INFORMATION TO SISS, BASIS OF THE OTEPKA CHARGES John F. Reilly, Deputy Assistant Secretary for Security, drew a distinction between giving information to the committee and "backdoor dissemination to staff members." He obviously felt departmental employees are acting improperly if they furnish information to committee staff employees rather than directly to Members of the Senate. Likewise he believed an employee is "doing wrong" if he discloses departmental dishonesty or bad security to a Senate committee "without first having told his superiors." He adhered to this view notwithstanding that an act of Congress protects the right of civil service employees to give information to Congress. Pertinent testimony follows: Mr. SOURWINE. Do you think an officer of the Department of State is committing an offense if he gives information to the Senate of the United States? Mr. REILLY. That again is an area covered by my instructions. Mr. SOURWINE. I respectfully suggest it is not. There is nothing in that question about Mr. Otto Otepka. Senator HRUSKA. And the Chair so rules. There is no connection at all with the instructions as you have described them, Mr. Witness. Mr. REILLY. Mr. Chairman, I would say this-I would draw a distinction between the presenting to Members of the Senate or the Representatives or to their committees, openly, information, and the private back-door dissemination of information to staff members. Mr. SOURWINE. Mr. Reilly, don't you think a committee of the Senate of the United States has the right to interview prospective witnesses who are employees of the Department of State? Mr. REILLY. I haven't quarreled with that, have I, sir? Mr. SOURWINE. Do you think that, in the case of such interviews, they must be conducted by Senators? Don't you think a committee can have a staff member or staff members interview employees of the Department of State with perfect propriety? Mr. REILLY. Mr. Sourwine, we would be getting into an area here where I think you and I are going to disagree. Mr. SOURWINE. I am quite sure we are. Mr. REILLY. Fine. Mr. SOURWINE. But I want to make a record on what your feeling is with regard to these matters. I think it is important as the responsible head of the Office of Security that we should know what your view is in this regard. Do you remember the question? Mr. REILLY. Now, will you repeat the specific question? Mr. SOURWINE. I would be glad to. Don't you think that a committee of the Senate of the United States can send staff members to interview or a staff member to interview an employee or employees of the Department of State, with perfect propriety? Mr. REILLY. I think upon due notice given to the head of the agency that that is what they are going to do. Mr. SOURWINE. Do you think it is necessary for this committee or any other Senate committee to give notice to the head of the agency before it can interview employees of an agency in the executive branch? Mr. REILLY. I think propriety would dictate that. Mr. SOURWINE. Suppose an employee in one of the agencies in the executive branch knows of something that is wrong, either from a security standpoint or from the standpoint of honesty or ethics or the proper conduct of the affairs of the Government, and he goes to the appropriate committee of the Senate or to a member of the staff of that committee and discloses his fears and tells what he knows. Is he doing wrong? Mr. REILLY. If he does this without first having told his superiors what it is he feels is wrong. Mr. SOURWINE. He is doing wrong? Mr. REILLY. I say "Yes." You and I may differ on this. We do. • State Department Security hearings, pt. 2, pp. 28-29. Mr. SOURWINE. Do you realize that you are rewriting an act of Congress when you add that condition? Mr. REILLY. Which act? Mr. SOURWINE. You probably don't. You don't realize that? Mr. REILLY. Which act of Congress is this, sir? Mr. SOURWINE. Are you familiar with the act approved June 10, 1948, it is in 62 Statutes, which provides the right of persons employed in the U.S. civil service either individually or collectively to petition Congress or any Member thereof or to furnish information to either House of Congress or to any committee or member thereof, shall not be denied or interfered with. Didn't you ever hear of that law? Mr. REILLY. I have. Mr. SOURWINE. Did you take that law into consideration in all your actions against Mr. Otepka? Mr. REILLY. Yes, sir. Richard A. Frank, attorney, Office of the Legal Adviser, testified that Mr. Otepka furnished three classified documents to the committee: Mr. SOURWINE. Do you know that Mr. Otepka's superiors contended he should not have given certain security information to the Internal Security Subcommittee? Mr. FRANK. I know that that is the feeling of some in the Department of State, sir. Mr. SOURWINE. Do you know what security information he was alleged to have