May 28, 1974
Page 16427
GOVERNMENT SECRECY
Mr. MUSKIE. Mr. President, in opening the present series of hearings by the Subcommittee on Intergovernmental Relations into Government secrecy and the security classification system, I spoke of the need for thorough review of and ongoing challenge to the system which now makes it easier to hide material from Congress and the people than to make public that information which we al need to fulfill our responsibilities as legislators and as concerned citizens of an open society. Two distinguished former public servants, McGeorge Bundy and Prof. Arthur M. Schlesinger, Jr., who served with distinction in the Kennedy and Johnson administrations, testified at those hearings last week and urged Congress to make a fresh commitment of its energies and resources to the job of informing itself and the public. Their thoughtful testimony was of great value to the subcommittee, and since I believe it will interest and enlighten other Members of the Senate, I ask unanimous consent that their opening statements be printed in the RECORD:
There being no objection, the statements were ordered to be printed in the RECORD, as follows:
STATEMENT OF McGEORGE BUNDY MAY 22, 1974.
Mr. Chairman: It is a privilege to respond to your invitation to appear before the Senate Subcommittee on Intergovernmental Relations to take part in its hearings on secrecy in government. The subject is of critical importance, because it lies at the intersection between the national imperatives of safety and freedom. Your Committee is planning to focus specifically on pending legislation relating to information classification practices, but in your invitation, Mr. Chairman, you have asked me to reflect more generally "on the advantages and disadvantages of secrecy in a democracy." You have asked me in particular to explore the once conventional supposition that in these matters the President should have great discretion and be burdened with as little Congressional and outside interference as possible. You have asked me to consider whether the standards set for secrecy during World War II and the cold war remain applicable, and whether there are new standards which might be developed and defined. Finally, you have asked me to examine the suggestion frequently made that the practice of secrecy becomes an addiction of those in high office, tending to deafen them to dissenting opinions voiced by those who lack access to secret information and used to exclude dissenters from crucial policy debates.
These questions are broad and deep. Each of us who has been closely engaged in these matters, either as a student or as a participant, could comment on each at a length which would be wearisome and probably unhelpful. I believe that it may be more helpful to your Committee if I confine my opening statement to the expression of a few relatively strong and general convictions, leaving the development of the discussion in the hands of the Subcommittee, so that my further remarks may be responsive to your own present concerns.
The first and most important proposition I can offer is that secrecy in a democracy can never be better than a necessary evil. Ours is an open society, and our foreign policies can never succeed for long if they lack public understanding. There is no virtue in secrecy for its own sake, and much danger. Therefore I find it good to be able to report that compared to the whole range of the information pertinent to public judgment on foreign and defense policy, the amount which truly needs to be kept secret in the national interest is extraordinarily small.
When I went to Washington in 1961 to work for President Kennedy, I had been a professional student of American foreign policy for fifteen years, working for most of that time, on most subjects, without access to currently classified documents. I then received all kinds of clearances and before long I was charged with responsibility for insuring an adequate flow of national security information to the President. With the exceptions I am about to list, this new flow of information was distinguished from what I had known as a private citizen mainly by the inferior quality of its English and the parochial character of its argumentation. It never occurred to me, then or in any of the years following, that access to highly classified information gave me a significantly better grip on the broad issues of national policy than was accessible to attentive friends who had remained in private life. In the deepest sense, therefore, and again with specific exceptions, I believe that it is and has been a myth that because of access to classified documents the White House or the State Department or anyone else in the Government "knows best."
The men and women I respected most in the Executive Branch were not beguiled by the false notion that access to documents with fancy stamps on them gave them a unique wisdom. That is a wholly sophomoric attitude, except where it is used as a deliberate means of defending bureaucratic turf – in which case it should be resisted by the White House, by other agencies, by Congress, and by the public.
Yet there are indeed some real secrets. They are of varying importance and their justifications vary. Before I can turn to your other basic questions, let me list them briefly.
First and most obviously, it is right and necessary that such defense information as the details of military contingency planning and the design of nuclear weapons systems should be secret. It is obvious that if a potential adversary knows just exactly how we propose to defend our strategic forces and just how we would plan to use them if the worst should happen, his task of maintaining deterrent strategic strength can be greatly simplified while ours is greatly complicated. I was briefed repeatedly on these matters while I was in Government. It seemed to me proper that their details should be completely secret, and nothing that I learned gave me any major advantage over students in private life in considering the policy questions of the strategic arms race in the Sixties – except perhaps in the measure that briefings of this sort do tend to intensify one's conviction that a strategic nuclear war would be incomparably the worst failure of statesmanship in all history – leaving World War I and II as models of civilized restraint by all sides.
A second class of necessary secrets relates to current diplomatic negotiations. It is obvious this week, for example, that it is undesirable for the rest of us to press the Secretary of State for a detailed exposition of all that he has heard and said in his current mission to the Middle East.
