidential information would not be made available.
As to personnel files, they are never disclosed.
Apr. 3, 1952 President Truman instructed Secretary of State to withhold from Senate Appropriations Subcommittee files on loyalty and security investigations of employees—policy to apply to all Executive agencies. The names of individuals determined to be security risks would not be divulged. The voting record of members of an agency loyalty board would not be divulged.
Thus, you can see that the Presidents of the United States have withheld information of Executive departments or agencies whenever it was found that the information sought was confidential or that its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation. The courts too have held that the question whether the production of the papers was contrary to the public interest was a matter for the Executive to determine.
By keeping the lines which separate and divide the three great branches of our Government clearly defined, no one branch has been able to encroach upon the powers of the other.
Upon this firm principle our country’s strength, liberty, and democratic form of government will continue to endure.
APPENDIX B
_Letters Regarding the Presidential Letter of May 17, 1954_
_October 9, 1956_
Hon. DWIGHT D. EISENHOWER, _The President of the United States, The White House, Washington, D.C._
DEAR MR. PRESIDENT: At your press conference on Thursday, September 27, 1956, you were asked whether your letter of May 17, 1954, to Secretary of Defense Charles E. Wilson was being misused as authority to restrict information from the public.
This question was posed by Mr. Clark Mollenhoff of the Des Moines Register and Tribune.
You stated that if Mr. Mollenhoff would put the question in writing—which I understand he has done—it will be answered.
This particular letter and its misuse by a number of Federal departments and agencies has been a great concern to the Special Subcommittee on Government Information. Although the letter, and the accompanying memorandum from the Attorney General, granted authority to one particular agency to refuse information to a specific committee of Congress in a single instance, 19 departments and agencies have cited the letter as authority to refuse information to the public or the Congress.
This occurred in agency answers to the subcommittee’s questionnaire of November 7, 1955, on information practices and policies as well as during subcommittee hearings with executive officials.
Enclosed is an intermediate report, adopted unanimously by the House Government Operations Committee, on the subcommittee’s study of restrictions on information. The problem of misuse of the May 17, 1954, letter is discussed on page 90 and at other points.
When the answer to Mr. Mollenhoff’s question has been prepared and transmitted to him, the subcommittee would appreciate receiving copies of it and any other comments you have on the matter.
Respectfully, JOHN E. MOSS, _Chairman_ THE WHITE HOUSE, _Washington, October 17, 1956_.
Hon. JOHN E. MOSS, _House of Representatives, Washington, D.C._
DEAR MR. MOSS: This will acknowledge your October 9 letter to the President asking that you be supplied with copies of the answer to a question submitted by Mr. Clark Mollenhoff of the Des Moines Register and Tribune.
The answer to this question has not yet been given. However, as soon as it is, we will get in touch with you.
Sincerely, GERALD D. MORGAN, _Special Counsel to the President_
_October 26, 1956_
Mr. CLARK R. MOLLENHOFF, _Des Moines Register and Tribune, National Press Building, Washington, D.C._
DEAR CLARK: At the press conference on September 27, 1956, you asked the President whether “all employees of the Federal Government, at their own discretion, can determine whether they will testify or will not testify before congressional committees when there is no security problem involved.”
In the President’s letter of May 17, 1954, to Secretary Wilson, the President set forth the general principles that are to govern all employees in the executive branch concerning their testimony, or the production of documents, relating to their conversations or communications with, or their advice to, each other on official matters. In his press conference of July 6, 1955, the President further amplified the principles set forth in this letter as follows:
“If anybody in an official position of this Government does anything which is an official act, and submits it either in the form of recommendation or anything else, that is properly a matter for investigation if Congress so chooses, provided the national security is not involved.
“But when it comes to the conversations that take place between any responsible official and his advisers, or exchange of mere little slips, of this or that, expressing personal opinions on the most confidential basis, those are not subject to investigation by anybody. And if they are it will wreck the Government.”
In so writing to Secretary Wilson, and in further amplifying these principles, the President was exercising a right, which is his, and his alone, to determine what action is necessary to maintain the proper separation of powers between the executive and legislative branches of the Government. In the orderly administration of the Government, the head of each executive agency directs the manner in which these principles are enforced.
