May 3, 1973
Page 14155
AN ANTISECRECY PLAN
HART. Mr. President, in a recent speech our distinguished colleague from Maine, Senator MUSKIE, made a proposal which I believe deserves our careful attention. Speaking on April 25 at Montclair State College in New Jersey, Senator MUSKIE once again pointed out the dangers of excessive secrecy in Government. He called on Congress to supervise executive secrecy practices by enacting strict standards for the classification and declassification of information, and by establishing a process to review and contest executive secrecy. I commend Senator MUSKIE's speech to the Senate and ask unanimous consent that it be printed in the RECORD.
There being no objection, the address was ordered to be printed in the RECORD, as follows:
AN ANTISECRECY PLAN
Thank you very much for giving me this occasion to be an instructor. Senators spend more time preaching than teaching and I am not sure how quickly I can learn new tricks.
Still I am always mindful of H. G. Wells' observation: "History becomes more and more a race between education and catastrophe," and I am pleased to get on what I am certain will be the winning side.
I want to talk tonight about a very modern problem – secrecy in government, the practices which deny information both to the Congress and the public. But, in an academic setting, it is appropriate to start with a little history, recent and ancient.
I am sure you are all familiar with the debate in Washington over "executive privilege." The phrase is a lawyer’s and a scholar’s term for the idea that the President's advisers are protected from interrogation by the Congress about the confidential advice they give the President.
The reason the term has come into dispute is that the President made a sweeping claim that the "privilege" extended beyond confidential advice to him personally to cover all communications in the Executive Branch if he – and he, alone – determined that disclosure of such information would hurt the national interest.
The Attorney General even told me in hearings I held two weeks ago that if the President "directed a person on his staff who was accused of a crime" not to testify to Congress about his alleged criminal conduct, "that person should not appear and could not appear." Mr. Kleindienst then tried to extend that asserted Presidential power to restrict Congressional investigation to cover all government employees – some two-and-a-half million people. And he said, "Your power to get what the President knows is in the President's hands."
Others who heard that statement were astonished. Some of us found it frightening. Practice has already shown it to be preposterous.
The President has agreed to let White House aides testify before Senator Ervin's Watergate Committee, but his concession on that point has not changed the Administration's broader contention that it retains the power to refuse any other Congressional summons for information. The White House still maintains that Presidential advisers may invoke executive privilege in response to some questions. If such a claim is made, Senator Ervin has said his committee will determine whether or not it is appropriate.
So the issue is not really resolved. We would be mistaken in thinking that a partial victory for common sense in this particular odious business of the Watergate is a lasting victory for the right of Congress and the people to know the truth.
Let me go back to what Attorney General Kleindienst said to me on. April 10: "Your power to get what the President knows is in the President's hands."
Think about that for a minute. Is it true? Is it reasonable? Is it even safe for our democracy?
My own answer is that the doctrine the Attorney General expressed is unconstitutional and profoundly dangerous. The trouble is that views such as his have become the usually unspoken basis for widespread governmental secrecy. That philosophy provides the underpinning of a practice that gives a higher priority to confidentiality than to candor, that encourages deception instead of disclosure and that feeds the suspicion of many Americans that their government will not tell them the truth.
The problem is a broad and complicated one, but the expression, "executive privilege " is a good place to start toward understanding it. It turns out that the phrase is nowhere to be found in the Constitution, has never been defined by the Supreme Court and did not even enter the American language until 1958.
But the idea has been around a long time.
Back in 1621 King James I ran out of money to finance a war in the Netherlands. He made the mistake of convening Parliament for the first time in seven years to get it to levy new taxes.
The Parliament, however, exacted a stiff price for going along. It demanded that the King get rid of his Lord Chancellor, Sir Francis Bacon, certainly one of the most distinguished philosophers in English history. Sir Francis, however, had his faults, and one of them was taking bribes from people who had cases pending in court.
Many people did the same thing. Sir Francis protested that he never let the gifts influence his judgment. But the Parliament, for a number of reasons, wanted him punished.