The third general class of real secrets has related to covert activity abroad. Here we have an area in which it is plain that the national mood has changed dramatically. In World War II it seemed self-evident that a limited amount of such clandestine activity was essential. OSS agents working behind enemy lines were entitled to heavy protection. And in the early years of the cold war it was widely agreed, although not much debated, that it was wrong and dangerous to leave the field of international political warfare to Stalinist communists.
Thus we were drawn, in a measure, into fighting fire with fire, and it is not surprising, in retrospect, that as the dangers of the cold war seemed to recede, the national consensus in favor of resisting Stalinism was modified by a growing concern for building bridges and strengthening the prospect of peaceful coexistence. The underlying balance of opinion shifted, and the practice of secret support for democratic but anti-communist intellectuals and others was exposed and discontinued. I do not believe secret activity of this kind is now in tune with national sentiment and I therefore believe it should not exist.
A special and more occasional kind of covert activity was the sort which reached its highest success in the early missions of the U-2 and its low point of failure at the Bay of Pigs. These were operations whose basic justification, once again, lay in the assumption of an adversary relationship close to a condition of war. The U-2 was able to provide the Eisenhower Administration with extraordinarily important intelligence information with respect to the balance of strategic forces. The support for the Cuban brigade was conceived as an appropriate element in the American commitment to resist the extension of totalitarian communism in the Western Hemisphere. In each case the decision for secrecy was essentially derivative from the basic decision to authorize the operations at all – the first an overflight in obvious violation of international law as generally understood, the second a heavy engagement in the planning, support, and guidance of an exile group intent on the forcible overthrow of a government with which we were formally at peace.
Covert operations on the scale of the U-2 and the Bay of Pigs have not been repeated, so far as I know, except in the context of the war in Southeast Asia. My own belief is that such operations, since they involve a conscious decision to engage in acts regarded as hostile under international law, should be governed by the Congress through its share of the war power rather than through the regulation of secrecy as such.
A fourth class of real secrets relates to the covert collection of intelligence. The most glamorous but not the most important of these activities are those of agents operating secretly against targets in foreign countries. A much larger and more expensive class of secret intelligence relates to the use of advanced methods of interception and analysis to learn about foreign countries from their electronic transmissions of all sorts. Still another class of important information comes from the use of space vehicles. This effort is now very large, in economic terms perhaps too large. It may be right to restrict it, but it would be wrong to end it, and I believe it is both necessary and desirable that most of what is done here should be done under strict secrecy. If others know exactly what we learn and how, whether by agents, by electronics, or by space intelligence, they are presented with an almost automatic opportunity to cut off or limit our access to that kind of information.
The fifth class of secret information available inside the Government, and legitimately denied to those outside, falls in the class of material whose capacity for international embarrassment outweighs its value for enlightenment. Let me offer a simple but illuminating example: In my time the State Department's briefing papers for visits from foreign dignitaries characteristically included reasonably candid descriptions of the great man, his principal associates, and sometimes their spouses, together with comments on both public and private lives. While occasionally one might question the necessity for some of this information, the line between the relevant analysis of character and the frivolous dissemination of gossip is as hard to draw in diplomacy as it is anywhere else, and experienced political leaders usually put a high premium on extensive and accurate advance information on important persons with whom they are about to conduct business. Yet it is obvious that the conduct of American diplomacy – whether by the President or by the State Department – would not be assisted if all such candid assessments were unclassified. And this is only a particularly striking and clear-cut example of the general requirement for protection of a great mass of diplomatic communication which is more sensitive because it is written to and from American officials than because of its specific content.
The sixth and final class of legitimate secrets relates to the process by which a President makes a decision. The President has an unchallengeable right to keep this process private – though he is not necessarily wise to do so. There is no way in the world that the Congress can write a law that will prevent a President from making his decisions in extreme secrecy if that is what he wants to do. Of course sooner or later a decision that has consequences will be revealed by those consequences – President Kennedy's private decision on the Cuban Missile Crisis was
promptly revealed by both speeches and events, and President Nixon's decision to bomb Cambodia in 1969 was revealed within weeks by the New York Times – though no one paid much attention. Usually, though not always, the time span between a major Presidential decision and its public appearance is short.
But if the President wants to keep his own process of choice private, he has the means to do so, and the only consequence of a legislative effort to enforce a wider formal process is that when the President feels like it he will use some other process. This has been the fate of the National Security Council at critical moments ever since its inception, and especially in the last ten years under two naturally secretive Presidents. The nation desperately needs an open Presidency, but the only way we can get, it is for the President himself to want it that way. We should not be misled by the fact that it has been possible to force extraordinary revelations in the Watergate case by obtaining tapes and their transcripts. It seems to me an obvious and desirable consequence of the devastating self-inflicted wound of these tapes that it will be a long time before any occupant of the White House will make a habit of taping himself again. Another consequence, more pertinent to your current deliberations, is that if you require the President to list classified documents relating to his current decision-making, he will find a way to respond which does not tell you what he may be going to do – and I believe he will be within his basic constitutional rights if he does so. In previous hearings before your Committee the right of the President to receive confidential counsel has been repeatedly recognized by such distinguished and determined opponents of unnecessary secrecy as Senator Ervin and Congressman Moorhead. I think it may be important not to frame any statutory systems of classified information in such a way that a President may be driven to conduct his own most important business outside the system.