The underlying reasons for these principles are set forth in the President’s letter of May 17, 1954. It is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising each other on official matters. It is essential, if channels of information are to be kept open, that confidences among employees should not be breached.
It will continue to be this administration’s policy to keep the Congress and the people fully informed of what is being done in the executive branch. An employee is not free merely to exercise his own discretion but in the final analysis information will be withheld only when the President or agency heads acting under the President’s authority or instruction determine it is contrary to the public interest to disclose it.
All of the above, of course, is subject to the Executive order dealing with the classification of information in the interest of security, and to the various statutes and regulations of the department and agencies relating to information to be held in confidence.
I hope this answers your inquiry.
Sincerely, GERALD D. MORGAN, _Special Counsel to the President_
APPENDIX C
_Correspondence on the Right of Access to Information by the General Accounting Office_
_November 12, 1958_
Hon. DWIGHT D. EISENHOWER, _President of the United States, Washington, D.C._
DEAR MR. PRESIDENT: I just returned to Washington for a hearing of the Government Information Subcommittee. The subcommittee, I understand, will inquire into the matter of General Accounting Office access to Air Force Inspector General’s reports. In that context, my attention has been directed to your press conference comments of November 5, and to some newspaper speculation about those comments.
The text of your remarks to which I refer is as follows:
“Q. (Clark R. Mollenhoff, Des Moines Register). Mr. President, you have mentioned the spending in the Defense Department here as one of the important issues, and the General Accounting Office, which is the watchdog on frauds and extravagance in the various agencies, has been barred from reports over in the Air Force and the Defense Department generally, and on this they claim that they have authority from you to withhold reports any time it is ‘inexpedient to do so.’
“I wonder if you have given that authority and if you feel that the GAO should have a full rein to go in and investigate all indications of fraud and extravagance.
“The PRESIDENT. You are obviously talking about some special thing that I would have to study before I could make—give an answer.
“I have stated this time and again: I believe that every investigating committee of the 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.
“Q. (Clark R. Mollenhoff, Des Moines Register). Well, they claim this, Mr. President, under executive privilege.
“The PRESIDENT. No, that’s all I have to say—I told you that is all I had to say for the moment.”
While this question-and-answer exchange did not identify Inspector General reports, and while you did preface your comment by saying this obviously referred to some special thing you would have to study before giving an answer, I would nevertheless like to ask this: Did you mean to imply by your comments that the complete text of Inspector General reports, including recommendations, be made available to Congress and the General Accounting Office?
Respectfully, CLARE E. HOFFMAN
THE WHITE HOUSE, _Washington, November 12, 1958._
Hon. CLARE E. HOFFMAN, _House of Representatives, Washington, D.C._
DEAR MR. HOFFMAN: Thank you for your letter inquiring about comments in my November 5 press conference.
I believe, of course, that the public, the Congress, and such auditing units as the General Accounting Office should have all the information departments and agencies can properly make available. However, the public interest also demands order and efficiency in the operation of these departments and agencies. And 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. In this connection, recommendations of inspectors general have been a most useful advisory tool in administering the military departments; and historically, recommendations and other advisory matter in such reports have not been released. I think this practice is a correct one, and is in the best interest of the Nation. At the same time, I want to add that the facts are distinct from advice and recommendations in these reports. It is my understanding that all the facts developed in the inspector general’s report to which you refer are being made available at the request of the General Accounting Office.
Sincerely, DWIGHT D. EISENHOWER
UNITED STATES GENERAL ACCOUNTING OFFICE, OFFICE OF GENERAL COUNSEL, _Washington, D.C., November 4, 1958_.
