May 10, 1973
Page 15161
CONGRESSIONAL ACTION AGAINST SECRECY
Mr. MUSKIE. Mr. President, on Tuesday and Wednesday of this week, two distinguished Members of Congress testified to joint Senate hearings on executive privilege and Government secrecy. Both Senator HAROLD E. HUGHES of Iowa and Representative PATSY T. MINK of Hawaii strongly and specifically recommended legislative action to assure congressional control over executive secrecy and to monitor the frequent abuses of secrecy with which we are, again, becoming sadly familiar.
I ask unanimous consent that the statements they presented to the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, and to the Subcommittee on Separation of Powers and on Administrative Practice and Procedure of the Committee on the Judiciary be printed in the RECORD for the benefit of all those
interested in congressional action against unjustified secrecy.
There being no objection, the statements were ordered to be printed in the RECORD, as follows:
STATEMENT OF SENATOR HAROLD E. HUGHES MAY 8,1973
EXECUTIVE PRIVILEGE AND GOVERNMENT SECRECY
It is a privilege to appear before these distinguished subcommittees to offer a few personal observations as a Senator and former Governor about the overriding danger to our free institutions of secrecy in government. We of the present Congress and our predecessors have let this matter slip too long. We cannot allow the secrecy in government that has been built up through the years to remain built in for future generations.
It is self-evident that, without an unacceptable level of government secrecy, Watergate scandals that now rock the nation could never have taken place.
The hazard is that, in our immediate preoccupation with the sordid criminality of Watergate, we might lose sight of the fact that the secrecy we associate with Watergate is pervasive throughout our government operations and that it is imperative that we take decisive, corrective measures while the iron is hot.
In this light, the present series of joint hearings by these subcommittees assume an extraordinary importance to the preservation of our free institutions.
The extended concept of "executive privilege," of course, has become one of the key fronts for administrative secrecy. So far as having any basis in the Constitution or in statute, the concept is, as Senator Ervin has so aptly put it, "executive poppycock." So far as it has worked out in a practical way in our government, it would be more appropriately termed "executive cover-up."
The basic issue before us is one of information – information withheld from the Congress on one pretext or another and information withheld from the people on alleged grounds of national security.
"The people's right to know" is not a pious shibboleth; it is the cornerstone of our democracy.
Under our tripartite system of government, the determination of national priorities cannot be the executive's private piece of pie. But this is what secrecy in government makes possible – and this is what we are seeing today and have seen before in the administration of both foreign and domestic policy.
The only ones to benefit from secrecy are those with something to hide – mistakes, waste, corruption, or indefensible policies. If decisions cannot stand the light of public and Congressional scrutiny, those decisions are probably wrong.
James Reston of the New York Times put it well: "We deeply, almost instinctively, believe that the success of any group of people in dealing with their common problems rests on their knowledge and understanding of the problems to be solved, and on their intelligence, judgment, and character in meeting those problems. And the conclusion drawn from this is that the intelligence of the people, if well informed, will probably produce more satisfactory solutions than any leader or small band of geniuses is likely to produce."
One way we get this knowledge and understanding is through free communications media, and in the protection of the First Amendment many of you members of these subcommittees have given the nation invaluable service. While the Watergate mess was festering, some segments of the press were slumbering or intimidated, but other segments were working night and day uninhibited by threats and undeceived by coverups. In due time, the entire communications establishment, to its credit, rallied to the cause of bringing out the truth.
Since the Constitution vests in the Congress all legislative power, the Congress needs all information necessary and proper to do its work of developing laws and overseeing their proper execution. Our need to know is total. I sometimes wonder whether the Executive Branch could paralyze the Congress even more effectively by giving us too much information rather than too little, but that is not the problem we face at the present time. No one would want to see a copy of every memo, every document, every file on a major policy question.
But we do have the right to make inquiries and to demand fully documented answers to our questions.
A few weeks ago, I had an opportunity, along with several other members of Congress, to participate in a conference on "The Congress and the Executive: The Constitutional Question."
The interchange among scholars, former officials, and current officeholders was enlightening and provocative. I was particularly impressed with comments on executive privilege by Professor Raoul Berger of Harvard Law School, who has also testified before your committees. Professor Berger said in this Conference, as he testified before these Subcommittees, that executive privilege is a myth without constitutional warranty and urged that we not sanctify it or make it respectable by legislation.
I hope you will bear his carefully researched conclusions in mind when considering legislation that deals with this question of executive privilege. It is clear to me that bad history has been used to justify bad practices of withholding information.