But outside this area of his right to design his own decision-making process, and the closely related right of privacy in negotiation, I see no need to accord the President any special primacy with respect to access to or control over secret information. It is entirely true that he has a necessarily primary role in foreign affairs and in defense, but it does not follow at all that he should have an unfettered right to decide what is and is not secret. It is no accident that the greatest of our war Presidents was also the most open. Abraham Lincoln insisted on making his own decisions in his own way, and he consulted as many or as few as he pleased. But in the main he got along without other secrets. Moreover my own belief, which I have developed at length elsewhere, is that secretiveness is the enemy of real strength in the Presidency.
The listing of these six categories of materials that can have a legitimate claim on secrecy may give the impression that all this information really does constitute a mass of material such that without it neither Congress nor the public can play its part in our democratic process. Yet I repeat that most of this material is unnecessary to the reaching of reasonable judgments on international affairs, and I would emphasize that insofar as these legitimate secrets do relate to matters where Congress and the public have a democratic need to know, there are plenty of ways and means available to Congress for the production of the relevant information. Let me take these six classes one by one and suggest how they can be handled without serious compromise of necessary secrecy or undue damage to the democratic process.
Let me begin with covert operations. As I have said, I think the basic Congressional power to control large-scale actions of this sort should be exercised through the War Powers Resolution – which may perhaps need amendment to ensure that it does cover such activities. Other covert intelligence activities need some supervision, and excesses will need to be crushed from time to time, but this I believe is necessarily the task for a very small, trusted, and discreet group of legislators.
Let me turn next to military matters – again keeping short of open conflict, which is covered by the War Powers Resolution. I have said that no one needs to know the details of weapons design or of contingency war plans in order to have an informed opinion on the great issues of the strategic arms race. That is true, but it is true only if there is not a governmental monopoly of knowledge within our society, about the basic character of such weapons and plans. We do not need to know how to make a Poseidon warhead, or even what its exact explosive power may be. We do need to know its approximate capabilities, and we need to know in general terms what role our submarine missiles play in our strategic deterrent. We also need ways of knowing, at approximately the same level of sophistication, what other nuclear powers have and do not have, although we do not need to know exactly how that information is obtained.
I submit that there is no necessary obstacle to our having this kind of information or to our having confidence that we have it. Indeed I believe that many interested private citizens have it today, even though they never see a classified document. The habit of public discussion which was especially fostered by Robert McNamara in the early 1960s did not lapse entirely after his departure, and it has lately been revived in a serious and refreshing way by Secretary Schlesinger.
Moreover even without these special and highly commendable efforts there would be generally adequate opportunity for public understanding because of several fortunate facts. Strategic weapons are subject to open authorization and appropriations. Basic estimates of Soviet and other positions are made and reviewed in more than one part of the Executive Branch and shared with Senators and Congressmen of widely differing views. Highly competent and well-informed private bodies, like the International Institute of Strategic Studies in London, address both the facts and the issues of the subject in a sustained and serious way which is an important safeguard against undetected deception by the Executive.
Yet it would be wrong to conclude that the present situation in this field is as good as it should be. Two things are wrong with it – both of them pertinent to your inquiry. First, there can be no doubt that the general public still does regard nuclear weapons as something apart, so that it wants to trust the President and the Defense Department to deal with them. Although the material relevant to major decision-making is usually accessible to diligent outsiders, there is a clear imbalance of persuasiveness in favor of any President and any Pentagon which derives precisely from the fact that in this most dangerous and difficult subject it is much more restful to trust the duly constituted authorities than to examine the complex issues for oneself. Thus in the energetic debate on the ABM, in the first Nixon Administration, there was a heavy imbalance on the side of the Administration, and its assertions about the capabilities of ABM systems, whether our own or others, were given a weight well beyond their technical validity.
I think there are two good answers to difficulties of this kind. Both of them apply to most of the six kinds of secrets I have described. The first is that the Congress, through its Armed Services Committees, has the right, the power, and the duty to inform itself just as fully as its own sense of need suggests, on the basic capabilities and relevance of any and every weapons system, in being or in contemplation. The classification system will not stand up against the powers of the Committees if those powers are resolutely employed. And the kind of information that is needed, though much of it is currently stamped in fancy ways, has very little if anything to do with the few real secrets that not even the Armed Services Committee needs or wants to know.
Thus one sovereign remedy for the imbalance of "we know best" is to use the powers of the Congress to insist that "we know too." When the business at hand is military, that means pressure from the Committees on which the military depends, and it also means the development of a well-informed staff with all the necessary access to arcane data – a staff like those which now serve the Joint Committee on Atomic Energy and the Joint Committee on Internal Revenue Taxation.