MEMORANDUM ON RIGHT OF THE COMPTROLLER GENERAL TO ACCESS TO A REPORT OF THE INSPECTOR GENERAL OF THE AIR FORCE ENTITLED “SURVEY OF MANAGEMENT OF THE BALLISTIC MISSILES PROGRAM”
The basic statutory authority of the Comptroller General for access to records of departments and agencies is set forth in section 313 of the Budget and Accounting Act, 1921 (31 U.S.C. 54). Section 313 provides:
“_All departments and establishments shall furnish to the Comptroller General such information_ regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices _as he may_ from time to time _require of them_; and the Comptroller General, or any of his assistants or employees, when duly authorized by him, shall, for the purpose of securing such information, have access to and the right to examine _any_ books, documents, papers, or records of _any_ such department or establishment. The authority contained in this section shall not be applicable to expenditures made under the provisions of section 291 of the Revised Statutes.”
It will be noted that the only exception in section 313 relates to expenditures made under section 291, Revised Statutes (31 U.S.C. 107), which authorizes the Secretary of State to account for certain confidential expenditures in connection with intercourse or treaties with foreign nations by certificate where, in his judgment, he may think it advisable not to specify the details of such expenditure. Since that is the only exception stated and following the legal maxim that the specific setting forth of one type of exception precludes others from arising, it seems clear that the Comptroller General may require, and the departments are required to furnish, documents, etc., as to any other transaction or activity. Also, the language of section 313 itself [except as to the expenditures under 291 R. S.] in requiring the departments to furnish such information as the Comptroller General “may require of them” and its requirement that he be _given access to any_ documents of the departments, clearly gives him access to _all_ such documentation. If he has access to _any_ document, he has access to _all_. The legislative background of the Budget and Accounting Act, 1921, makes no qualification as to what records can be required; the provision itself apparently being considered sufficiently specific. The legislative reports do bring out that one of the principal functions of the Comptroller General is to enable the Congress to be kept advised as to expenditures of the Government, and that the Comptroller General is expected to criticize extravagance, duplication, and inefficiency in executive departments. There is no doubt, in passing the act, the Congress did not intend that the executive agencies could, or would, withhold any books, documents, papers, or records needed by the Comptroller General. Otherwise, the very purpose of the act would be nullified.
The authority and duty of the Comptroller General was amplified by section 206 of the Legislative Reorganization Act of 1946 (31 U.S.C. 60), which authorized and directed him to make expenditure analyses of each agency in the executive branch of the Government which “will enable Congress to determine whether public funds have been economically and efficiently administered and expended” and to make reports thereon from time to time to the Committees on Government Operations, and Appropriations and other committees having jurisdiction over legislation relating to the operation of the agencies involved. The work of the Comptroller General, together with the activities of the Committees on Government Operations, were to serve as a check on the economy and efficiency of administrative management. See pages 6 and 7, Senate Report No. 1400 on the Legislative Reorganization Act of 1946.
The Congress has also directed that the Comptroller General in performing his duties give full consideration to the administrative reports and controls of the departments and agencies. The Government Corporation Control Act specifically provides in section 301 (a) (31 U.S.C. 866), “That in making the audits ... the Comptroller General shall, to the fullest extent deemed by him to be practicable, utilize reports of examination of Government corporations made by a supervising administrative agency pursuant to law.” The legislative reports on that act, Senate Report 694, page 10, contains the following significant language:
“The audit provisions are intended to give the Congress the independent audit reports of its agent, the Comptroller General, as to the operations and financial condition of every Government corporation in which the Government has a capital interest.... If the audit by the Comptroller General is to be a truly independent audit, he must not be restricted in such a way as to prevent him from examining into and reporting the transactions of any Government corporation to the extent deemed by him to be necessary.
“The Comptroller General has stated that in making his audits he will give full consideration to the effectiveness of the existing systems of internal accounts, procedures, and controls and of external examinations by an administrative supervisory agency. The bill includes a specific provision requiring the Comptroller General in making his audits to utilize, to the fullest extent deemed by him to be practicable, reports of examinations of Government corporations by a supervising administrative agency pursuant to law.”
The Budget and Accounting Procedures Act of 1950 requires each executive agency to maintain systems of accounting and internal control and provides, in section 117 (a) (31 U.S.C. 67 [a]), that the Comptroller General in determining auditing procedures and the extent of examination to be given accounts and vouchers give consideration to “the effectiveness of accounting organizations and systems, internal audit and control, and related administrative practices of the respective agencies.”