The King moved in and offered to appoint a Parliamentary commission – whose members he would name – to investigate the charges. The Parliament refused the offer. Instead, Sir Francis made a full confession and resigned his office. The House of Lords sentenced him to a fine of forty-thousand pounds, imprisonment in the Tower of London and prohibited him from ever attending the Royal Court again.
King James commuted much of the sentence, but the fact remains that Parliament carried out its investigation in its own manner, rejecting any royal claim to power over its inquiry or its decision. And when Sir Francis was sent back to his books, it gave King James the money he wanted.
There are several morals to be drawn from that story. The right of Parliament to investigate official misconduct was absolute. The way to enforce that right was through the power of the purse.
In fact, Parliament was continually referred to as the "Grand Inquest" of the nation. The framers of the American Constitution, when they were debating its provisions and then as they argued for its ratification, talked repeatedly about the parallel between Parliamentary power to investigate and Congressional responsibility to perform the same function.
James Wilson, who with Madison was one of the chief architects of the American Constitution, wrote of the English House of Commons, that its members "have checked the progress of arbitrary power and have supported with honor to themselves, and with advantage to the nation, the character of the grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censure; and have appeared at the bar of the house, to give an
account of their conduct, and ask pardon for their faults."
The first test of the scope of the Congressional right to know came in 1792. Major General St. Clair had led a contingent of troops against the Indians in the Northwest Territory, and he got whipped. The Congress wanted to know how the defeat occurred, and the House of Representatives called on the Secretary of War to send it all the records of the expedition.
President George Washington complied. He determined that disclosure was in the public interest, and he acceded to the request of the House. But in a Cabinet meeting about the problem, the idea was born that there were limits on Congress's power, and that the President could try to set them. Private notes by Thomas Jefferson show that the issue of executive discretion about what to reveal and what to conceal from Congress was faced as early as 1792. But in that case, the Congress prevailed.
In 1951, the Congress was investigating the fate of another general, Douglas MacArthur. President Truman had fired him as commander in Korea, and the country was split over its reverence for a great military hero and its belief in the importance of civilian control over the military. General Omar Bradley was summoned to testify, as chairman of the Joint Chiefs of Staff, before joint hearings of the Senate Foreign Relations and Armed Services Committees; and he agreed to appear.
The messages from Washington to General MacArthur and his replies were put into the record and analyzed. General Bradley had to explain the whole sequence of the disagreement between MacArthur and Truman, the efforts to patch things up and the final decision to replace an insubordinate general.
But then senators asked General Bradley what he and President Truman had said to each other about the case. And here General Bradley balked. He said, in effect, that such conversations were privileged; they were private discussions between the President and his top military adviser and they were none of the Senators' business.
General Bradley is a courtly man, and his refusal was polite, but it was absolute. It made many of the Senators angry, and finally, Senator Richard Russell of Georgia called for a vote of the committees on the question of whether or not to order General Bradley to answer the questions. By a vote of 18 to 8, the Senators agreed with Bradley's decision to preserve an area of Presidential privacy, and the issue was resolved.
So the Executive asserted a privilege, and the Congress, reviewing the claim, upheld it. The essential aspect of that incident is that Congress did review the claim. In theory, it could have contested General Bradley's decision and taken him to court to try to force an answer to its questions.
I have gone over this history, not to qualify myself for one of your professor's jobs, but to illustrate the important precedents in our law and our tradition for the right of Congress to investigate official behavior. Usually we do it for the purpose of guiding us in writing laws to correct bad behavior. Sometimes we must do it to gather the facts to impeach an official of the government. There can be no question of our right to get all the facts. Even such a strong President as Andrew Jackson recognized Congressional power to investigate. "Cases may occur," he said, "in the course of (Congress') proceedings in which it may be indispensable to the proper exercise of its power that it should inquire or decide upon the conduct of the President or other public officers, and in every case its Constitutional right to do so is cheerfully conceded."