This remedy which the Armed Services Committees have against the Pentagon is one which other Committees and Subcommittees have against other Departments. The weakest performance in this respect, in recent years, has been that of the Senate Foreign Relations Committee. This weakness has not been all its own fault; the Executive Branch, especially in the first Nixon Administration, wanted very little legislation of importance from the Committee, and the Committee's bargaining power was diminished accordingly. But we now face a period in which the Executive Branch, unless it is to accept a position of permanent impotence n fields as big as foreign economic policy, will need lots of action from this and other Committees. They can and should insist on getting full information in return. Moreover it takes knowledge to extract knowledge, and too often the Committees and Subcommittees have not known what questions to ask. But these are difficulties which can be remedied by appointing – and clearing – qualified staffs, as some of the bills before you suggest.
There is always danger, of course, that a Committee or Subcommittee may become the uncritical ally of the very agency it is supposed to be watching. I know no sovereign remedy against this danger. In the nature of things there will be times when what one man calls "cooperative statesmanship" another will call "supine surrender." Moreover excessive tilts in the balance of power have not always favored the Executive – Congressional powers too can be abused.
To help guard against the danger of weakness or co-option in a specific Committee, I believe the best course for the Congress would be to follow the path charted by former Senator John Cooper and enlist in its own service the capabilities of the Central Intelligence Agency. I think the Congress, through a considerable number of Committees, and on demand from any significant minority, should have the same power to commission intelligence estimates as the President and his subordinates. I do not think the best way to get this information is simply for the Congress to share in the intelligence estimates now prepared for the Executive Branch. These estimates – especially when they are not routine – often relate to the legitimate private internal decision making process of the Executive Branch. Thus, for example, it would be quite natural for a President preparing for a visit to Moscow to ask the CIA for its assessment of Soviet reactions to a number of possible American proposals or complaints. To put its answers in the hands of Congressmen would be to risk compromise of the President's diplomacy, and a President faced with that prospect would probably ask his questions orally – or even not ask them at all.
But this danger disappears, or is at least greatly reduced, when the questions asked are questions from Congressmen themselves. Responses to such questions need not embarrass the Executive Branch in any unacceptable way. The CIA has a well deserved and scrupulously defended reputation for integrity in its assessments and care in its use of uncertain data. It also has plenty of experience in presenting its assessments in ways that do not compromise either its sources of information of the policy options of the Executive Branch.
There would be important substantive value in such CIA-supplied estimates and assessments in a wide variety of subjects – military, political, economic, and even cultural. The information will not be infallible, and as I have suggested it will not always startle the Congressman whose staff has had time to study the "open sources" with care. But in a few critical matters like strategic strength the American intelligence community is the world's leading primary source of data, and in many other fields it competes with the best available elsewhere. The Congress as a whole would be greatly reinforced by easy access to this major source of responsible and wide-ranging information on the rest of the world.
But the greatest advantage of access to this information is that it could provide a powerful and often a decisive answer to the simple appeal to authority. Under this proposal the CIA will not be giving the Congress exactly the same documents it gives the President or the Secretary of State, but it will not be giving either party assessments that are inconsistent with what it gives the other.
Even aside from the risk of discovery, the Agency's estimative process simply does not work that way, and the pride of its estimators would not permit such contradictions. Thus as long as the appropriate Committees and Subcommittees have the wit to ask the relevant questions, they have it in their power to destroy forever the hobgoblin of an Executive monopoly on inside information about the rest of the world.
This prospect for an expanded role for the CIA leads me to address directly one of the questions in your letter of invitation, and to say that I believe the standards for secrecy derived from World War II and the cold war do not remain applicable today. In those periods the presumption of military and intelligence officers was in favor of limiting all kinds of information to those with a "need to know," and the term was usually defined in terms of rank or function within the Executive Branch. The CIA was never as rigid as the Pentagon, and it has always had a healthy interest in enlarging its readership. Still it has had a natural tendency to think of the President as its first reader and the cold war as its first subject. We are now entering a period in which the Presidency must in its own interest open out to other offices and to the Congress, and if the cold war is not really over, it is certainly no longer the central and defining element of world politics.
Therefore anything which tends to widen both the range of attention and the readership of the government's best information agency is desirable. Opening the CIA to the Congress should do both.
Indeed my personal view is that all these matters would come into better focus if the name – though not the initials – of the CIA were changed to Central Information Agency. For its real business is information, and intelligence is only part of that. As its covert activities properly contract, and as the problems on which the American Government needs good world-wide information increase, I think the CIA has an extraordinary opportunity to transmute itself – with help from the Congress – into a great national informational resource.
The kind of access to the CIA which I am recommending would provide an effective answer to our interest in minimizing the costs to informed debate of two other kinds of legitimate secrets – those obtained by covert intelligence, and those which are best kept private because they represent the unvarnished views of our own officials of foreigners who speak to our government in confidence. In my experience the CIA has traditionally had ready access both to covert intelligence and to all but the most sensitive diplomatic traffic. It has learned how to incorporate information from such sources into analyses which do not themselves require heavy protection. A process of regular communication between the Congress and the CIA with respect to questions raised by Senators and Representatives would give powerful incentives for the further development of this skill. The ordinary report would not refer directly to sensitive intelligence or to dangerously candid cables, but the reader would know that the report had been prepared by an institution with access to both kinds of information.
