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Services. That, in the current argot, would be "a hell of a way to run a railroad."

Second, argues Professor Bishop, "Congress may not be a safe repository for sensitive information," and "in the heat of partisan passion" the national interest may run "a very poor second to considerations of faction." He cites as an example Senator Burton K. Wheeler's revelation of "the Navy's occupation of Iceland [during World War II] while the operation was still in progress and the ships vulnerable to attack by submarines," apparently because Wheeler was an "extreme isolationist." 562 Such conduct should not be extenuated; but is the alternative to conceal from Congress occupation of a foreign country until after the event? Consider an "occupation" of Guatemala or Cuba.

The British have "successfully practiced" an "alternative to non-information," taking the legislature into executive "confidence very fully" subject to security checks applicable to the executive; and an English writer remarks that during World War II the "high quality" of security was "astonishing" in light of the extent to which "Parliament was privy to the details" and "continuous publication to between six and fourteen hundred persons.' 1503 Our own early history affords a parallel example: the injunction of absolute secrecy for the proceedings of the Constitutional Convention was scrupulously observed.

504

If it be assumed that some "sensitive" information must be withheld, that need scarcely justifies the wholesale withholding of minor matters reported in the Kramer and Marcuse collection. But, in fact, really sensitive matters are not shielded from congressional leaders, witness President Kennedy's disclosure to the leadership on the eve of the Cuban "quarantine" in November, 1962.5 Nor

500 Sce text accompanying notes 356-65 supra.

501 Bishop 486.

502 Id. at 486 n.41. For additional examples, see Newman & Keaton 570-71 n.38. The authors also call attention to examples of “possible abuses of the executive right of privacy."

603 Parry 741.

501 FARRAND, FRAMING 58-59.

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605 See text accompanying note 533 supra. Professor Bishop generously read the manuscript of this article and concluded, I am authorized to say, that "our differences are mainly differences of emphasis. When I say that unlimited discretion in Congress to require the Executive to disclose information would be intolerable, I mcan only that Congress should not have the last word. My own view is certainly that there is a strong presumption in favor of disclosing information and that it should be withheld from Congress only in extraordinary circumstances." In a second letter, he agreed that "information is furnished in truly 'extraordinary' circumstances . . The controversies have, without exception, I believe, arisen in the context of domestic political hassles of one sort of another." Yet the Teapot Dome

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is it conceivable in light of the astronomical appropriations that were required to be accounted for, that the leadership in Congress was kept in the dark respecting the Manhattan Atomic Project. That confidence was kept inviolate. It would be a sad day for America if crucial foreign or military affairs were to be concealed from Congress. The Constitution was designed to prevent the President from embarking on military or foreign adventures single handed. To that end, for example, the power to declare war was lodged in the Congress," and without information Congress cannot act as a check. Grave matters of state inevitably must be and are shared, so that in reality the plea of secrecy serves chiefly to shield the inconsequential.

The executive branch cannot ask the Congress to have faith in it when it exhibits none in Congress, as when the Army refused to divulge information about the unfortunate U-2 flight over Russia in 1960, "even under conditions of complete secrecy." 99567 If there has been an infrequent congressional "leak," the executive branch too has known its dreadful leaks, e.g., Rosenberg.568 There is an aura of self-righteousness about the executive determination that it alone can be trusted with "secrets." "Bureaucrats," no less than Congressman, Professor Bishop recognizes, act both "from the best and worst of motives."

disclosures resulted from just such a "political hassle." A Congress of the President's own political persuasion will look indulgently at executive "peccadillocs."

500 U.S. CONST. art. I, § 8(11).

507 Kramer & Marcuse 892. The flight of an "acknowledged American Spy" over Soviet territory on the eve of a "summit conference" between Khrushchev and Eisenhower, the immediate collapse of the conference, the question whether trigger mechanisms were adequately policed, all agitated the public mind. WHITE, THE MAKING OF THE President, 1960, ht 138-40 (Cardinal ed. 1961).

668 See Rosenberg v. United States, 346 U.S. 273 (1953). On Oct. 11, 1963, the New York Times (Western ed.), p. 1, reported that an Army sergeant who had been assigned to the National Security Agency committed suicide when under investigation for security violations, having allegedly "delivered the nation's most sensitive codes and communications secrets to the Russians."