given the committee that his superiors felt he should not have given? Mr. FRANK. Yes, sir; I do. Mr. SOURWINE. And what is the nature of that security information? I am not asking for the content now. Was it a classified document? Was it something from his security file which was unclassified but which the Department figures should not have been given because it was out of that file, or just what was the nature of the information? Mr. FRANK. There were three documents which did have a classification on them. I don't remember now the exact titles of the documents. I'm sure I could check my files for that information. Secretary Rusk says Mr. Otepka's testimony before this committee has "nothing to do" with the charges against him: Senator MCCLELLAN. Now, let me ask you this, is this man Otepka in danger of losing his job because he testified before this committee? Secretary RUSK. His testimony before this committee has nothing to do with it, Senator." SECRETARY RUSK'S PART IN THE OTEPKA CASE Appearing before the subcommittee on October 21, 1963, Secretary Rusk testified he ordered the investigation of the Otepka case, but did not participate further at that time." During the past summer, evidence came to my attention concerning alleged activities of Mr. Otepka. This evidence, if true, seemed to me on its face to present some serious questions of security in the Department. I asked the appropriate officers to make a thorough investigation of all the evidence and to analyze the questions of law involved. I directed them to prefer charges only if they were satisfied that there was evidence and basis in law sufficient to warrant such action. I abstained from further participation in the matter because I will make the ultimate departmental decision, as the President mentioned in his last press conference. Title 5 U.S.C. 652(d), 62 Stat. 354, which reads as follows: "(d) Right to petition Congress. "The right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with." State Department Security hearings, pt. 5, p. 277. 7 State Department Security hearings, pt. 5, pp. 267-268. On May 4, 1965, Mr. Crockett testified as to his version of Mr. Rusk's participation in the Otepka case: 8 Mr. SOURWINE. Sir, it has been reported to the committee that you have stated that the Secretary of State considers the Otepka case as "his case." Is that correct? Mr. CROCKETT. Yes; that is correct, in the sense that he has deep personal interest in it. There is no one, I think, in the whole Department who wants to see justice done more than he. And he was the person that caused the regulations to be changed so as to be more compassionate to people, in this kind of situation, until the case is brought to conclusion. So the Secretary has indicated a continued personal interest in the case. Mr. SOURWINE. Has the Secretary made any of the basic decisions with respect to the case? Mr. CROCKETT. It depends on when you say the case started. For instance, he made a basic decision that there should be the investigation. Mr. SOURWINE. Did the Secretary make a personal decision that Otepka was to be formally charged? Mr. CROCKETT. Yes; I am sure he was involved in that decision. Mr. SOURWINE. Did the Secretary make the decision that Otepka was to be dismissed? Mr. CROCKETT. I think it depends again on what-I don't want to quibble, Mr. Sourwine, but I don't want to answer inappropriately. Mr. SOURWINE. I don't mean to quibble, either. Mr. CROCKETT. But I don't know what "dismissal" means. Mr. SOURWINE. I am talking about the dismissal order which was entered and which is now on appeal. It isn't final yet. Mr. CROCKETT. That is right. But I didn't want the implication to be that he was Mr. SOURWINE. I want to be precise. Mr. CROCKETT. Yes; he did participate in this. Mr. SOURWINE. Has the Secretary made any decisions about who ought to be the State Department's witnesses? Mr. CROCKETT. No, sir. Mr. SOURWINE. Did he make any decision about Mr. Otepka's new assignment or his reassignment? Mr. CROCKETT. No, sir. Mr. SOURWINE. Would you say the Secretary is substantially in charge of the Otepka case? The Mr. CROCKETT. Yes, sir; insofar as its final determination is concerned. Legal Adviser's Office is in charge of the appeal now pending on Mr. Otepka's dismissal and, actually, I guess you would say they are in charge of the case. CHARGES AGAINST OTEPKA It took quite a bit of doing to run out even the question of just who ordered, who drew up, and who filed the charges against Mr. Otepka. Various persons and offices were involved. There was testimony (May 4, 1965) by Mr. Crockett indicating that the charges were filed by the Chief of the Personnel Operations Division, who also sustained them after Mr. Otepka had made his answers. Mr. Crockett said his part was to "order" the charges: 9 Mr. SOURWINE. The letter to Senator Clark from Mr. Dutton under date