It is obvious that these proposals rest upon confidence in the capability and skill of the analytical processes of the CIA. It is also obvious that these processes could be gravely weakened if other parts of the Executive Branch were to engage in a systematic withholding of important information out of mistrust of the CIA itself. There have been distressing reports that just this kind of mistrust may have been at work in recent years. Therefore, it would be critical to the success of this proposal that Congress should employ its own political power to protect the access of CIA analysts to relevant information gathered by other agencies. Presidents and Secretaries of State who are engaged in sensitive diplomatic negotiations may well insist, at least for brief periods of time, that their diplomatic conversations not be shared with their intelligence analysts. But these exceptions should be few in number and limited in time if the common interest in accurate analysis is to be served. In my own experience, it nearly always proved possible to protect the privacy of particularly sensitive diplomatic exchanges by sharing them with selected senior intelligence officers who then assumed the responsibility of insuring that their implications were absorbed into the estimating process as a whole.
The role I am suggesting for the CIA, in short, is one of serving as a membrane through which things which are properly secret can be honestly reflected in analyses which are not. In this sense the Agency can become a means by which the ordinary dangers of the classification system are reversed. Ordinarily the existence of a single piece of top secret information can impose this classification on every document in which it is mentioned, thus creating a chain reaction in which cautious officials spread the classification epidemically to every new document with any relation to the old one. But a systematic process of informing the Congress could have the reverse effect: officials with an interest in maximizing the flow of information could and would find ways of transmuting what is important about legitimately secret information into a form which is not dangerous. I know from my own experience that this process is entirely practicable in the vast majority of cases. What has been lacking in the intelligence community is the incentive to apply it. This incentive the Congress has in its power to supply.
This general process, moreover, can and should be applied by others in the Executive Branch from the President on down. It is in the President's own interest not only to maximize the flow of information to the public, but also to make full use of his own unequaled powers of drawing attention to that information. It is not an accident that there has been little concern about excessive secrecy when the Presidency itself has been open – as it was in most Administrations before 1964. And what is true of the President is also true of the effective Cabinet Officer. Our most successful Cabinet Officers have invariably recognized – in principle if not always in practice – that a critically important part of their responsibility is to hold themselves accountable and responsive to Congressional inquiry. It is worth remembering that in June of 1951 Secretary Acheson spent almost eight solid days before a joint Senate Committee investigating the relief of MacArthur.
My conviction, in summary, is that legitimate secrets, while important, are relatively few; that where they relate to the exercise of the war power, the role of the Congress can be best played through its share of that power; that Congressional Committees should be aggressive in resisting blanket claims of secrecy, and should equip themselves, mainly through their staffs, to share in all the secrets they need to know; that the Congress as a whole should establish its own procedures for sustained and systematic use of the estimating capabilities of the Central Intelligence Agency; that a President is entitled to privacy in his decision-making and his diplomatic negotiations but that in general the long-run power and effectiveness of a President are undermined by secretiveness; and that in any case, and even without the changes I have suggested, it is childish to assume that the Executive Branch "knows best" merely because of its preferred access to classified information.
You have not asked me in these comments for a detailed assessment of the legislation now before you. My summary view is that while its purposes are excellent, its particular provisions deserve careful review to guard against the danger that they may produce unintended results. On balance my own judgment is that the vast mass of currently classified documents deserves more to be ignored than codified, and that affirmative measures for encouraging the flow of information are probably more likely to help us than formal indices of classified documents or even review committees of Congressional leaders. I do not think that the key to effective democratic process lies in the pursuit of particular existing documents so much as in the creation of a set of procedures within which the power of the Congress is used to encourage all those forces inside the Executive Branch which themselves stand to gain from openness – from the President himself on down.
STATEMENT BY ARTHUR SCHLESINGER, JR.
MAY 23, 1974.
I am happy to have the opportunity to discuss with this Subcommittee the difficult questions bound up in the theory and practice of executive secrecy. My professional concerns as an historian and my government service as an intelligence officer during the Second World War and as Special Assistant to President Kennedy twenty years after have exposed me to both sides of this inordinately complicated problem.
You are concentrating this week, I take it, on the classification practices employed by the executive branch in the name of protecting the national security. I have no doubt that secrecy has an essential role in the operations of government. In a number of areas related to foreign policy and the national defense the executive branch has a reasonable case for withholding things – for a time, at least – from the public and even, on occasion, from Congress. Let me offer a quick list:
Information relating to ongoing diplomatic negotiation; to intelligence collection; to military plans, movements and weaponry; and information that might compromise foreign governments or American friends or agents in foreign lands.
