[From the Washington Post, July 29, 1971] ACHESON DEFENDS EXECUTIVE PRIVILEGE (By Murrey Marder) Former Secretary of State Dean Acheson told the Senate yesterday it cannot "pry" into secrets between the President and confidential advisers without causing "useless friction." It would be "a hell of a way to run a railroad" to make officials appear before Congress with a statement from the President, in order to withhold information on grounds of "executive privilege," said Acheson in discussing pending legislation to that effect. "In this city of rumors," said Acheson, "the current name of this bill is not that of its sponsors, the Fulbright-Cranston bill, but the Kissinger bill." That was a doubly-barbed reference to charges by Sen. J. W. Fulbright (DArk.) that presidential adviser Henry A. Kissinger now rules a "super bureau of foreign affairs," beyond the reach of Congress. If this bill is passed, Acheson told a Senate Judiciary Subcommittee on Separation of Powers, headed by Sam J. Ervin Jr. (D-N.C.), it would arouse recollections "of both Robespierre and the late Sen. Joseph McCarthy." It was vintage Acheson, although he occasionally had to cup an ear to hear the Senators. The assertive, 78-year-old Acheson, who never shrinks from controversy, had no rival foreign policy advisers in the White House during the post-World War II construction of U.S. policy in the Truman years. But Acheson scoffed at Fulbright's claim that because Kissinger has "140 employees" he should be accountable to Congress. Whether Kissinger has "one employee or 26 or 126," said Acheson, he is still "a personal adviser to the President." Although Acheson was listened to with great respect, he was rebutted with contentions that things have changed in the years since he was in office. The President has no "duty," said Acheson, "to tell the people about everything." "WASN'T INTIMIDATED" If Congress wants some information, he said, it should not "pick out some poor employee" for "bullying." All it need do, said Acheson, is write to the Secretary of State or other Cabinet officer. "My own practice was always to come myself . . . I wasn't intimidated by senators." When Acheson was told that "the record is replete" with refusals and delays, he replied, at first, "I can't believe it." "The method that you suggest to get information has not been very fruitful," said Sen. Ervin, gently. This is "the nub of the difference," said Sen. Charles McC Mathias Jr. (R-Md). It is "not because Henry Kissinger sits in the White House. but because there has been a very real change in the attitude and the day-today dealings between the Executive and the Legislature." There have been "changes on both sides," interjected Acheson. COURT ACTION URGED "But the fact is," said Mathias, "that a gulf that did not exist in your time... does exist today . . . in detriment to the United States." Acheson countered, "I don't believe this can be cured by law. . . it can be cured only by people." Congress should press the issue to a conclusion in court, said another witness, Raoul Berger, a senior fellow at Harvard University, author of a basic study on "Executive Privilege vs. Congressional Inquiry." In April 1957, said Berger, William P. Rogers, then Attorney General and now Secretary of State, raised "extraordinary untenable claims" that the courts have held that the President and department heads have "an uncontrolled discretion to withhold" information. "No gentleman's approach . . . is going to settle this," said Berger, and Congress should not be in "the position of a beggar" of information. Agreement that "no court has addressed the precise issue" of "executive privilege" came from Robert F. Keller, U.S. Deputy Comptroller General, who supported the pending bill. He said that his congressional watchdog agency, the General Accounting Office, has encountered repeated "frustrations and delays" in carrying out its statutory duties, despite President Nixon's 1969 order "to comply to the fullest extent possible with congressional requests for information." [From the Washington Post, July 30, 1971] HILL UNIT BLOCKS AID BILL, DEMANDS DATA The Senate Foreign Relations Committee disclosed yesterday that it has voted 15 to 0 to hold up the entire $3.3 billion foreign aid bill, in a move directed against the withholding of information by the Executive Branch. The committee served notice on Defense Secretary Melvin R. Laird to force him to turn over a copy of his department's five-year plan for foreign military assistance. Under a section of a 1961 law, funds can be denied for 35 days either until documents requested are produced, or else the President certifies his reasons for withholding them. Going beyond the immediate issue at stake, the broad scope of the committee's indignation was spelled out in a July 28 letter to Laird from Chairman J. W. Fulbright (D-Ark.): "In view of the fact that the document requested involves all countries receiving military