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It went like this on March 5, 1964:
Mr. Hite. Mr. Sourwine, I am somewhat puzzled. I don't know if I am supposed to tell you. We were briefed before we came here and we were admonished to rely on the Presidential directive of March 1948 which relates to
Mr. SOURWINE. I am familiar with the directive, sir,
Mr. SOURWINE. But were you given instructions which would inhibit your testimony here in response to the committee's questions?
Mr. HITE. Well, in some regards. If you want
Mr. SOURwINE. "In what respect or respects is your testimony inhibited by the instructions you were given?
Mr. HITE. Well, we were, as I indicated, told to rely on the Presidential directive of 1948, indicating that we were not to discuss the contents of files, personnel security files. There were two other admonitions. We were not to produce any documents if requested and we were not to discuss the merits of the Otepka case.
Mr. SOURWINE. And who gave you these instructions?
Mr. HITE. Mr. Chayes--actually, I have been briefed three times. Mr. Tom Ehrlich. And Mr. Chayes also briefed me on one occasion and then, later on, Mr. Richard Frank.
Mr. SOURwINE. You were never briefed by Mr. Hoover?
Mr. SOURwINE. Now, the question that is pending that has been asked of you does not call for the production of any documents.
Mr. Hite. No, sir.
Mr. SOURWINE. The question calls only for the name of the person you are evaluating at present.
Mr. HITE. Yes, sir.
Mr. SOURWINE. So, can you give us the name of the individual whose security case you are presently evaluating?
Mr. Hite. I would say, Mr. Sourwine, that I should not hesitate to give the name, without revealing the contents of the file.
MISS KNIGHT GETS HER BRIEFING
By the time the legal experts briefed Miss Frances Knight, Director of the Passport Office, on August 14, 1964, the pattern was well set. She was told to tell the truth, to be silent on the Otepka case, and to refer to the Department any requests for documents."
Mr. SOURWINE. Who briefed you?
Mr. SOURwINE. Were you told by Mr. Frank, as a part of this briefing, not to testify with respect to any particular matters or in any particular specified areas?
Miss Knight. It was a very brief briefing, Mr. Sourwine.
Miss Knight. I was told to tell the truth, not to discuss the Otto Otepka case, and to advise the committee that arrangements were made to produce documents by requests directed to the Department.
Mr. SOURWINE. Were you told by Mr. Frank that you could not discuss the Otepka case at all, or were you given some limited instructions in that area?
Miss Knight. Well, I believe he-in our discussion during this short briefingpointed out that the Otepka case was under consideration in the Department and there was to be a hearing and, therefore, I was not to discuss it. I explained to Mr. Frank that I knew so very little about it except for what I read in the newspapers that I couldn't discuss it anyway.
Mr. SOURWINE. You are not now and never have been in even the same Office as Mr. Otepka, have you? 10 State Department Security hearings, pt. 18, pp. 1518-1519. 11 State Department Security hearings, pt. 18, p. 1520.
Viss Knight. No, sir.
Col. George W. French, Jr., who was brought into the picture as a special assistant to the Deputy Under Secretary for Security, Mr. Crockett, to investigate problems in the Office of Security, got similar broad treatment in his briefing. His testimony on August 6, 1964, was short: 12
Mr. SOURWINE. Colonel French, were you briefed by an official of the State Department with respect to this hearing before you came up to testify?
Mr. FRENCH. Yes; I was briefed to the third agency rule, that I was not to give any information that had been derived from another agency, and that I was to tell the truth and was to—was not to discuss the merits of the charges in the hearing currently with regard to Mr. Otepka.
Mr. SOURWINE. * * * Who briefed you?
Mr. SourwinE. Were you told not to testify with respect to any particular matters?
Mr. FRENCH. No, sir; except those that have been covered.
Mr. SOURWINE. You were told not to testify with respect to the merits of the Otepka case?
Mr. FRENCH. Right, sir.
Mr. SOURWINE. Were you instructed in any way with respect to a possible request by the committee for documents?
Mr. FRENCH. Yes. If a document was requested that was a part of a security file or dealt in a personality, I was to respectfully request that the committee prepare a letter for the Secretary and request this document, sir.
Karl D. Ackerman, international relations officer, also was told of areas about which he should not testify:13
Mr. SOURWINE. Mr. Ackerman, were you briefed by the State Department, or by officials of the Department, with respect to this hearing before you came up to testify?
Mr. ACKERMAN. I had a conversation with Mr. Frank, first of all in connection with my inability to appear the first time you wished to have me up here. This morning, on the way up, he gave me a rundown in terms of the limitations of my testimony in accordance with the agreement with the committee here.
Mr. SOURWINE. The only question I want to ask about your briefing is, were you told of any particular areas or matters about which you should not testify?
Mr. ACKERMAN. Mr. Frank simply outlined two or three general areas in which there were limitations on the testimony I could give: the third agency rule, any questions dealing with documentation, or rather my personal competence to turn over documents to the committee, and any questions dealing with the merits of the Otto Otepka case.