Executive privilege is a license to kill – not people, but information, investigations, and ultimately the truth. These committees exposed the logical absurdity of the present Administration's position when it obtained the shocking admission from the now-resigned Attorney General that executive privilege could be extended to every federal employee.
Unlimited use of executive privilege is the first step toward no-holds-barred government.
It is one thing for the President to authorize his closest advisers not to testify about their confidential advice to him, but quite another to forbid them to tell what they know to responsible authorities. Yet this Administration tried to forbid Clark Mollenhoff from telling what he knew about the Air Force's efforts to fire Ernest Fitzgerald for his courageous exposures of waste and inadequacies in the C-5A program. And when the President in a news conference admitted firing Fitzgerald, his own press secretary contradicted him. How can we get at the truth, which in this case as well involves a possible violation of existing laws governing employees' rights, when executive privilege – read executive cover-up – is invoked?
Our hope for a prompt and thorough investigation of the Watergate scandals was seriously threatened by the White House announcement last week that present and former White House officials were to invoke executive privilege in connection with conversations with the President, conversations with each other involving communications with the President, and Presidential papers, "all documents produced or received by the President or any members of the White House staff." It seems inconsistent, and wrong for the President to rule out any immunity from prosecution for these men and yet grant this blanket immunity from testifying on the documents which flow into or out of the White House. We want to get lawbreakers, wherever they have been employed.
The offenses under investigation are very serious felonies – with sizable fines and lengthy jail terms for those who may be convicted.
Let us be very blunt about this. Public opinion polls indicate that there is a widespread suspicion in this country that the President himself may have had some knowledge of these events. While there is no evidence to support this and most of us don't believe it, we do need to know the truth. And until we get a full explanation of what happened, our mere uncertainty will undermine the power and prestige of the Presidency. For the good of the President and the people alike, executive privilege must not be allowed to obstruct full disclosure and justice.
Senator Fulbright has already discussed with you some of the problems which the Foreign Relations Committee has had in obtaining information about American agreements with and commitments to other nations. Several proposals have been offered to circumvent this secrecy.
Even in areas not at all involving national security, this Administration has clamped a lid of secrecy on information of great interest to the Congress. For example, it took lengthy litigation to secure release of the Garwin Report for the Office of Science and Technology, which pointed out major deficiencies in the proposed SST.
Let me mention just three other areas where information has been denied to members of the Armed Services Committee, despite the evident utility of such information for the Committee.
Although Pentagon planning is on a five-year basis, and the services admit scheduling procurement outlays for ten years, the Congress is told of budget plans only one year at a time. Thus, each year we buy camels after looking only at their noses.
Requests for long-range plans are routinely denied on the grounds that they are for "internal planning" purposes only. No one would want to deny the President the right to change his mind about future budgets, but I believe the Congress has a right to have access to the same information in order to safeguard the interests of taxpayers.
Secrecy also continues to surround U. S. activities in Indochina. We are told that the North Vietnamese are violating the January cease-fire agreement, but we are denied the facts about what the United States has done or is doing which might prompt such violations. For example, my office has been trying for two months to secure a list of the equipment and materials furnished to South Vietnam under the terms of the cease fire agreement, which permits only piece-for-piece replacement. Still I have no answer, despite the requirement that these deliveries be sent through control points in Vietnam with the information furnished to the Control Commission and thus to the parties to the agreement.
In other words, our government is reluctant to prove to us that we are not ourselves violating the terms of the agreement. Before we are asked to support increased funds to finance this war, we deserve to be told how the existing money has been spent.
A third issue is that of secret activities, such as those performed by the CIA. No one would deny the need to preserve secrecy about the means by which information is obtained on a potential enemy's military capabilities and intentions. But when, instead of gathering intelligence, we intervene secretly in the internal politics of other countries, as in Chile, or when we conduct secret wars, as in Laos, the Congress has a right to know and to pass judgment on these activities.
I am sure you will consider these problems in developing legislation to increase the availability of information to the Congress.
The other aspect of the secrecy question is that of classification – the denial of information to the public at large. Once again, no one would deny the need to protect our own defense secrets. Existing laws already provide deserved penalties for disclosing information vital to the national defense with the intent or effect of harming this country's security.
As we all know, much of the information now classified does not deserve the secret stamp. One set of data with which I have been particularly concerned is the bombing and casualty figures on the war.