Now on April 10, I read that statement to the Attorney General. He flatly disagreed with it. I do not understand his disagreement, but it is there, on the record, and it is a disagreement of great importance to the conduct of our government.
The Attorney General's view is that information developed in the Executive Branch is the exclusive property of the Executive and will not be given to the Congress if the President decides to keep it secret. His view is that government information is Presidential property, and working from that opinion, he can justify any decision to conceal that property from the Congress and the people.
My view is that government information is public property. It is compiled at the taxpayers' expense to serve the public interest, not the temporary or limited interests of those officials who act for a time as its custodians.
So here is the conflict. The decision to send White House aides up to testify about their reported involvement in the Watergate conspiracy does not resolve that conflict. It still leaves unresolved the broader question: who shall determine what the people know about their government.
According to the Attorney General, the Executive will make that decision. And once the decision is made, no one else – neither the Congress, nor the courts, nor the common citizen – may reverse it.
Knowledge truly is power. The Attorney General's view – if we allowed it to prevail – would give one branch of the government absolute power through a monopoly of information. The power would extend to telling Congress only those facts a President decided it should have. And it would, logically, extend to giving the public only those pieces of information the President wanted known.
I hope you will agree with me that such a prospect is a nightmare for a democracy. It is standard operating procedure in dictatorships around the world. But the very idea of such an exclusive, unreviewable right lodged in any one office or any one man or any one branch of government is alien to the American concept of a free and open society.
We have good reason to be deeply concerned. That power over information already exists. It is growing, not shrinking. And it endangers every one of us.
Let me give you some specific examples of how the power is exercised. A Senate survey of refusals by the Executive to provide Congressional committees information or testimony they requested between January 1964 and the present turned up 166 examples. Only four of them, all in the last four years, involved formal invocation of the executive privilege claim.
The refusals range over all sorts of issues. The Justice Department, for example, refused to let a House Subcommittee see its files relating to alleged White House intervention to settle a suit involving a steel company's dumping poisonous wastes into the ship channel at Houston, Texas.
The Environmental Protection Agency refused to hand over a study of virus infection in New England water supplies.
Some of these refusals were absolute. In some cases the Congressional committees negotiated compromises which enabled them to get some of the information they were originally denied, but often the refusal succeeded in delaying Congressional action and diverting public attention.
In none of these 166 cases we know of did the Congress put its power to a test in court, one that could be achieved by subpoenaing a reluctant. witness, holding him in contempt for failure to testify or, if necessary, arresting him and creating the conditions necessary for a habeas corpus suit.
The result of not pushing our power to the limit has been to permit the Executive to overstep its boundaries – and to get away with it. Until now, we have backed away from confrontation.
So we have tolerated secrecy we should have contested. And the result has been to let it spread.
In the field of classifying information which the Executive says must be kept secret to protect defense or foreign policy activities, the Congress has never even written a law to supervise administrative practices. The only statute that sets standards for what should be kept secret and for the length of time secrecy is required is a law dealing with atomic energy.
But experts have estimated that the Defense Department files contain some 20 million documents that are classified. State Department records, according to an official of the Department itself, include some 35 million pieces of paper stamped Top Secret Secret or Confidential.
Many of them are a quarter of a century old and a few even date back to before World War I. The only example I know that may be more ridiculous is the policy of the British Foreign Office that the background records of British Involvement in the French and Indian War of 1756 should be kept secret forever, so as not to damage relations with the "colonies."
We know these documents exist, and we know that more are made secret every day. Over 18,000 government employees are authorized to classify information. We also have heard expert testimony that much of this information no longer requires protection from disclosure. Former Supreme Court Justice Arthur Goldberg, who also served as Secretary of Labor and Ambassador to the United Nations, said that no more than 25 percent of the documents really deserved to be kept secret. An Air Force officer who handled classification and security problems for over 40 years believes only one half of one percent of all the Pentagon's secret files actually contain vital. information.
