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Administrative Secrecy: A Congressional Dilemma

Published online by Cambridge University Press:  01 August 2014

Francis E. Rourke
Francis E. Rourke*
Affiliation:
The Johns Hopkins University
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Extract

Attacks upon administrative secrecy are a commonplace of congressional politics. By resolution, investigation, and the threat of even more punitive sanctions, Congress has repeatedly asserted its belief that executive officials should not be allowed to withhold documents and testimony at their own discretion. The most graphic recent evidence of this legislative concern has been provided by a House Special Subcommittee on Government Information. Over the past three years, this group, headed by Representative Moss of California, has made far-ranging efforts to expose and dramatize the evils of executive secrecy.

The long-standing congressional resentment against administrative efforts to conceal information has very visible roots in considerations of institutional self-interest, since the performance of legislative functions in central areas of policy-making and administrative oversight demands frequent access to facts that only executive officials can supply. In the field of defense policy, especially, congressional dependence upon executive information is acute, and bitter controversy has been sparked by executive refusals to release data bearing on such matters as the missile program, foreign-aid expenditures, and differences within the high command over the best way to spend the defense dollar.

Type
Research Article
Information
American Political Science Review , Volume 54 , Issue 3 , September 1960 , pp. 684 - 694
Copyright
Copyright © American Political Science Association 1960

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References

1 For a description of some of the principal episodes in this conflict see Binkley, Wilfred, The President and Congress (New York, 1947).Google Scholar A recent tabulation of controversies in this area from the time of Washington to the present day may be found in The Power of the President to With hold Information from the Congress, Memorandums of the Attorney General, Compiled by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 2d Sess., Feb. 6 and Oct. 31, 1958.

2 The House Subcommittee has held hearings periodically since November 7, 1955, and has issued interim reports since that time. The work of the Committee up to July, 1958, is summarized in two progress reports, Twenty-Fifth Intermediate Report of the Committee on Government Operations, 84th Cong., 2d. sess., H. Rept. No. 2947, July 27, 1956; and Thirty-Fifth Report by the Committee on Government Operations, 85th Cong., 2d. sess., H. Rept. No. 2578, Aug. 13, 1958.

3 Under the chairmanship of Senator Thomas Hennings of Missouri, the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary has also carried on investigations in this area.

4 Many of the principal issues that have arisen over defense policy are discussed in an interim report by the Moss subcommittee. Twenty-Seventh Report by the Committee on Government Operations, 85th Cong., 2d Sess., H. Rept. No. 1884, June 16, 1958.

5 As the AEC itself was subsequently to admit when it held the contract invalid on the grounds of Wenzell's conflicting private interest. As the agency put it: “The matters on which Wenzell was advising the contractor (Dixon) were the same on which he had been employed to advise the government.” However, in a decision reimbursing Dixon-Yates for out-of-pocket costs before the contract was cancelled, the Court of Claims ruled that Wenzell's actions did not represent a genuine conflict of interest. Mississippi Valley Generating Co. v. U. S., 175 F. Supp. 505 (1959).

6 For a summary of the Dixon-Yates dispute, see the Congressional Quarterly Almanac, Vol. 11 (1955), pp. 533–538.

7 See New York Times, June 20, 1959, p. 8.

8 See the memorandum from Attorney General Brownell to President Eisenhower, as printed in Replies from Federal Agencies lo Questionnaire Submitted by the Special Subcommittee on Government Information, 84th Cong., 1st sess., Nov. 1, 1955, pp. 546–552.

9 Thirty-Fifth Report by the Committee on Government Operations, 85th Cong., 2d Sess., H. Rept. No. 2578, Aug. 13, 1958, p. 243.

10 See New York Times, June 23 and July 12, 1957.

11 Twenty-Third Report by the Committee on Government Operations, 85th Cong. 2d Sess., H. Rept. No. 1619, April 22, 1958, p. 21.

12 See Hearings, House Subcommittee on Government Information, 84th Cong., 2d Sess., Mar. 7, 8, 9, 1956, p. 756.

13 See Replies from Federal Agencies to Questionnaire Submitted by the Special Subcommittee on Government Information, 84th Cong., 1st Sess., Nov. 1, 1955, pp. 7–10.

14 18 U.S.C. §1905.

15 The investigation was carried on under the direction of Senator Henry Jackson. See Leaks of CAB Decision of August 2, 1956 Affecting Northeast Airlines Stock, 85th Cong., 1st Sess., May 1–21, 1957.

16 The secrecy of crop reports is protected by 18 U.S.C. §1902.

17 The 1954 amendments to the act went some distance toward relaxing this control. See Marks, Herbert S. and Trowbridge, George F., “Control of Information under the Atomic Energy Act of 1954,” Bulletin of the Atomic Scientists, Vol. 11 (04, 1955), pp. 128–130.CrossRefGoogle Scholar

18 See United States Commission on Government Security, Report (Washington, GPO, 1957).

19 New York Times, July 1, 1957.

20 353 U. S. 657 (1957).