Through our history the responsibility for keeping such matters secret was freely conceded to the executive branch. And through most of that history the executive met that responsibility in a reasonable way. It avoided any major disasters through the breach of security and at the same time avoided the creation of an elaborate security system in which secrecy became an end in itself. It kept a rough balance, in your chairman's words, "between a society that is open and one that is dangerously exposed." Had the executive preserved this rough balance in our own time there would have been no need for these hearings. But the construction after the Second World War of a massive system of official secrecy has tempted the executive branch to abuse the power so long and freely conceded to it and has resulted in the denial to Congress and the people of much information that should not have been kept secret.
It is important to remember that this elaborate secrecy system of our own day is relatively new. It is not an American tradition. President Polk's observation in a message to Congress in 1846 – "I am fully aware of the strong and correct public feeling which exists throughout the country against secrecy of any kind in the administration of government" – expresses our historic attitude.
The secrecy system is an aberration of the last thirty years. The republic got along pretty well for most of its history without a religion of secrecy. No doubt the methods used in those more relaxed times seem casual and haphazard by the uptight standards of our own day. But perhaps this apparent casualness was a recognition of the fact that secrecy is only one of the objectives a government must pursue and that the exaltation of secrecy over other objectives may harm the very national security the secrecy system is alleged to protect.
The time when the claims of executive secrecy are most compelling is obviously when the life of the nation itself is at stake. It may be of interest to this Subcommittee to recall what our government did about secrecy during the crises of our history that most gravely threatened the survival of our nation. Our greatest national emergency was unquestionably the Civil War. Not only was the very existence of the nation challenged more desperately than even before or since, but the challenge took the form of domestic rebellion, of a "brothers' war," and therefore exposed the government more urgently than even before or since to the menace of penetration and subversion. In no national emergency has our government even been so vulnerable to espionage and sabotage.
Yet, as one examines the history of the Civil War, the striking thing is that it was fought without an elaborate secrecy system. Lincoln's government, it is true, suspended habeas corpus, intercepted the mail, suppressed newspapers and so on. There was wide concern about Copperheads and spies. But there was no Sedition Act, no Espionage Act, no apparatus of official secrecy, not even a formal system of security classification. I have never heard anyone claim that the Union lost a battle because of the laxness of the provisions for security.
The next greatest crisis in our history was the Second World War. By this time we had passed an Espionage Act (1917) and had finally set up – though not until 1921 – a peacetime system of security classification. Concern over security was great, and the expansion of the secrecy system made it greater. But there were still limits to what Presidents were prepared to do, or thought themselves empowered to do, in the name of national security. At the most dangerous moments of the war, it never occurred to Franklin Roosevelt, any more than it had occurred to Abraham Lincoln eighty years before, that he had the right to create a secret White House posse and authorize it to break the laws and the Constitution. Nor is there any reason to suppose that violations of secrecy caused major disasters. The most spectacular case – when the Chicago Tribune published the Japanese naval disposition at the time of the Battle of Midway, thereby showing we had deciphered the Japanese code – might well have damaged the naval effort in the Pacific. But, as we know now, the Japanese turned out not to be faithful readers of the Tribune and missed the story.
The paradox is that at no time since 1945 has the republic been in a state of clear and present danger comparable to the Civil War or to the Second World War; yet in this recent period what began as a legitimate concern for security has grown into a towering and devouring obsession with secrecy. I do not deny the reality nor underestimate the threat of the Cold War. But it is absurd to suggest that the life of the nation has been at stake in the last thirty years in the same direct and immediate sense that it was at stake in 1861-65 or 1941-45. Nonetheless, the last thirty years have seen an executive hunger for secrecy far exceeding anything in the days when the nation was fighting for its very life. Instead of one of a number of objectives of a free state under stress, secrecy has come almost to be the supreme end to which all else must be subordinated.
The notion has spread about, moreover, that keeping things secret is an inherent, absolute and exclusive presidential right and that presidential decisions in this area are final, beyond review or appeal. We have established a cult of secrecy that, like other cults, has come in time to demand human sacrifice.
It is this development, of course, that explains and justifies the inquiry by this Subcommittee. Secrecy, as I have said, has its role in the operations of government; but unreasonable secrecy exacts too high a price and in the end endangers the national security it is supposed to preserve.
Getting the secrecy system under control has become a national necessity. It would be nice to think that the executive branch could do this itself. But for a generation it has proved itself incapable of doing so. Some Presidents – like President Kennedy – have tried to restrain the secrecy orgy. But they did not try hard enough to overcome the resistance of the national security bureaucracy. For that bureaucracy has a vested interest in secrecy, and bureaucratic momentum, especially in connection with a question so swathed in patriotic emotion, is hard to rein in. The instinct of bureaucracy, as the great German sociologist Max Weber pointed out long ago, is "to increase the superiority of the professionally informed by keeping their knowledge and intentions secret." Because the secrecy system is controlled by those on whom it bestows prestige and protection, it has long since overridden its legitimate objectives. In certain areas it remains an indisputable necessity. But in our own time the religion of secrecy, as practiced in the executive branch, has become an all-purpose means by which the American Presidency dissembles its purposes, buries its mistakes, manipulates its citizens and maximizes its power.