During John Adams' presidency, Secretary Wolcott, a member of his Cabinet, was supplying Alexander Hamilton, Adams' inveterate enemy, "with confidential government communications." 2 Page SMITII 1043. On a lower level, compare the leak by an Army Intelligence Officer to Senator McCarthy of an FBI report. Kramer & Marcuse 679.

Taylor asks: "Are the members and staffs of the Congressional loyalty investigating committees more or less trustworthy than the security agencies of the executive branch? It is well known that a number of ex-Communists have been employed by these committees, and that many others are in touch with their staffs as sources and consultants. Is the discretion of the stafís, and the sincerity of conversion of these former Communists beyond doubt?" TAYLOR 108. All this is no less true of ex-Communists who have been in the employ of the FBI. See McKay 152.

509 Bishop 477. It is not Senator McCarthy alone who would "prospect in the security files of charwomen, junior clerk-typists and building guards," id. at 488, for a "short order cook" at a Naval Gun Factory was "summarily" barred by an

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Assume that some secrets are of such gravity that disclosure must be rigorously limited. For this situation we have Pitt's suggestion, early picked up by a congressional committee, that the secret be transmitted to a select few designated by the legislature.570 That suggestion was acted upon by Secretary of State Dulles when he showed Senators Taft and Sparkman confidential material respecting a nominee for high office."71 Both President Hoover, and later the younger Hoover, as acting Secretary of State,672 offered to make confidential information available if the Committee would pledge itself not to publicize the information. On both occasions the Committee refused to make such a guarantee, although normally the underlying purpose of access-to obtain information-would be satisfied without publicizing it, and under some circumstances it may be unreasonable to ask for more.

A statutory approach may be suggested: upon written request by an agency head the committee chairman shall direct that the furnished information be considered in closed session at which he or a designated member, other than one implicated in the original request for information, shall be present. Upon executive request, top secret material shall be limited to scrutiny by a few members designated by the presiding officer of the relevant House. Before such materials are released to the public over the protest of the

Admiral after the Security Officer determined that she had failed to meet the security requirements of the installation. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961).

570 In the course of the Walpole debate, Pitt said: "There are Methods, Sir, for preventing Papers of a very secret Nature from coming into the Hands of the Servants attending, or even of all the Members of our Secret Committee. If his Majesty should by Message acquaint us that some of the Papers scaled up and laid before us required the utmost Secrecy, we might refer them to our Committee, with an Instruction for them to order only two or three of the Number to inspect such Papers, and to report from them nothing but what they thought might be safely communicated to their whole Number. By this Method, I hope, the Danger of a Discovery would be effectually removed; therefore this Danger cannot be a good Argument against a Parliamentary Inquiry." 13 CHANDLER 173-74.

One hundred years later a Committee of the House of Representatives said: "Information . . . may be referred to a committee under the charge of secrecy until an examination of it can be made, when, if the committee concur in opinion with the Executive, its publication will be dispensed with. This is the true parliamentary course. It furnishes at once a security against secret abuses and the irresponsibility of public officers and agents which would follow the denial of the right of the House to demand information, and at the same time protects the State against the discovery of facts so important for the time to be concealed." H.R. REP. No. 271, 27th Cong., 3d Sess. 7 (1843). The House Committee found "no warrant in the Constitution" for the presumption "that those interests would be more safe in his [the President's] keeping than in that of the House."

571 BARTH 37-38. Hamilton, so said Madison, complained "of the House, because the members did not go to his office and ask information, instead of requiring it to be publicly reported." 3 ANNALS OF CONG. 947 (1793).

672 Att'y Gen. Memo. 21; Kramer & Marcuse 842.

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[Vol. 12: 1287 agency head, the issue shall be processed through machinery hereinafter suggested573 and submitted to the courts. It would always be open to a court to direct that disclosure be confined to closed hearings. From time to time there may be the lone member who will defy judicial and congressional injunctions of secrecy. A judicial system which has not hesitated to hold the Solicitor General and the Secretary of Commerce in contempt674 would not draw back from teaching a defiant Congressman respect for law. For the infrequent maverick Congress itself has at hand censure and possibly the contempt power to chasten one who departs from its standards. A member of the House was "censured for divulging secret correspondence" in the early days of the republic.675 During World War II Parliament rigorously policed alleged breaches of its security by Members and "constituted itself the jealous guardian of its own. orders of secrecy."570 A Congress which lays claim to sharing grave secrets must accept the responsibility of preserving their secrecy.