But no one really knows what is in the files or, more importantly, what is being put into them every day. Until 1959 the Migratory Bird Commission and the American Battle Monuments Commission had officials with authority to classify secret papers. For all we know, some of their records may still be hidden away.
And now, as an expression of the view that government information is exclusively government property, the Administration has sent Congress proposed new laws to make any unauthorized disclosure of classified information a crime, one that could be punished by up to three years in jail, and up to $25,000 in fines. These proposed laws would even make it criminal to disclose any information relating to the conduct of foreign policy affecting the national defense.
Such laws would enforce public ignorance by making criminals out of honest men and women who put the public interest above bureaucratic secrecy. They would impose a gag rule both on officials and journalists and prevent those who disclosed classified information from justifying their action by proving to a court that the disclosure did no damage to national security. They would deny you and me the information we need to make intelligent judgments about public policy required of citizens in a democracy. I am confident we will defeat these proposals. There should be penalties – and there already are – for revealing information that damages national security. That damage test is crucial and must be preserved, not discarded, as the Administration would do in sweeping away protections that now exist to insure that vital information is not arbitrarily denied to the public.
But the Congress must go farther than just drawing a line and saying, "Secrecy stops here." It must take positive action to undo governmental secrecy and put the emphasis where it belongs, on systematic disclosure.
Just as we must review and contest assertions of executive privilege when they are improperly claimed, we must review, and contest the day-to-day secrecy that is the practical expression of executive privilege.
I have already introduced legislation to require that judges, reviewing government refusals to disclose classified information to the public, go behind the secret stamp on a document or record to look at the information it contains. Judges would then decide whether or not disclosure would actually harm national defense or foreign policy.
For if the courts will not make such an impartial determination, no one else will. The official who decides to hide information under a rubber stamp will be safe from challenge forever, and we will all be deprived of knowledge that may be crucial.
Beyond judicial review, however, we must move to a new system of supervising the way information is classified, the length of time it stays classified, and the access Congress has to it while it is classified. The Executive now retains exclusive control over all those procedures, even over the ground rules under which Congressmen and their staffs are permitted to inspect classified material.
In March 1972, President Nixon announced s reform of those procedures, but his action did not go far enough. The agencies he prohibited from classifying information were, by and large, agencies like the Canal Zone government, the Postal Service, the Small Business Administration and the Departments of Labor, Agriculture and Interior which never needed such authority to begin with. Under his new order, however, eight now agencies in the Executive Office of the president could be given authority to classify by the President.
It is time to put a Congressional check on the president's discretion in this area, to balance the understandable bureaucratic preference for secrecy against the fundamental assertion that the right of Congress and the public to know amounts to a need to know.
We can achieve this balance either through a new joint Congressional committee or a new agency, similar to the General Accounting Agency, directly responsible to Congress. The new body would have responsibility to review an index the Executive prepared of all information which was being classified, to inspect information listed in the index and to order either an immediate declassification or a speed-up in declassification of information which did not merit prolonged secrecy.
The Executive could contest those orders in court, if it felt they were dangerous, but at the least, the Congress would exert a review function which it now leaves exclusively to the Executive.
Unless there is compelling evidence to the contrary, I believe we should set three years as the standard time for material to be automatically locked away from public view. Any information older than that should be considered declassified and made available on request, subject, of course, to challenge by Executive agencies with a strong case against disclosure.
By enacting such standards and such review procedures into law, the Congress can fulfill its dual obligation – to itself as an equal branch of government and to the people whose liberties we cannot safeguard without knowledge of all government activities. The alternative – the course of inaction – is to restrict our information to the authorized disclosures of official press releases, where only one version of the truth – the sound of one hand clapping – is made public.
James Madison once wrote, "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or both."
The government, in the last analysis, does not belong to the President or to the Congress. It belongs to you. But if you, through the Congress, do not act to assert your control over government – if you do not insist on the power knowledge gives you to control public conduct – you and I will lose popular government. Education will lose that race to catastrophe, and the world will lose the hope of freedom America has given it.