The idea that keeping things secret is an absolute and exclusive presidential prerogative is neither morally nor constitutionally defensible. Justice Potter Stewart stated the principle in his opinion in the Pentagon Papers case. "Secrecy can best be preserved," he said, "only when credibility is truly maintained." This proposition arms the executive government's right to protect secrecy essential to the discharge of continuing responsibilities in international relations and national defense. It also implies that such control of information is not an unconditional right of Presidents. In exchange for the power to preserve secrecy, the executive branch must accept the obligation to maintain credibility. This tacit contract imposes on the executive branch the negative obligation to make sure that only information demonstrably vital to national security is withheld. It also imposes the affirmative obligation to speak truth to the people and supply Congress the information necessary to informed and responsible debate.
The Stewart principle of a balance between secrecy and credibility accurately reflects our historical practice. When the executive government has maintained credibility, when it has provided Congress and the people with information necessary to wise decision, when, in short, the nation trusts the President, Congress and the people have broadly acquiesced in an executive desire to keep certain things secret. But when executive claims to secrecy seem unreasonable, when the executive government appears to have violated its part of the implied contract and withheld information that should be disclosed, a corrective process has been set in motion in order to restore the balance.
This began as early as the Presidency of George Washington. Its characteristic form is collaboration between disgusted public officials, sometimes elected, sometimes appointed, and the press. Thus in 1795 Washington laid before the Senate in secret session the text of a treaty John Jay had just negotiated with Great Britain. Senator Stevens Thomson Mason of Virginia thought that the people had a right to know about the terms of the treaty and sent a copy to the Philadelphia Aurora, which promptly published it. Senator Benjamin Tappan of Ohio did the same thing when President Tyler tried to push a treaty annexing Texas through the Senate in secret session in 1844, sending the text to the New York Evening Post; in this case, publicity led to the treaty's defeat. In 1848, when the Senate was debating in secret the Treaty of Guadalupe Hidalgo, ending the war with Mexico, the New York Herald published the text; to this day no one knows who in the Senate or the State Department passed it along.
I mention these instances to show that the Pentagon Papers had plenty of precedents. Indeed, the disclosure of the Pentagon Papers, a set of documents of exclusively historical interest, obviously was of far less consequence than the disclosure of the text of treaties still to be ratified. But the Presidents in those earlier cases did not fly into a panic and instruct subordinates to trample on the laws and the Constitution in order to stop the leaks. Nor did any harm result to national security, any more than any harm has resulted from the disclosure of the Pentagon Papers. All these actions were simply exemplification of the Stewart principle: patriotic men, confronted by what they deem the gross abuse of executive secrecy, may very well decide to go public. Any one making this decision does so, it need not be said, at his own risk. If the nation decides he has behaved irresponsibly, he must pay a penalty. But this has been historically the rough-and-ready way by which we have tried to combat the excesses of official secrecy and reestablish the balance between closed and open government.
Yet this form of the corrective process is manifestly risky, messy and unpredictable. Nor is it well designed to cope with the bureaucratic monster that has grown up in the last thirty years. Surely there must be some less nerve-wracking way of controlling the secrecy system, restoring the balance between secrecy and disclosure and getting the American democracy back into working equilibrium. The way to do this, it seems to me, given the by now ample and irrefutable demonstration that the Presidency cannot be trusted to run a rational secrecy system, is for Congress to establish the criteria for and control of such a system by statute.
There can be no constitutional question of the power of Congress so to act. Former Chief Justice Warren said on December 13 last, "Whatever secrecy is to be permitted concerning governmental records in the highest as well as in the lower echelons should be fixed by law." Former Justice Goldberg told the House Government Information Subcommittee in 1972, "I have no doubts that Congress is authorized to enact such legislation," and Justice White made the same point in the Mink decision. Indeed, Congress did exactly this when it passed the Atomic Energy Act and established a statutory classification system for the Atomic Energy Commission.
Such congressional intervention is not only legally permissible, but it would obviously establish the foreign policy of the executive government on a firmer and stronger basis. The presidential effort to monopolize the foreign policy of the United States is self-defeating even from the President's own viewpoint. As the most experienced and sagacious American diplomat of this century, Averell Harriman, told the Senate Separation of Powers Subcommittee three years ago, "No foreign policy will stick unless the American people are behind it. And unless Congress understands it the American people aren't going to understand it." This is true for foreign policy in general; It is truest of all when foreign policy involves the risk of war. For the war-making authority not only rests on express and complex interdependence of constitutional powers but requires for its exercise the widest and deepest basis of popular consent.
It must be observed in addition that, when the Presidency seeks to make foreign policy behind closed doors, it deprives itself of the benefit that divergent perspectives and candid debate may bring to the formulation of policy. I don't mean to imply that Congress is always wiser than the President – no one who remembers the congressional record in foreign affairs in the 1930s could claim that – but I have no question that policy is improved most of the time when the policy makers have to defend their ideas against outsiders. As Senator Mathias has well said, "The more a President sits surrounded only by his own views and those of his personal advisers, the more he lives in a house of mirrors in which all views and ideas tend to reflect and reinforce his own."