The Comptroller General is required to audit the activities of the executive departments and agencies; to make expenditure analyses to determine whether funds have economically been expended; and to give consideration to the departments’ internal audit and control and related administrative practices. To perform these duties he is given the clear statutory authority to require information of the departments and agencies regarding their organization, activities, and methods of business, coupled with the right to access to _any_ books, documents, papers, or records of any such establishment (except as to the confidential State Department funds).
There have been no court cases construing the statutes giving the Comptroller General access to records. However, in 1925, the Attorney General in an opinion to the Secretary of War (34 Op. Atty. Gen. 446), concerning a request by the Comptroller General for information relative to an award of a contract showing that the lowest bid was accepted, or if otherwise, a statement for the reasons for accepting other than the lowest bid, advised, in part, as follows:
“It will be observed that the Comptroller General states that this requirement is made necessary in order that a satisfactory audit may be made. What papers or data he should have to make such an audit would seem to be a matter solely for his determination. Moreover, section 313 of the Budget and Accounting Act provides (p. 26):
“All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of his assistants or employees, when duly authorized by him, shall, for the purpose of securing such information, have access to and the right to examine any books, documents, papers, or records of any such department or establishment....”
Questions as to whether the General Accounting Office has a right to access to records claimed to be confidential for security or other reasons have arisen from time to time and the General Accounting Office has always taken the position that it has the right to the information, even though certain provisions of law relating to disclosure might be applicable to it.
The General Accounting Office recognizes that certain of the functions of the inspectors general, such as criminal and personnel investigations, are of a confidential nature and it will normally accept summaries of facts contained in such reports to the extent they are needed in connection with its work. However, the inspectors general also have as a part of their respective missions and duties responsibility for conducting inspections, surveys, and examinations of the effectiveness of operations and overall efficiency of a command, installation, or activity. These functions may be performed on a periodic or special basis as directed by competent authority. The performance of these functions constitutes an important part of the process of management evaluations and internal reviews as distinguished from criminal or personnel investigations. They provide officials and appropriate personnel of authority with an independent appraisal of the effectiveness of operations and overall efficiency. Moreover, a very considerable part of the inspections and reviews made by the inspectors general involve reviews of procedures and policies and as such are an important segment of the internal reviews and control which the General Accounting Office, under section 117 (a) of the Budget and Accounting Procedures Act of 1950 is required to consider and recognize in determining the audit procedures to be followed in its reviews.
The scope of inspection and survey programs of the inspectors general is similar in character to much of the work the General Accounting Office has scheduled in requirements, procurement, supply management, and research and development areas. The programs of the Deputy Inspector General for Inspection of the Air Force covering the period July 1, to December 31, 1958, include (1) a survey of Air Force procurement methods (advertising versus negotiation); (2) a survey of procurement quantitative and qualitative program changes; (3) a survey of procurement of commercial communications and utility services; (4) a survey of contract cost overruns; (5) a survey of maintenance programs; (6) a survey of modification programs; (7) a survey of the application of electronic data processing systems and other like subjects. All of these subjects represent internal and management evaluations which would clearly be a part of “internal audit and control” within the meaning of section 117 (a) of the Accounting and Auditing Act of 1950. It is essential that such reports be made available to the General Accounting Office in order that it can evaluate the effectiveness of the department’s system of internal control and to preclude unwarranted and unnecessary duplication of effort in the internal audit and the independent review made by this Office. The Air Force Inspector General’s report on the ballistic missiles program clearly falls within the term “internal audit and control.”
The Secretary of the Air Force in refusing the Comptroller General access to the Inspector General’s report on the ballistic missiles program stated that the Inspector General’s reports are prepared solely for the use of responsible officials within the Air Force, and that the objective of self-criticism can be obtained only if the Inspector General’s organization has the assurance that its reports will, without exception, be kept within the Department. The Secretary also stated that the report in question concerned the internal management of the Department, and was prepared solely for the benefit and use of those officers and employees of the Department who are responsible for its administration, and that the release of such reports to persons outside the Department would have a serious effect on the effective administration of the Department. The Secretary concluded that these considerations compelled him to conclude that the public interest would best be served by not releasing the report.
