The Barricade of Secrecy

by HAROLD L. CROSS

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IN WIDESPREAD areas having nothing whatever to do with national security or any other public necessity, the people, the Congress, and the press are being denied information essential to the formation of public opinion, to the formulation of legislation, and to the functioning of their information media. Public officers and employees suppress information. They deny access to public records. They stamp “secret” and “confidential” on evidence of their action. They obscure the frontier between that part of the public business which they conceal because publication is not, as they say, “compatible with the public interest” and that part which they conceal because, in their view, cognizance is none of the public’s business. They open to those whom they favor files which they keep secret from those upon whom they frown. They exercise authority to decide which citizen-suppliant for their indulgence is “responsible” or which one is “directly or properly concerned” with the information he seeks or which one has an “interest” sufficient to set their grace in favorable motion.

Thus the right of the people to examine public characters and measures is being obstructed increasingly during an historic interlude in which the overwhelming majority of citizens have become more competent than ever before to understand and act intelligently upon the problems of their government, including its world role and their national security. The obstruction is broadened at the very moment when government has embarked on wider and wider responsibilities and activities.

Last winter the Special Subcommittee on Government Information of the House of Representatives held hearings on the suppression of information. Created by the House Committee on Government Operations, and consisting of John E. Moss (D. Cal.), Chairman, Dante B. Fascell (D. Fla.), and Clare E. Hoffman (R. Mich.), the Subcommittee was directed to scrutinize the trend in the availability of government information, study the information policies and practices of executive agencies and officials, disclose any unjustifiable suppressions or distortions, and recommend action. The Subcommittee staff had already taken a giant step forward by making available a questionnaire and a 552-page volume of the replies by sixty federal agencies on the subjects for investigation, plus their citations of the legal sanctions for the withholding of information.

Hearings were held at intervals, and many departments and agencies were heard, including the Departments of Justice and State. In May, 1956, a panel of non-government lawyers was interrogated. In statements presented, as well as in a staff report of the parent Committee, government assertions of expressed and “inherent” rights to secrecy on constitutional and statutory interpretations were sharply challenged. In March the Subcommittee heard some of the nation’s leading scientists and technical experts. They challenged official secrecy beyond military necessity as a threat to national survival rather than as a means of national security. This cloak of secrecy, they almost unanimously reported, has made free exchange of scientific thought difficult or, in some cases, impossible, has impeded basic research, and has delayed or prevented altogether the actual application of results of research. The Subcommittee was told that some leading universities, including Harvard, Syracuse, and Oregon, and Massachusetts Institute of Technology, had refused certain government research contracts because of the red tape of unnecessary security classification.

The Subcommittee was told too that secrecy seriously delayed the development of radar, and, as a consequence, it failed to prevent the Pearl Harbor attack — a tactical failure born of military ignorance imposed by secrecy. If the Japanese had known of the existence of radar, there is at least a reasonable doubt that they would have attempted a surprise. The establishment of our northern air defenses was delayed one and probably two years by a technological secrecy “so good” that even the Chairman of the Joint Chiefs of Staff did not learn until after his retirement that the main underlying technological problems had been solved more than two years earlier.

In its nine months of operation the Subcommittee found, Chairman Moss said, “ample justification for the complaints of newsmen and Congress that the Government has tried to clamp down on many types of legitimate information.”

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THE flooding tide of governmental secrecy and the rising demand for its abatement are not partisan political issues or problems for news-gatherers alone. To be sure, partisan politics may dictate officialdom’s discretion to reveal or to conceal, and they may dictate congressional reaction to concealment. But these are additional reasons, if any are needed, for restoration of a government by law to replace the control of public information by a “government” by men.

The trouble is not lack of devotion to the principle of the people’s right to know; government output abounds in lip service to this principle. Nor is there any lack of paper work; torrents of that are handed out. The jaws of secrecy are clenched against participation by the people in the basic processes of democracy: the management of government, the formulation of its policies, the executive and administrative action taken.

Specific examples of news suppression occur both nationally and locally in state and county branches. In February, 1956, at Charleston, West Virginia, Frederick D. Ehle, supervising General Services Administrator, barred press photographers from all federal buildings in the state, saying: “If you come to me for permission, sometimes I’ll let you take pictures and sometimes I won’t.” Questioned by the Charleston Daily Mail, he declared: “I own the building and I’ll say what goes on there.”Intervention by Chairman Moss and the staff of the House Subcommittee on Government Information cut this arrogance back to size.

The security case of Wolf Ladejinsky, first dismissed and later reinstated in government service, involved justice and newsworthiness. While being interviewed about it, on January 14, 1955, William G. Ludwick, Chief of the Foreign Service of the Department of Agriculture, was asked whether government business was not public business. He said, “It is not and you know it.”