John R. Norpel, Jr., and Robert McCarthy received different instructions about answering questions about the William Wieland case. Mr. Norpel told the subcommittee:14
Mr. SOURWINE. What were the instructions you were given?
Mr. NORPEL. In the first instance, Mr. Chayes indicated that he desired to have better relations with this subcommittee and he advised Mr. McCarthy and myself to tell the truth and to be completely candid and open in our comments concerning things within our personal knowledge. The prohibition against an 12 State Department Security hearings, pt. 18. pp. 1525–1526. 13 State Department Security hearings, pt. 18, P. 1528. 14 State Department Security hearings, pt. 18, pp. 1507-1508.
open discussion dealt with getting into the merits or discussion of the charges in the Otepka case, that we were not to bring any State Department documents with us and that we were not to disclose information within our knowledge in personnel security files. In response to one of my questions, I was led to believe that this includes even general knowledge.
Mr. SOURWINE. You are, in other words, permitted to testify about things you have done and seen but you are to give no opinions; with regard to those things seen, you are not to give the committee information respecting anything within the security files. Is that a fair version?
Mr. NORPEL. That is my understanding; yes, sir.
Mr. SOURWINE. When you got your briefing from Mr. Chayes, was there any specific mention made of the Wieland case?
Mr. NORPEL. Yes, sir. Mr. SOURWINE. What was said about it by Mr. Chayes? Mr. NORPEL. It was brought up by Mr. McCarthy at the point at which Mr. Chayes stated we were not to disclose the identity-or derogatory or other information from personnel security files. Mr. McCarthy noted he had already testified before the subcommittee concerning his—I don't know the exact word he used, but the word, I guess, that would fit, would be knowledge of the Wieland case and the Wieland file.
In that instance Mr. Chayes said, “Well, you will have to tell them the truth or tell them what they want to know.”
Mr. SOU'RWINE. You were not told not to discuss the Wieland case?
Mr. Norpel. Only in general terms of reference, I wasn't to discuss any personnel security
Mr. SOURWINE. But there was a caveat of sorts?
Mr. SOURWINE. That is, in the instructions of Mr. Chaves that if you were asked specific questions, you have to tell the truth; is that right?
Mr. NORPEL. Yes, sir. Mr. SOURWINE. Well you heard Mr. Chayes say it was all right to discuss the Wieland case
Mr. Norpel. No, sir: I thought that was addressed to Mr. McCarthy because the exception in that instance.
Mr. SourWINE. In other words, it was your understanding, Mr. McCarthy was given instructions to answer specific questions about the Wieland case but you were not? Mr. NORPEL. Yes, sir.
THIRD AGENCY BROUGHT INTO BRIEFINGS
The third agency rule for information control has complications in its application. Does it, for instance, apply to conversations between employees of different agencies, as well as to written or printed documents? Here are two views that developed during testimony of Richard A. Frank 15 and Harry Hite on August 13, 1964:
Mr. SOURWINE. Does the third agency rule, as you understand it, cover a situation in which an employee of the State Department may have had dealings with an employee of another agency, not involving documents, and is then asked to testify about his dealings with the other agency?
Mr. FRANK. Yes, sir; I think it would cover the information that might have been transmitted from one agency to another
Mr. SOURWINE. Would it prohibit a statement in response to pertinent questions as to what the State Department employee did in connection with these negotiations?
Mr. FRANK. That would be somewhat difficult, Mr. Sourwine. It would depend on circumstances.
For instance, I could contemplate a situation where, by a State Department employee saying what he did, a third party would know what the substance of the conversation was and also what the other agency's employee did, and therefore, we would, before doing that, want to alert the other agency and get its permission.
18 State Department Security hearings, pt. 18, pp. 154(-1547.
To copy a loaned document, for internal use at a department, was assumed as permissible, unless the source agency forbade it, he suggested. He thought copying was customarily done. He didn't know of any rule against it."
Mr. Frank. I do not believe the third agency rule is applicable to copying documents for internal use. I do believe the receiving agency could assume it had permission to copy the forwarding agency's documents.
Mr. SOURWINE. is clear, is it not, that if you get a document from the Department of Justice which is classified and which is loaned you, or to which access is permitted, you may not copy that document for your own files without the knowledge and consent of the Department of Justice?
Mr. FRANK. Well, I think in most instances that is done.
Mr. SOURWINE. I'm not asking about what is done. I'm asking about what the proper rule is.
Mr. FRANK. I'm not sure there is a rule against this.
He said that when the State Department gets an FBI report he thought there was a notation on it as to what the Department could do with it and that the Department was bound by that.
Mr. Sourwine. In other words, the agency which originated the report controls what you may do with it?
Mr. FRANK. That is correct, sir. However, these notations, for instance from the FBI, pertain to further dissemination, not copying.