It is our understanding that the position of the Secretary is premised on paragraph 151 (b) (3) of the Manual for Courts Martial (1951) which was prescribed by the President on February 8, 1951, through Executive Order 10214, pursuant to the act of May 5, 1950 (64 Stat. 107), and on the general basis that the heads of executive departments have the right to withhold information or papers which they deem confidential, in the public interest.
The Manual for Courts Martial, 1951, Executive Order 10214, dated February 8, 1951, was issued pursuant to article 36 of the act of May 5, 1950 (64 Stat. 120). Article 36 (a) provides:
“The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he deems practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which shall not be contrary or inconsistent with this code.”
Article 151 (b) (3) of the Manual for Courts Martial provides:
“The Inspectors General of the various armed forces, and their assistants, are confidential agents of the Secretaries of the military or executive departments concerned, or of the military commander on whose staff they may be serving. Their investigations are privileged unless a different procedure is prescribed by the authority ordering the investigation. Reports of such investigations and their accompanying testimony and exhibits are likewise privileged, and there is no authority of law or practice requiring that copies thereof be furnished to any person other than the authority ordering the investigation or superior authority. However, when application is made to the authority by court-martial certain testimony, or an exhibit, accompanying a report of investigation, which testimony or exhibit has become material in a trial (to show an inconsistent statement of a witness, for example), he should ordinarily approve such application unless the testimony or exhibit requested contains a state secret or unless in the exercise of a sound discretion he is of the opinion that it would be contrary to public policy to divulge the information desired.
“In certain cases, it may become necessary to introduce evidence of a highly confidential or secret nature, as when an accused is on trial for having unlawfully communicated information of such a nature to persons not entitled thereto. In a case of this type, the court should take adequate precautions to insure that no greater dissemination of such evidence occurs than the necessities of the trial require. The courtroom should be cleared of spectators while such evidence is being received or commented upon, and all persons whose duties require them to remain should be warned that they are not to communicate such confidential or secret information....”
Since the Manual for Courts Martial was issued pursuant to the authority of the President to prescribe procedure for such trials, and Article 151 (b) MCM by its language is addressed to procedures of such courts, it obviously does not affect access by the General Accounting Office to Inspector Generals reports determined by the Comptroller General to be necessary to the performance of his work, particularly where the report requested is not one dealing with personnel or criminal investigations.
Air Force Regulation 120-3, paragraph 9, October 11, 1954, and similar regulations provide:
“Disclosure of or access to matters pertinent to an inquiry or investigation will be limited to persons whose official duties require such knowledge. The Manual for Courts Martial, 1951, states that inspector-general investigations are privileged information. The same privileged status applies to inquiries and investigations conducted under this Regulation. Also paragraph 3, AFR 190-16, 29 July 1954, excludes investigative reports and reports of inspectors general and base inspectors from release to the public as information. Reports by investigators will not be released or disclosed outside the Air Force without approval of the Secretary of the Air Force.”
Presumably these regulations were issued pursuant to section 161, Revised Statutes, title 5, United States Code, section 22, or similar authority, authorizing the head of a department to issue regulations, _not inconsistent with law_, for the conduct of his department and the custody and use of its records. Since under section 313 of the Budget and Accounting Act the Secretary is required to give the Comptroller General access to the records, any construction of the Air Force regulation denying the Comptroller General access is improper, and the regulation to that extent, being inconsistent with law, has no effect.
With reference to the right or privilege of the head of the “Executive” branch of the Government to refuse to the legislative and judicial branch of the Government free access to records in the custody of the executive departments, support for such claim of right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty. Gen. 45, and cases referred to therein.