Among the proper interests of citizens are the identity and activities of those who seek to spring convicted criminals from custody. In some states public hearings are required by law. Denying a newspaper request for inspection of the records of an application for parole, the Chairman of the United States Board of Parole pontificated that the “desired information [will be] supplied if, in our opinion, such information would be compatible with the welfare of society.” Later, the Attorney General, as a matter of grace and as such subject to withdrawal, ruled that such applications may be inspected by the press and “interested” citizens.

Taxation is a bruising burden. Its just and evenhanded administration hits the pocketbook of all. Managing Editor Virgil M. Newton, Jr., of the Tampa (Florida) Tribune, and Chairman of the Advancement of Freedom of Information Committee of Sigma Delta Chi, national professional journalism fraternity, has been trying for three years, via the Civil Service Commission, the Department of Justice, and the White House, to discover the names and amounts of pensions paid, largely out of tax monies, to former Congressmen. These, it is explained with some indignation, are private matters between government and recipient. Senator Williams of Delaware, luckier, contrived a breakthrough. He told his colleagues in June, 1955, that among the windfall-pensioners was one who had wangled an additional $444 per annum by a payment of $10.12. Recently the Civil Service Commission agreed that the amounts of pensions may be disclosed if the recipients consent. With that, until Congress acts, the garden variety of citizen must be content.

Many citizens would prefer whisky that has not been watered down surreptitiously. Most of those who have ordered a shot of Old Comforter would like a shot of Old Comforter and not one of another, perhaps inferior, brand sneaked into Old Comforter bottles. These persons think they should have the right of access to the identity of saloonkeepers caught in the act by the alcohol tax unit of the Internal Revenue Service. Not so. Those too are matters of privacy between the miscreants and their government.

Some corporate entities, by virtue of their charitable, educational, or similar public-benefit functions— but not political functions — are entitled by law to exemption from certain federal taxation. Rightly administered, the policy of the law is undoubtedly sound, but each Internal Revenue ruling granting exemption touches every taxpaying citizen. There have been great numbers of such rulings. Some, including the ideologically controversial, are of questionable validity. The applications, it has been ruled, are secret. This in effect is administration of justice behind closed doors by non-judicial officials. It has been reported that the Treasury Department favors corrective legislation.

Secrecy, sometimes relaxed by official “discretion,” surrounds compromise settlements of tax liabilities. The Moss Subcommittee on Government Information was told in November, 1955, of a case involving upwards of twelve million dollars that was settled for ten cents on the dollar. A newspaperman, applying as a taxpayer and citizen, was unable to obtain pertinent information.

These cases illustrate a marked trend toward increase in secrecy covering financial transactions between the government and some classes of citizens. One aspect of the dominance of “discretion” and the absence of law is the varying federal policy on disclosure of such simple subjects as the names and salaries of employees. One agency declared to Congress that it makes them available to the public. Another said it had no policy at all. Still another admitted it revealed or concealed according to its views of the “legitimacy” of the purpose and of the “responsibility” of the newspaperman seeking the information. Policy varies on peanut butter too. One agency declined to reveal the amount purchased by the military lest a potential enemy deduce the number of men in the armed services. Meanwhile another agency housed nearby was regularly reporting to the public the number of men in these services being supported by their tax dollars.

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THE causes for suppression are numerous. They are not to be found mainly in official malfeasance, improper motives, or incompetence. The Moss Subcommittee hearings disclosed that they include the explosive expansion in governmental activities; the heavy volume of functions shifted from the glass bowls in which legislatures and courts operate to the opaqueness of legislative committee rooms and the offices of swarms of administrative agencies acting in legislative, quasi-judicial, and executive capacities; and the tension in the world situation.

Experience shows other — and less majestic — causes: the burgeoning activities of cults of secrecy which in their misguided, though often well-intentioned, opposition to public information have contrived to produce statutory and discretionary secrecies; the arrival in government positions of large numbers of persons accustomed to privacy in the conduct of their own business and unfamiliar or not in sympathy with the traditional philosophy that citizens whose taxes pay the fiddlers have the right to call the tunes; the heady wine of discretionary authority to reveal information of favorable character and to conceal that susceptible of the opposite effect; the pleasurable and, on occasion, the profitable sensation of discriminating between seekers of information; and the apathy of the people themselves. Moreover, almost, invariably some sort of argument may be — and is—made for secrecy.

Edward Livingston said: “No nation ever yet found any inconvenience from too close an inspection of the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible only because the means of publicity had not been secured.” To that we have entrusted our all. It is the foundation of our guaranteed freedoms of thought and expression which without freedom of inquiry are fettered into futility.