Each year that I have been a member of the Senate Armed Services Committee, I have asked the Defense Department for monthly American air combat sorties and bomb tonnage figures for each of the several countries of Indochina. These have been provided, albeit with some discrepancies, but with a classification of "secret."
Why should this information be withheld from the American people? The people bombed know what has happened to them; Hanoi radio reported sortie figures. The only ones who did not know whether or how much we have been bombing in Laos or Cambodia or North Vietnam were the people of the United States, who were being asked to pay for and support this military strategy.
Even today, bombing figures are still aggregated for all of Southeast Asia, and historical figures have yet to be released.
Perhaps more disturbing is the Pentagon's policy of concealing casualty figures. The public has been given only the vaguest information on the number of Americans killed in Laos. Recently, I received a reply from the Defense Department to a question on the number of Americans killed and wounded in Laos, Cambodia, and Thailand during the past three years. This information, important as it may be to understanding continued American involvement in this war, is classified "Confidential." I believe the people have the right to know this information.
One responsible and unobjectionable way of getting such information released, in my view, is for the Congress to require it by law. I have already proposed legislation permitting the Congress to declare that the disclosure of certain information now given to the Congress on a classified basis would not be harmful to the national interest and requiring that it be made public by the Executive Branch. While my proposal deals specifically only with the facts on combat air activities and U.S. casualties, it could be amended in the future to cover other materials now classified.
The abuses of secrecy came home to me most clearly last year during my involvement in the investigation of the unauthorized bombing raids conducted under the command of Air Force General John Lavelle. It took weeks of probing testimony to pry the facts about the bombing out of the Pentagon. Although the Defense Department had allegedly conducted a thorough investigation of the matter, the Armed Services Committee was able to get at the truth, in my opinion, only because we had to act on pending nominations. If we had not had this lever, we might still be in the dark.
Another discovery in the Lavelle case, strikingly similar to what we are reading in the papers today, was evidence of a massive coverup of information. In fact, far more energy appears to have gone into the efforts to conceal the facts in this case than to take corrective actions to see that such violations can never happen again. The Air Force took strong action – removal from command – once it had evidence of General Lavelle's misconduct. But official comments for several weeks referred only to a "resignation" for personal and health reasons. Only persistent efforts by the Congress forced the Pentagon to begin to reveal the full story.
Surely we have reached a sad state of affairs in this country when the gut reaction of people is to disbelieve their government. But the evidence of deceit is too plentiful to be ignored.
Perhaps the more urgent problem for the Congress right now is to prevent the adoption of new laws which strengthen the classifiers and undermine the public's right to know.
Senator Muskie has done a valuable service by ferreting out the new proposals from the 600-page proposed Criminal Code Reform Act, and in calling public attention to what amounts to America's first official secrets act.
This proposed new law strikes me as another shocking attempt by the Administration to manipulate the media: what the White House can't control, it now seeks to punish. The legislation would make it a penalty to release, receive, or publish classified information, regardless of intent or actual injury. In effect, this law would give each man with a rubber stamp a jail key for anyone who disagrees with him. The result would be a stifling censorship by classification.
If this law had been in effect in the past, no doubt there would have been energetic prosecution of those who first told us about My Lai, or General Lavelle's illegal bombing, or the deficiencies of programs like the C-5A.
And if it should become law, you know as well as I that it would not be used to prosecute the Pentagon official who leaks word that, say, the Russians are building some missile twice as good as ours. Instead, it would be used against the man who tells a reporter that the F-14 can't take off from a carrier with a full bomb load or that the CIA is fighting a secret war in the Philippines.
Not only would the source of the information be punished; the reporter and his publisher could go to jail as well. They could not even argue in their defense that the material had been improperly classified.
If we are to eliminate unnecessary classification, we also have to oppose efforts to fortify existing secrecy with such powerful, repressive weapons.
I might add that I resent Executive Branch innuendoes that the Congress cannot keep secrets which are provided to it. I for one am not aware of any instance where a Congressional "leak" harmed the vital interests of this nation. And I would challenge the Executive to show that there were more nondamaging disclosures from this end of Pennsylvania Avenue than from the other. This is a false issue, and no excuse for denying information to the Congress.
Recent history gives numerous examples of the dangerous consequences of secrecy in weakening the bonds of trust and cooperation within the government and with the people.
The efforts by officials to protect themselves and conceal their mistakes is more likely to be a crime, against the national interest, than the attempt to expose such cover-ups.