Assuming, arguendo, that such right or privilege does exist, we do not believe it warrants an executive agency denying to the Comptroller General information or access to its documents in view of section 313 of the Budget and Accounting Act which clearly provides that “all departments ... shall furnish ... information ...” required by the Comptroller General and that he shall have “access to and the right to examine any ... documents of any such department....” The opinion of the Attorney General in 1925, 34 Op. Atty. Gen. 446, discussed earlier, clearly recognizes the prerogative of the Comptroller General to determine what papers he should have to enable him properly to perform his audits and that the departments are required to furnish them.
The right or privilege asserted from time to time by the executive branch was considered in a study by the staff of the House Committee on Government Operations entitled “The right of Congress to obtain information from the Executive and from other agencies of the Federal Government,” committee print dated May 3, 1956, and in great detail by the House Committee on Government Operations in connection with Public Law 85-619 approved August 12, 1958, as were the court cases cited and relied upon by the Attorney General. See House Report No. 1461, 85th Congress, 2d session. Also, there was there considered a line of later decisions starting with _McGrain_ v. _Daugherty_, 273 U. S. 135 (1927) which upheld the power of Congress to require information sought for legislative purposes. None of the cases relied upon by the Attorney General involved demands by the Congress for information from the executive agencies. This was considered in a study on the matter furnished the committee by the Attorney General. See page 2938 of the printed hearings before a subcommittee of the House Committee on Government Operations on June 20 and 22, 1956, on “Availability of Information from Federal Departments and Agencies” wherein after citing and quoting from numerous court decisions he stated “None of the foregoing cases involved the refusal by a head of department to obey a call for papers or information. There has been no Supreme Court decision dealing squarely with that question.”
As indicated, the precise question of whether the Congress has a right to obtain information from the Executive which it refuses to furnish because of its confidential nature has not been the subject of a court decision. Where information sought by Congress by an executive department has been refused, the Congress has, at times, succeeded in bringing sufficient pressure to bear to obtain the information, or the executive department has, upon reconsideration, relented and furnished it. At other times the Congress has not pressed the matter—possibly because of its feeling that the President was in such a position that he should know whether the information should be withheld, or that the Congress had no machinery to force his compliance—and the information was not furnished. But, regardless of whether such right or privilege exists, it is clear that the Congress in passing on future appropriations and other legislation has a right to know whether the funds appropriated are being properly and efficiently used for the purposes it intended and that any information available in that regard should be available to the Comptroller General.
In view of the above, and in the absence of any judicial determination specifically dealing with the rights of the Comptroller General under section 313, we do not believe that the position of the Secretary of the Air Force that the report in question can be legally withheld is proper.
ROBERT F. KELLER, _General Counsel_
_Letter from the Attorney General to the President_
_December 22, 1960_
The PRESIDENT, _The White House_.
DEAR MR. PRESIDENT: You have requested my advice whether, under the Constitution and laws of the United States, you have the authority as Chief Executive to issue the two attached directives to, respectively, the Secretary of State and the Secretary of the Treasury, concerning the availability of mutual security program funds for the expenses of the Office of the Inspector General and Comptroller established under section 533A of the Mutual Security Act of 1954, as amended.
In an opinion I have furnished you at your request, I have advised you of my conclusions that: First, the view taken by the Comptroller General in his letter of December 8, 1960, that the proviso contained in section 533A(d) of the Mutual Security Act of 1954, as amended, has operated to cut off the funds here in question, is erroneous. Second, that if this view of the Comptroller General as to the meaning of the proviso is correct, the proviso is unconstitutional. Third, that therefore, despite the Comptroller General’s letters of December 8, 1960, and December 13, 1960, these mutual security program funds continue to be available as heretofore for the expenses of the Office of the Inspector General and Comptroller. The reasons for these conclusions are set forth at length in my opinion.
Your directives to the Secretaries of State and the Treasury are, you advise me, in your judgment desirable to insure that mutual security program funds will be available until the end of your term of office on January 20, 1961, as heretofore for the expenses of the Office of the Inspector General and Comptroller. Under these circumstances, I am of the opinion that you, as Chief Executive, have the authority to issue the directives.