21 226 F. 2d. 540 (1955).

22 Particularly Gordon v. United States, 344 U. S. 414 (1953).

23 For summaries of lower court interpretations of the Jencks decision, see Establishing Procedures for the Production of Government Records in Criminal Cases in United States Courts, S. Rept. No. 569, July 1, 1957, pp. 5–8, and Establishing Procedures for the Production of Certain Government Records in Federal Criminal Cases, 85th Cong., 1st Sess., H. Rept. No. 700, July 5, 1957, pp. 9–11. See also the Congressional Record for August 26, 1957, Vol. 103, No. 155, pp. 14551–14554. (Citations here and hereafter are to the daily edition.)

24 For some representative congressional views, see the debates in the House on August 27, 1957, Congressional Record, Vol. 103, No. 156, pp. 14715–14732. A sampling of unfavorable newspaper editorials may be found in the Congressional Record of August 26, 1957, pp. A7039, 7044, 7049, 7053, 7056. In interpreting the Jencks opinion, most of these editorials take their cue from the Clark dissent.

25 Congressional Record, Vol. 103, No. 148, August 15, 1957, p. 13642. The Supreme Court subsequently ruled, in Rosenberg v. U. S., 79 S. Ct. 1231 (1959), that this legislation and not the Jencks decision now “governs the production of statements of government witnesses for a defendant's inspection at trial.” See also Palermo v. U. S. and Pittsburgh Plate Glass Co. v. U. S., 79 S. Ct. 1217 and 1237 (1959).

26 Administrative Procedure Act, 79th Cong. 2d Sess., S. Doc. No. 248, July 26, 1946, p. 198.

27 See Replies from Federal Agencies to Questionnaire Submitted by the Special Subcommittee on Government Information, 84th Cong., 1st Sess., Nov. 1, 1955. Proposals are now (June, 1960) pending before Congress to amend the APA so as to prevent its being used to justify seerecy.

28 Ibid., p. 197.

29 5 U.S.C.A. §22.

30 Cross, Harold L., in Hearings, House Subcommittee on Government Information, 84th Cong., 1st sess., 11 7, 1955, p. 12.Google Scholar Cross is a life-long foe of governmental secrecy and the author of the most comprehensive legal study of the subject, The People's Right to Know (New York, 1953).

31 See an article by the chief counsel of the Government Information Subcommittee, Mitchell, John J., “Government Secrecy in Theory and Practice: ‘Rules and Regulations’ As an Autonomous Screen,” Columbia Law Review, Vol. 58, (02, 1958), pp. 199–210.CrossRefGoogle Scholar

32 See Hearings, House Subcommittee on Government Information, 85th Cong., 1st sess., Feb. 6, 7, July 22, 1958.

33 New York Times, April 17, 1958, p. 17.

34 For a discussion of the role of publicity in traditional democratic doctrine, see Goldschmidt, Maure L., “Publicity, Privacy and Secrecy,” The Western Political Quarterly, Vol. 7 (09, 1954), pp. 401–416.CrossRefGoogle Scholar

35 As quoted, ibid., p. 405, fn. 15.

36 Eisenhower's press conference defense of his position is reported in the New York Times, Jan. 16, 1958, p. 14. See also the column by James Reston, Jan. 23, 1958, p. 10.

37 For a recent discussion of the presidential position on this point, see Bishop, Joseph W. Jr., “The Executive's Right of Privacy: An Unresolved Constitutional Question,” Yale Law Journal, Vol. 66 (02, 1957), pp. 477–491.CrossRefGoogle Scholar

38 The Eisenhower letter ia reproduced in the Twenty-Fifth Intermediate Report of the Committee on Government Operations, 84th Cong., 2d sess., H. Rept. No. 2947, July 27, 1956, pp. 64–65.

39 See Congressional Quarterly Weekly Report, Vol. 17 (Apr. 22, 1960), p. 670.

40 See, for example, the recent case involving a New York Herald Tribune columnist, Garland v. Torre, 259 F. 2d 545 (1958).

41 Rovere, Richard, “Letter from Washington,” The New Yorker (05 16, 1959), p. 96.Google Scholar

42 See, for example, Green, Harold P., “Atomic Energy Information Control,” Chicago Bar Record, Vol. 38 (11, 1956), pp. 55–62.Google Scholar

43 Twenty-Fifth Intermediate Report of the Committee on Government Operations, 84th Cong., 2d sess., H. Rept. No. 2947, July 27, 1956, p. 78.

44 Second Report by the Committee on Government Operations, 85th Cong., 1st sess., H. Rept. No. 157, Feb. 22, 1957, p. 43.