I would offer only a few more suggestions in conclusion. I am pleased to be a cosponsor of Senator Muskie's proposed amendments to the Freedom of Information Act since they strengthen the rights of citizens and put the burden of proof for concealment on the government.
Although I am reluctant to grant an executive privilege which never should have been asserted, I hope that any legislation you may develop will make any denial of information difficult to invoke and ultimately remediable by some appeal, either to the Congress or the Courts.
On the question of declassification, I have already suggested one possible route: direct legislation if nothing else will avail. A regular process would, of course, be preferable, and along those lines I would favor a third-party public information review board with broad investigative powers like those of the General Accounting Office and composed of members who can exercise professional judgment on the competing requirements of national security and the public interest. Such people would be those with prior experience in journalism and public affairs.
In the long run, the more we unclog the channels of information, the more likely we are to build a vigorous and responsive democracy. Unexamined policies are not worth having; we need open policies, openly arrived at, and tested by informed public debate.
TESTIMONY BY REPRESENTATIVE PATSY T. MINK,
MAY 9, 1973
Mr. Chairman and distinguished members of the Subcommittee, I am delighted to have this opportunity to testify on behalf of the adoption of S. 1520. As a co-sponsor of this legislation in the House, I believe its adoption is essential if we are to preserve the Freedom of Information Act.
Unfortunately, the Freedom of Information Act has been placed under concerted attack by the Executive Branch of our government. The Executive has received considerable support from the Judicial Branch in this regard. Therefore, if we are to restore the purposes of the Act, it will be necessary for Congress to enact sound and strong legislation requiring full disclosure of government information to the people of the United States.
In 1972 when I spoke before a House Subcommittee, I favored a judicial watchdog system for freedom of information. When the Executive refused to disclose information, the matter could be appealed to a court. The court would examine the documents in camera to see whether full or partial disclosure should be required. In this, I placed my trust in the independence and integrity of the judicial system.
Subsequent events, however have brought me to the reluctant conclusion that this protection would be inadequate. I believe that Congress itself must grasp the power to disclose governmental information when the Executive and Judicial branches will not.
When Congress enacted and the President signed the Freedom of Information Act in 1967 its purpose was to require the disclosure of all Federal government information to any member of the public. The only exceptions to the law's disclosure requirement were materials included in nine exemptions listed in the Act.
Of these nine exemptions, the first has proved most vexatious. This applies to matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." The national security exemption, originally intended by Congress to be narrowly construed and implemented, has instead been enlarged and expanded by the Executive Branch to encompass virtually any information the Executive desires to withhold.
Under the slipshod and illicit procedures devised by the Executive to withhold information under the national defense exemption, an army of bureaucrats has been allowed to classify and withhold information at will. According to newspaper reports of the Ellsberg trial, the man who originally classified them "Top Secret" acted on his own authority and judgment. The only training or instruction he ever had in security matters was watching “a movie which had the theme Beware of blondes who are excessively friendly – they may be Russian spies”.
In 1971, 32 other Members of Congress and I filed the first Freedom of Information Act suit ever to reach the United States Supreme Court. As members of the public, and as lawmakers who had to vote on funds for a dangerous nuclear test, we sought information on that test prepared by the government's environmental agencies which are responsible by law for informing the public on environmental hazards. The Executive Branch opposed us every inch of the way. When the U.S. Court of Appeals was audacious enough to insist that the documents be examined in camera by a lower court to see which ones should be released, the Executive Branch sought Supreme Court review of even this threat of intrusion on its right to withhold.
On March 6, 1972, the Supreme Court agreed to review the Appeals Court decision. Two days later the Executive Branch issued an order revising its security classification system.
Henceforth, documents were to be separately classified on a paragraph-by-paragraph basis to facilitate declassification in the event it was needed. This ratified one of the contentions of my suit, that the documents I sought could not be classified in their entirety merely by being stapled to a Secret document.
On January 22, 1973, the Supreme Court issued its decree in the Mink case, which proved to be a disaster for Freedom of Information. In essence, it upheld everything the Executive had done to withhold this information from the Congress and the public. The most damaging part of the decision was the nullification of the doctrine of judicial review. The court held there was no requirement for an in camera inspection of documents to see whether they could be withheld. It said that the simple statement of the Executive that they were classified would suffice. Thus there would be no check or guard against arbitrary Executive efforts to hold back embarrassing or sensitive materials.