Respectfully, WILLIAM P. ROGERS, _Attorney General_
_Opinion of the Attorney General of the United States Dated December 19, 1960_
MUTUAL SECURITY PROGRAM—CUTOFF OF FUNDS FROM OFFICE OF INSPECTOR GENERAL AND COMPTROLLER
Section 533A(d) of the Mutual Security Act of 1954 added by section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253), which directs that the expenses of the Office of the Inspector General and Comptroller with respect to programs under the Mutual Security Act be charged to the appropriations made to carry out such programs, _provided_ that all documents, reports, and other materials relating to the operations and activities of that Office are furnished upon request to the General Accounting Office, or to any appropriate congressional committee or duly authorized subcommittee, does not authorize the funds of the Office of the Inspector General and Comptroller to be cut off because of the failure of the State Department to furnish certain documents relating to that Office to a congressional subcommittee, if the President has issued a certificate pursuant to section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961 (74 Stat. 778), to the effect that he has forbidden the production of those documents and states his reasons for so doing. A contrary conclusion reached by the Comptroller General is incorrect, and, therefore, funds continue to be available as heretofore for the Office of the Inspector General and Comptroller.
The proviso in section 533A(d) does not expressly authorize the funds of the Office of the Inspector General and Comptroller to be cut off, and such a drastic consequence should not lightly be inferred from ambiguous statutory language. Other provisions of the Mutual Security Act of 1959, the Mutual Security Act of 1960 (74 Stat. 134), the Mutual Security and Related Agencies Appropriation Act, 1960 (73 Stat. 717), and the Mutual Security and Related Agencies Appropriation Act, 1961, indicate a congressional purpose not to compel the disclosure of information concerning the mutual security program which the President considers to be incompatible with the security of the United States. Section 533A(d) should be read in the light of this purpose.
Section 533A(d) has been suspended by section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961, which provides that the failure to furnish documents, etc., to Congress or to the Comptroller General will not result in a cutoff of appropriated funds if the President certifies that he has prohibited the production of the documents and states the reasons for this action.
A construction of the proviso to section 533A(d), requiring funds for the Office of the Inspector General and Comptroller to be cut off for failure to supply documents, notwithstanding the President’s certification, must be avoided because it not only creates constitutional doubts, but would, if correct, render the proviso unconstitutional. Congress cannot by direct action compel the President to furnish to it information the disclosure of which he considers contrary to the national interest. It cannot achieve this result indirectly by placing a condition upon the expenditure of appropriated funds.
APPENDIX D
_Letter from President Kennedy to the Secretary of Defense_
_February 8, 1962_
DEAR MR. SECRETARY: You have brought to my attention the fact that the Senate’s Special Preparedness Investigating Subcommittee intends to ask witnesses from your department to give testimony identifying the names of individuals who made or recommended changes in specific speeches.
As you know, it has been and will be the consistent policy of this administration to co-operate fully with the committees of the Congress with respect to the furnishing of information. In accordance with this policy, you have made available to the subcommittee 1500 speeches with marginal notes, hundreds of other documents and the names of the fourteen individual speech reviewers, eleven of whom are military officers. You have also made available the fullest possible background information about each of these men, whose record of service and devotion to the country is unquestioned in every case; and you have permitted the committee staff to interview all witnesses requested and to conduct such interviews outside the presence of any departmental representative. Finally, you have identified the departmental source of each suggested change, and offered to furnish in writing an explanation of each such change, and the policy or guideline under which it was made.
Your statement that these changes are your responsibility, that they were made under your policies and guidelines and those of this administration and that you would be willing to explain them in detail, is both fitting and accurate, and offers to the subcommittee all the information properly needed for purposes of its current inquiry. It is equally clear that it would not be possible for you to maintain an orderly department, and receive the candid advice and loyal respect of your subordinates, if they—instead of you and your senior associates—are to be individually answerable to the Congress as well as to you for their internal acts and advice.
For these reasons, and in accordance with the precedents on separation of powers established by my predecessors from the first to the last, I have concluded that it would be contrary to the public interest to make available any information which would enable the subcommittee to identify and hold accountable any individual with respect to any particular speech that he has reviewed. I therefore direct you, and all personnel under the jurisdiction of your department, not to give any testimony or produce any documents which would disclose such information; and I am issuing parallel instructions to the Secretary of State.