673 See p. 1335 infra.

574 See text accompanying notes 329-30 supra.

575 5 ANNALS OF CONG. 443 (1796). The House likewise censored John Randolph for writing to President Adams in a style that was "improper and reprehensible." 2 Page SMITII 1023.

The power of Parliament to commit its own members for contempt stretches back to the 16th century and was judicially confirmed in Burdett v. Abbott, 14 East. 1, 104 Eng. Repr. 501, 555, 557 (K.B. 1811). I have found no case in which Congress attempted to hold a member in contempt, although there is a statement by Congressman Findley in 1793, asserting the most sweeping contempt power. See note 627 infra.

U.S. CONST. art. I, § 5(2) provides that: "Each House may . . punish its members for disorderly behaviour, and . . . expel a member." A dictum stressing punishment for "disorderly behavior" or for "refusal to obey some rule on that subject made by the House for preservation of order" appears in Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1880). Earlier, Mr. Justice Johnson, implying a general congressional power to punish non-members for contempt in the face of the express grant limited to members, explained that "the exercise of the powers given over their own members, was of such a delicate nature, that a constitutional provision became necessary to assert or communicate it. . . . [S]ome such provision was necessary to guard against [the states'] mutual jealousy since every proceeding would indirectly affect the honor of interests of the state which sent him." Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 234 (1821).

In the Convention records, Edmund Randolph's scheme for a Constitution contains a "quaere how far the right of expulsion may be proper," 2 FARRAND RECORDS 140. That "quaere" dropped from sight. Two Wilson drafts contain the statement "may expel a member, but not a second time for the same offense." Id. at 156, 166. From this last, we may conclude that expulsion for an "offense," minimally against the respective houses, was contemplated. What is the effect of the "punishment for disorderly behavior" phrase? I suggest that expulsion for "disorderly conduct" was deemed too drastic and the sanction was limited to punishment short of expulsion. It does not follow that Congress is powerless to "punish" for an "offense" of a different order. The power to expel comprehends a power to impose a less severe sanction, e.g., confinement for contempt in defying an injunction to preserve secrecy in a matter touching national security. This was the power historically exercised by Parliament and there is no evidence that the Framers intended to deny it to Congress.

570 Parry 762-68.

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Third, Professor Bishop argues for preservation of privacy for derogatory information in executive files.577 This is truly a "compelling" consideration.678 But distressing as needless publicity of such matters has often been, it is an issue of decency, of protection of the individual against what Taylor has termed "indecent exposure." The citizen's protection against Congress has not been confided finally to the exccutive departments, root and branch the creation of Congress.680 Historically the claim of an inherent executive power to withhold "derogatory" materials stands on none too solid ground. The Walpole Select Committee refused recognition even to a claim of privilege against self-incrimination; and on the first occasion that Jefferson lectured Congress on the need for protection of the innocent he in fact made a complete disclosure.

This tenderness for "derogatory" information ill becomes an executive branch that time after time has placed the individual in cruelly humiliating circumstances without disclosure for the protection of his interest682 and has not hesitated to reveal the most "derogatory" information when it served its own political purposes.683 It is not necessary to maintain that "Congress is the paladin of civil liberties and the executive their foe"584 for it suffices that the pot cannot call the kettle black. This is not to suggest that reputations of innocent men are to be flung to the dogs but rather to question whether the executive can lay claim on either moral or legal grounds to being the sole and final judge of what Congress may safely see. The individual here as elsewhere must look to the courts for protection against both the President and Congress.

I would not intimate that judicial protection renders congressional self-improvement unnecessary. Congressional lynching-bees have lessened respect for Congress and have shaken the deep-seated

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580 The "chief executive departments are all the work of the first and succeeding Congresses. No constitutional duty demanded their institution; no constitutional duty demands their continuance." Landis 196. This is even more plain in the case of the "independent" agencies which were meant to be the "arm of Congress."

581 13 CHANDLER 224-25.

582 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). Cf. note 539 et al.; Greene v. McElroy, 360 U.S. 474 (1959), discussed at text accompanying notes 456-58 supra; Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950). GELLHORN & BYSE 49, refer to the "notorious insensitivity with which the Immigration and Naturalization Service at times discharged its duties. . . ."

683 Compare Attorney General Brownell's summary in "considerable detail" on television of a "Top Secret" FBI report after the death of Harry Dexter White, to show that White, who had denied these charges under oath before a House Committee, "was known to be a Communist Spy," an incident which Barth describes as "flogging the dead body" of White. BARTH 91-92, 131.

584 Bishop 489.

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