The court's preoccupation with national security secrecy was further illustrated on February 5, 1973, when the Chief Justice sent to the Congress 77 proposed new rules for evidence for use in the Federal courts. One of those rules, number 509, sought to apply the grossly expanded "national defense" loophole to bar any such evidence in Federal courts. Under this proposed rule, any attorney representing the government could object to the production of a record on the grounds that disclosure would be "contrary to the public interest." In effect, this would bar disclosure of all government documents unless the private citizen or other plaintiff was able to prove that disclosure was in the public interest. Fortunately, Congress has deferred the otherwise automatic implementation of this and other controversial rules sought by the court.
I might mention another example of Executive efforts to build upon the new-found secrecy power it has gained through palpably erroneous interpretations of the national defense loophole in the Act. Last October, Congress approved legislation declaring that meetings of the hundreds of government advisory committees "shall be open to the public." We provided, however, that this requirement would not apply to meetings where discussions are held of matters exempted under the Freedom of Information Act from public disclosure. Predictably, the government has seized upon this tiny loophole to close these "open" meetings. Apparently, before the administrators will obey our 1972 law we will have to tighten up the Freedom of Information Act.
S. 1142 would make these necessary revisions. One change would amend section 3 to enlarge the right of the public to Federal information. Section 3 would also be amended to require all agencies to furnish any information or records to Congress, or any committee or subcommittee thereof, upon request. This is along the lines of an existing 1928 statute which requires the production of information upon the request of any 7 members of the Committee on Government Operations.
This change is a logical and essential step.
But I would go further. I would urge that if Congress is to become a truly co-equal branch of government, that we must have equal access to government information. This means the establishment of a principle that Congress has the right to all information and its classification or release.
As elected officials each of whom has a constituency of at least half a million people, we have as much right to decide which information shall be released to the public as faceless appointed officials whose only qualification is that they watched spy movies. Members of Congress should be entitled to any Executive Branch information upon request by any 10 members, classified or not. I would only require that Members be responsible for the safe custody of this classified information. If members should want to obtain its declassification so as to enable its release to the public, I propose a new mechanism for Congressional determination of de-classification. I propose the appointment of a special joint committee of the House and Senate. This committee would have the lawful power to declassify security information. If a member obtained information and wished to have it declassified he could refer it to the committee for a required swift decision. Closed hearings or consultations with the Executive branch could be held by the committee prior to its decision. The key factor would be that Congress, the elected representatives of the people, should have this power to declassify.
I feel that the appointment of an outside commission or body for this purpose would be an inadequate remedy. Neither should it be required that a Congressional Resolution be passed by the entire membership of the House or Senate for release of information. Free access of information gathered by our tax dollars is a public right and power to decide this issue.
A House bill contains a provision which is well-deserving of consideration for inclusion in legislation you may approve in this field. It imposes a mandate that a court "shall enjoin" refusal to release government information not exempted from disclosure under the Act. This is an improvement over the Act's current permissive authority to enjoin.
Our bills provide for the payment of attorney's fees and court costs to a successful litigant under the Act. I feel this should be extended to costs and fees at any level in which the litigant is upheld by the Court and not only in cases where the final decision is in favor of the litigant. I believe that certainly in the Mink case our costs should have been reimbursed by the government. Where the Supreme Court remanded the case, I believe that all costs and fees ought to be covered by the government. That is a small price to pay for freedom of information.
In addition, our bills fail to change the existing definition of national security information exempted from mandatory disclosure. We should require that any such information be separately classified by its own executive order, rather than apply one general order as authority to classify all documents. Further, the test of whether the material is secret "in the interest of the national defense or foreign policy" allows too much leeway for the Executive. We should specify in the exemption that only materials whose disclosure would damage current foreign policy activities, or reduce the nation's ability to defend itself against military attack, would be exempt.
It seems to me that strong limitations against secrecy must be invoked by Congress. We have to guard against our inadvertently contributing to the suppression of information from the American people and from Congress. I urge this Subcommittee to work towards the highest standards for openness in all aspects of our government operations. Secrecy must only be tolerated in cases where release of the information will seriously jeopardize our national security or endanger the stability of our foreign relations. Embarrassment of the Executive such as providing internal arguments made against a policy should never be a reason to keep a report secret. The public should be advised of all sides of an issue. The executive must not be characterized as a propaganda agent of its decisions. Executive policies should be able to stand the light of a full public review. All the facts should be made available to the public. We cannot rest until our laws are perfected to safeguard this fundamental principle of a free society.