The principle which is at stake here cannot be automatically applied to every request for information. Each case must be judged on its own merits. But I do not intend to permit subordinate officials of our career services to bear the brunt of congressional inquiry into policies which are the responsibilities of their superiors.
Sincerely yours, JOHN F. KENNEDY
APPENDIX E
_Executive Privilege Correspondence between President Kennedy and Congressman John E. Moss_
February 15, 1962
_The Honorable John F. Kennedy The President of the United States The White House Washington, D.C._
Dear Mr. President:
In your letter of February 8, 1962 to Secretary McNamara you directed him to refuse certain information to a Senate Subcommittee. The concluding paragraph of your letter stated:
“The principle which is at stake here cannot be automatically applied to every request for information. Each case must be judged on its merits.”
A similar letter from President Eisenhower on May 17, 1954 also refused information to a Senate Subcommittee, setting forth the same arguments covered in your letter. President Eisenhower did not, however, state that future questions of availability of information to the Congress would have to be answered as they came up.
I know you are aware of the result of President Eisenhower’s letter. Time after time Executive Branch employees far down the administrative line from the President fell back on his letter of May 17, 1954 as authority to withhold information from the Congress and the public.
Some of the cases are well known—the Dixon-Yates matter and the investigation of East-West trade controls, for instance—but many of the refusals based on President Eisenhower’s letter of May 17, 1954 received no public notice. A report of the House Committee on Government Operations covering the five years from June, 1955 through June, 1960 lists 44 cases of Executive Branch officials refusing information on the basis of the principles set forth in the May 17, 1954 letter.
I am confident that you share my belief that your letter of February 8, 1962 to Secretary McNamara should not be seized upon by Executive Branch employees—many of them holding the same policymaking positions of responsibility they did under the Eisenhower Administration—as a new claim of authority to withhold information from the Congress and the public. A Subcommittee staff study indicates that during the year between the time you took office and February 8, 1962 the claim of an “executive privilege” to withhold government information was not used successfully once, compared to the dozens of times in previous years administrative employees held up “executive privilege” as a shield against public and Congressional access to information.
Although your letter of February 8, 1962 stated clearly that the principle involved could not be applied automatically to restrict information, this warning received little public notice. Clarification of this point would, I believe, serve to prevent the rash of restrictions on government information which followed the May 17, 1954 letter from President Eisenhower.
Sincerely, /s/ John E. Moss Chairman
THE WHITE HOUSE _Washington_
_March 7, 1962_
Dear Mr. Chairman:
This is in reply to your letter of last month inquiring generally about the practice this Administration will follow in invoking the doctrine of executive privilege in withholding certain information from the Congress.
As your letter indicated, my letter of February 8 to Secretary McNamara made it perfectly clear that the directive to refuse to make certain specific information available to a special subcommittee of the Senate Armed Services Committee was limited to that specific request and that “each case must be judged on its merits.”
As you know, this Administration has gone to great lengths to achieve full co-operation with the Congress in making available to it all appropriate documents, correspondence and information. That is the basic policy of this Administration, and it will continue to be so. Executive privilege can be invoked only by the President and will not be used without specific Presidential approval. Your own interest in assuring the widest public accessibility to governmental information is, of course, well known, and I can assure you this Administration will continue to co-operate with your subcommittee and the entire Congress in achieving this objective.
Sincerely, /s/ JOHN F. KENNEDY
Honorable John E. Moss Chairman Special Government Information Subcommittee of the Committee on Government Operations House of Representatives Washington, D.C.
Transcriber’s Notes
pg 27 Changed: political figures organized a constuction to: political figures organized a construction
pg 57 Changed: records or testify even when suppoenaed to: records or testify even when subpoenaed
pg 81 Changed: effective administration that employes to: effective administration that employees
pg 164 Changed: and Hardy decided to to try to: and Hardy decided to try
pg 238 Changed: executive privilege in withholdng to: executive privilege in withholding