Nevertheless, our national officers do find inconvenience from inspection of their conduct. Very frequently indeed inspection subjects a public officer to exposure, adverse criticism, irritation, extra work, or, at the least, bother. In the absence of law all these — and some additional — formulae to apply secrecy are as handy as they are tempting. And who knows but that public cognizance of some action, some statement, some recommendation, by any public officer from the highest to the lowest might adversely affect his chances for employment in private industry or his advancement within the bureaucracy or threaten his job itself. There is security in concealment and anonymity.

In another sense a prime cause of suppression is the legal basis asserted to sanction it. On its face the law seems to be that, in the absence of general or specific acts of Congress affirmatively creating clear, legal right of inspection, there is no enforceable right of the people, including the press, to inspect any federal non-judicial record. Congress itself is little, if any, better off, for, as it has been told sternly by the Department of Justice: “The long continued practice of the executive branch to withhold confidential papers, in the national public interest, from the legislative branch, and the passage of no law by Congress to change the practice argue persuasively for the possession of such a power, under the Constitution by the Executive.”

Thus a vast area of federal plans, policies, and actions in the conduct of the public business is none of the public’s business except as officialdom is disposed to be gracious. Blocked by “official discretion"—with which the judiciary may not interfere—as to what is “confidential” and what is “national interest,” the courts stand aside as a band of silent men. It is little wonder that there is no reported case in which a citizen has established, or in which a newspaper has even ventured to try to establish, in court the right to inspect a federal non-judicial record.

The strongest points in the barricade of secrecy may be noted. Basic to freedom of information are definition of the term “public records” and declaration of a right of inspection thereof. Every state, by statute or court decisions, has such laws, naturally of varying effectiveness. Neither the Congress nor the federal judiciary has defined the term in this connection or granted general recognition of such rights. Thus the kind of records which by virtue of law lie open in glass bowls in state and municipal offices may, by absence of law, be whisked behind curtains of secrecy in federal offices.

There are affirmative barriers. Title 5, United States Code, section 22, enacted soon after the birth of the nation, is a “housekeeping statute” granting authority to heads of executive departments to make regulations “not inconsistent with law” for the “custody, use and preservation ” of records and papers. The statute is officially interpreted and applied as authorizing non-use— which, of course, means suppression.

As the culmination of more than a decade of effort to safeguard against the tyranny of the fastmultiplying administrative agencies, Congress in 1946 unanimously enacted the Administrative Procedure Act, Title 5, United States Code, sections 1001-1011. Whatever its effect in regularization of procedure for the benefit of parties and attorneys in administrative proceedings, it has proved so far an abject failure as a “public records act” for the information of the citizen. As the American Law Section of the Library of Congress reported to a Senator, “the several qualifications in that Act have enabled agencies to assert the power to withhold practically all the information they do not see fit to disclose.”

This Act allows officials to withhold, first, records in which “there is involved any function of the United States requiring secrecy in the public interest ” — a substantially meaningless, subjective term that gets all snarled up with the “interest” of bureaucracy; and second, those in which is involved “any matter related solely to the internal management of an agency” —a singularly useful hideaway. Whatever other disagreements there may be between government officials and agencies, they speak as one for the proposition that an orderly system of government is impossible unless its “internal management ” is protected. “Confidential for good cause found” is a handy label. “Good causes" abound.

In May, 1954, amidst the swirling political eddies of the Army-McCarthy hearings, the Senator felt a need to adduce, and the government felt a need to bar, testimony about conversations between officials of Army, Department of Justice, and the White House — a formidable trio. The results were a memorandum by Attorney General Brownell and a letter of May 17 from President Eisenhower to Secretary of Defense Wilson asserting a judicially unreviewable discretion to withhold any information which is considered confidential or which would be incompatible with the public interest or jeopardize the safety of the nation — this being a firm principle on which our country’s strength, liberty, and democratic form of government will continue.

Whatever the validity of all this may be as related to presidential power —and it is expression of opinion only and not law — it is being exercised by other officials without President Eisenhower’s prior cognizance or subsequent approval. The President’s directive and the Justice Department’s supporting memorandum, it is reported, have already sired nineteen “little Presidents”—lesser officials who have taken upon themselves the President’s prerogative — and it is not unlikely that the progeny will increase, especially as those who withhold information may comfort themselves with the feeling that they are preserving the constitutional separation of powers and protecting our country. But the people may not feel certain that all who step into the President’s shoes will walk with the circumspection and humility rightly to be expected of the Chief Executive.

This much is clear: the Congress, to which alone the lawmaking power is entrusted by the Constitution, can legislate, if it will, far-reaching freedom for itself, the people, and the press without encroaching upon actual powers of the President, whose temporary duties in that high office cannot override his permanent and fundamental duties as a citizen and as a debtor to justice.