Presidents may find it inconvenient and irritating to share responsibility and information with Congress. But in the long run it is good for them as well as for Congress and the people.
I must add in all frankness that the position of Congress in making a fuss about secrecy would be stronger if the Senate and the House were to take steps to clean out the pockets of unnecessary secrecy remaining in their own operations. In this connection I want to congratulate the Senate Foreign Relations Committee for the initiative it has taken in publishing the series of executive session transcripts relating to basic foreign policy decisions in the years 1947-1950. This series is of immense value to historians and, if continued and brought closer to our own time, could be of immense value to all citizens concerned with the evolution and design of our foreign policy.
I understand that there is presently under consideration in the Office of the Secretary of the Senate a proposal for the establishment of a Senate Historical Office. Such an office would be charged with the responsibility of reviewing material now locked up in transcripts of committee hearings held in executive session. It could then recommend to the Senate the immediate publication of the more important hearings, the transfer of less important hearings to the National Archives where they could be consulted by scholars and, in the few cases where this might be necessary, the closure of genuinely sensitive material for another few years. The creation of such an office would be of benefit, I am sure, not only to historians and concerned citizens but to the Senate itself. One reason why scholars write of public policy so much in terms of the executive branch is that the executive branch, for all its defects in this area, still, on the whole, opens up its confidential papers before the Senate does. I have no doubt that a Senate Historical Office, properly mandated and staffed, would contribute significantly to better public understanding of the role of the Senate in our national policy. It would, in addition, place the Senate in a much stronger position when it complains about executive secrecy. I am not sure of the exact status of this proposal, but I commend it warmly to your sympathetic consideration.
The question remains as to the form congressional intervention into the problem of executive secrecy might best take. I have examined the ideas embodied in S. $393, S. 1520, S. 2451, S. 1726 and H.R. 12004. The matter is difficult, and I am frank to say that I do not see any foolproof mechanical solution. It may be that some of the procedures prescribed in the bills would help. But I would raise questions about their efficacy. A Registrar of National Defense and Foreign Policy Information located in the White House is not likely to defy a President who has a mania about secrecy. A Joint Committee on Government Secrecy is all too likely to become an instrument rather than a critic of executive secrecy. We know all too well the sweetheart relationships that so often grow up between the executive and a privileged group in the Congress: I can easily see such a body reinforcing rather than restraining the Presidency in this field. It was not too long ago, indeed, when members of Congress were condemning the Presidency every week for not keeping things secret enough. A newspaper publishing a document pronounced sacrosanct by the Joint Committee as well as by the executive might well be running greater risks before the courts, for example, than if it published a document classified only by the executive. A truly independent Classification Review Commission, as proposed in the bill introduced by Congressman Moorhead in December, might serve as a more reliable check on the executive penchant for secrecy; but, if such a Commission fell under presidential domination, it could add one more sanction to the secrecy system.
I may well be wrong in my doubts about the the proposed structural reforms, and I am open to persuasion. My own present idea of a classification statute would be along the following lines:
A preamble stating the purpose of reducing the amount of classified material to the absolute minimum necessary to protect the national defense and foreign policy of the United States and affirming that the government's authority to keep things secret must be balanced against the people's interest in the democratic control of foreign policy;
Careful definitions of the type of information qualifying for classification: Information relating to active national defense, to active diplomatic negotiations and plans, to intelligence collection and to active relations with foreign states;
Affirmative obligations laid on the executive to disclose certain types of information, especially regarding the commitment of American troops to combat and any promises to foreign states or groups likely to result in such commitment, with penalties in case of violation;
Penalties for the use of the secrecy system to conceal incompetence, inefficiency, corruption or wrongdoing;
An express restriction of the Espionage Act to espionage – the clandestine delivery of state secrets to foreign nations – and the prohibition of its application if classified information is divulged to the American people;
The declassification of all documents over ten years old, with some form of appellate procedure so that the executive branch, if it could give good reasons for holding back specific documents or categories, could make a case to a review board;
Provision for judicial review of classification decisions, including clear assignment to the courts of the authority to go behind the stamp and, after in camera inspection, decide on the reasonableness of the classification.
While I think that a statute along these lines might clarify congressional intentions and provide a basis for action in cases when the secrecy system is abused, I do not pretend that it reaches the heart of the problem. The heart of the problem, in my judgment, is beyond statutory or structural solution. It lies in the domain of politics and education. Presidents obsessed with secrecy will be able to pervert or evade almost any restrictions or machinery. If we wish to have open government, we must elect Presidents who genuinely believe in open government, and we must elect members of Congress who will support them in that belief and not go on, as members of Congress have gone on for so many years, about security risks in the executive branch. And we must have a public opinion sufficiently enlightened and realistic to understand that, while secrecy does have a role in the operations of government, when, like Aaron's serpent, it swallows up the executive obligation to consult with Congress and the people in the formulation of policy, it can grievously damage the system of comity and accountability upon which our freedom depends.