of May 18, the second paragraph, the next to the last sentence says, "Charges were subsequently filed." There are two questions about this. Who made these charges; who ordered that they be made? Mr. CROCKETT. The Chief of the Personnel Operations Division, in accordance with our regulations to bring charges for misconduct. They were made after the Department's investigation of the case had been made and were ordered by the Deputy Under Secretary for Administration. State Department Security hearings, pt. 5, pp. 294-295. Mr. SOURWINE. The last clause of that second paragraph states that "the initial Departmental decision was upheld." And the question is, Who made the decision, who was responsible for that decision? Mr. CROCKETT. The Chief of the Personnel Operations Division notified Mr. Otepka of the charges and then gave Mr. Otepka an opportunity to answer them. After his answer, the Chief of the Personnel Operations Division determined, in the first instance, that these charges were sustained and notified Mr. Otepka he could appeal that decision. Months subsequent to the above, in connection with correcting his testimony, Mr. Crockett supplied the following answers in writing: 10 Mr. SOURWINE. What, if anything, did you have to do with drawing up the charges against Mr. Otto Otepka? Mr. CROCKETT. Although I was aware that the charges were being prepared against Mr. Otepka, I did not personally have anything to do with the development of the charges or the phrasing of the charges. Mr. SOURWINE. What did the Secretary of State himself have to do with draw. ing up the charges against Mr. Otepka? Mr. CROCKETT. To my knowledge he had no more to do with it than I. Mr. CROCKETT. To my knowledge Mr. Ball had nothing specifically to do with this. Who prepared the charges? It was Abram Chayes, while he served as State Department legal adviser. His testimony (Aug. 14, 1964): 11 Mr. SOURWINE. Did you have any official part to play in connection with the Otepka case? Mr. CHAYES. Yes. Mr. SOURWINE. Did you perform work in the preparation of the Department's charges? Mr. CHAYES. Yes. Mr. SOURWINE. If I proceeded further under the circumstances, Mr. Chairman, about that case, I think I would be likely to run into the rule involving the privileged attorney-client relationship, so I will not. Mr. CHAYES. I would just for the record like to say in a procedural way, if I could, what I did. Mr. SOURWINE. All right. Mr. CHAYES. When the material was produced by Mr. Reilly and disclosed to the Secretary from the so-called burn bags, Mr. Ball and the Secretary called me in, asked me it was the first time I had seen anything of this or had any knowledge of it, of any of it-asked me to review the material and make recommendations to them as to whether there had been violations of regulations or violations of law and whether charges should be preferred. And I did that and I did make such recommendations. Mr. SOURWINE. Having volunteered this much, do you want to state what your recommendations were? I don't ask you if you don't want to. Mr. CHAYES. Oh, I think it is fair to say I recommended that charges be preferred. Mr. SOURWINE. In other words, what was done was on your recommendation. Mr. CHAYES. Well, I recommended that. They made their own decision. Mr. SOURWINE. Can you tell us if it is correct that Mr. Rusk and Mr. Ball have made most of the decisions, have themselves made most of the decisions in the Otepka case? Mr. CHAYES. Well, you say most of the decisions. Every major step in the case has been considered either by Mr. Rusk or Mr. Ball. Mr. SOURWINE. Is it a correct statement that Secretary Rusk is deeply interested in this case? Mr. CHAYES. Well, once the charges were preferred- -excuse me. I had better back up. Mr. SOURWINE. Yes. Ibid., pt. 8, p. 556. 11 State Department Security hearings, pt. 8, p. 497-499. Mr. CHAYES. Because during the period of the examination of the evidence and decision to prefer the charges and so on, we specifically routed matters to Mr. Ball for his decision because we knew that Mr. Rusk ultimately would have to review any decision, and we didn't want to have the question of prejudgment there at all. Mr. SOURWINE. You mean the decision to bring the charges was Mr. Ball's? Mr. CHAYES. Was made by Mr. Ball. Mr. SOURWINE. Yes, sir. Edwin A. Burkhardt, a personnel security officer, who worked with Mr. Otepka, calls the charges against Mr. Otepka a "frameup." His statement appears in a letter to the Appeals Examining Office, U.S. Civil Service Commission, dated April 7, 1964. "I previously informed the FBI that I was of the opinion the charges were a frameup, and as of this date, from the information coming to my attention through the news media and the release of records of Congressional hearings, I have no basis to change my opinion." 12 12 State Department Security hearings, pt. 17, p. 1351. |