And then he raised the point of implied authority or assumptions."
Mr. SOCRWINE. And if you simply got the report without anything on it except the indication that it was classified, you would have to have the permission of the department that originated it before you could make copies, whether you got that directly or implicitly or by assumption?
Mr. FRANK. Well, yes. It is very possible that this authority might be implied authority or come by assumption. The very fact that they gave you the document is usually enough to assume that they gave you permission to copy it.
Mr. Frank said that the third agency rule could prevent a State Department witness from telling the subcommittee what action the Justice Department had taken on a State Department matter. 11
Mr. SOURwINE. Let me give you an example. We had a question here about the reference of the Wieland case to the Department of Justice for determination with respect to a possible prosecution for perjury. An employee of the State Department is asked about that. Does the third agency rule prohibit him from replying and disclosing that it was so referred?
Mr. FRANK. No, sir; I would say the third agency rule would not do so.
Mr. SOURWINE. Does it prohibit the State Department employee from answering a question about whether the Department of Justice has reached a determination, and if so, what that determination has been?
Mr. FRANK. Yes, sir; unless the Justice Department has given the implied or expressed permission to do so, or unless it had become part of the public record.
Mr. SOURwINE. Mr. Hite, you have heard what Mr. Frank has said. Do you agree with it?
Mr. Hirs. Up to a certain point. I have never known of the application of a third agency rule to conversations between employees of agencies.
MR. CHAYES GIVES HIS VERSION
Abram Chayes, Legal Adviser to the Secretary of State, voicing his version of the third agency rule, brought congressional committees into the picture as among agencies that could not be given a document State Department Security hearings, pt. 18, p. 1542. 10 lbid, pt. 18, p. 1543. 11 Ibid, pt. 18, p. 1546.
Mr. CROCKETT. Yes, sir; on the basis that this might be detrimental to Mr Otepka's case.
Mr. SOURWINE. Did these instructions to witnesses not to testify about the merits of the Otepka case result, perhaps, from concern of the Secretary that these people should avoid personally involving themselves in the case, in view of the fact that they were all either witnesses expected to be called by Otepka or witnesses expected to be used by the Department?
Mr. CROCKETT. Yes; it was inappropriate for these people to express opinions when they might be called upon to be witnesses for either side.
Mr. SOURwINE. Would you think that the giving of testimony with regard to a set of facts would influence the testimony the same witness might give later about the same set of facts?
Mr. CROCKETT. No, sir; I would not.
Mr. SOURWINE. Since prospective witnesses before this committee were instructed not to discuss the merits of the Otepka case, but were not told what was meant by the phrase, “the merits of the Otepka case," don't you think that, in effect, each of these witnesses was put on notice that if he discussed anything at all having to do with Otepka he might be violating an instruction of the Department?
Mr. CROCKETT. This is a possibility.
Mr. SOURWINE. Do you feel that the Department was on sound ground in exercising one of its rights in instructing witnesses that way?
Mr. CROCKETT. I think the Department's effort was to protect Mr. Otepka.
Mr. SOURWINE. You don't regard it as an assertion of the claim of executive privilege?
Mr. CROCKETT. No, sir.
Mr. SOURWINE. Would you say that any instructions by the Legal Office of the State Department to a State Department employee who was about to testify before this committee can supersede or override the obligation of the employee under his oath before the committee to tell the truth, the whole truth, and nothing but the truth?
Mr. CROCKETT. No, sir.
Henri G. Grignon, Assistant Director for Personnel Security, appearing August 6, 1964, had no worry about being questioned about the merits of the Otepka case.18 He said he couldn't discuss it because he didn't know the case.
During his appearance subcommittee counsel said it had been arranged that Richard A. Frank, Department lawyer, could speak up at the hearings if he thought questioning was entering prohibited areas.
(This arrangement operated briefly with varied success but soon brought complaints that Mr. Frank was answering questions for witnesses instead of merely advising them. He finally was told to leave the hearing.) 19
Mr. SOURwINE. Were you briefed by an official of the State Department with respect to this hearing before you came up to testify?
Mr. GRIGNON. Yes, we had a meeting last evening with Mr. Frank and myself, the normal type of briefing which indicates that I should be responsive and, of course, tell the truth, which, of course, I'm prepared to do.
Mr. SOURWINE. Were you told not to testify with respect to any particular matters or in any specified areas?
Mr. Grignon. Well, there are certain limitations, the normal limitations of classified information pertaining to individuals; that type of limitation. 18 State Department Security hearings, pt. 18, pp. 1526-1527.
19 The dispute arose over Mr. Frank's persistence in interrupting the examination of Alen S. Whiting of the Bureau of Intelligence and Research, August 13, 1964. State Department Security hearings, pt. 6. (The Otepka case) State Department Security hearings, pt. 2, pp. 385-405 (Bureau of Security and Consular Affairs) pp. 340-342.