aid, the committee is of the view that under this provision funds for the entire military assistance program shall be suspended 35 days from this date until one of the conditions specified is met. The committee has decided to defer further action on foreign aid legislation until this matter has been resolved." The 15 to 0 vote on the committee included Senate Republican Leader Hugh Scott (Pa.), Senate Democratic Leader Mike Mansfield (Mont.), and the Senate's senior Republican, George D. Aiken (Vt.). Only ailing Sen. Karl E. Mundt (R-S.D.) did not vote. "This has been building for years," said a committee source, referring to the rebellious mood. While the action in this case was directed at the Defense Department, Senate sources said the committee was "using the tools it has available to it on the whole withholding of information problem." A Senate Judiciary Subcommittee on Separation of Powers, headed by Sam J. Ervin (D-N.C.), is now holding hearings challenging the use of "executive privilege" to withhold information. Ervin said Tuesday that current practices "reflect a certain contempt for congressional requests for information. . . ." Before the subcommittee, Fulbright has proposed legislation to require across the board what his committee now has voted to do in the case of foreign aid: ". . . funds will be cut off from the agency concerned until either the information is provided or executive privilege invoked." Former Secretary of State Dean Rusk yesterday was among other former government officials testifying before the Ervin subcommittee who have acknowledged a need to provide more information to Congress. But he cautioned against legislation that could lead to executive-legislative "confrontation." The Fulbright committee, since May 21, 1969, has sought what is described as an "internal planning document" for military assistance. The Nixon administration's $3.3 billion foreign aid request includes $705 million for foreign military aid grants. Fulbright wrote to Laird that on April 30 and July 12, this year, "I wrote . . . and asked that either the document be furnished or that the President formally invoke executive privilege as a reason to withhold it. There has been no substantive reply to either letter." "I had hoped," Fulbright continued, "that, in the interests of better relations between the Congress and the Executive Branch, your department would be more cooperative and not force the committee to use the authority under Section 634 (c) of the Foreign Assistance Act of 1961. Under the circumstances, you have left the committee no alternative." Senate aides said that the last time they recalled a somewhat similar provision of law being invoked to produce a document was in 1960, by a House committee. President Eisenhower denied the document in question concerning Iran. The Defense Department had no immediate comment yesterday on the new development. Before the Ervin subcommittee yesterday, Rusk-making his first appearance before a congressional committee since he left the State Department in January, 1969, acknowledged that the classification of information is "exaggerated and abused in the Executive Branch of government." But Rusk, who had many confrontations with the Fulbright committee, said, "I thoroughly disagree with the spirit" of proposing any legislation based on an "antagonistic relationship" between Congress and the Executive. "This government is likely to freeze up almost overnight if we start down that track," said Rusk. He and William P. Bundy, who served as an Assistant Secretary of State for Far Eastern Affairs under Rusk, both suggested establishment of a consultative committee between the two branches of government, to improve the information flow. Bundy also agreed that "the Congress needs much more information than it now receives in the field of foreign affairs." But Rusk and Bundy both testified that on a subject as sensitive as the recent trip to Peking by national Security adviser Henry A. Kissinger, the President is entitled to "hold back." Former Ambassador W. Averell Harriman also cited "the duty" of the President to withhold some information from Congress if necesary to avoid impairing his functions, but said Congress "is entitled to more information than it has received," especially on Vietnam. In addition, Harriman said, "Dr. Kissinger at a minimum is assuming some of the responsibilities of the Secretary of State . . . and I think it would be appropriate for Congress to have the benefit of his testimony." Rusk, in his testimony, reiterated his recent public assertions, since disclosure of the Pentagon Papers, that President Johnson "did not have plans" at the time of the Gulf of Tonkin attack of August 1964, "to expand the war," despite assessments to that effect in the Pentagon review. "There was no deception at that time," Rusk repeated, in answer to questions from Sen. Charles McC. Mathias Jr. (R-Md.). "It was true that there were contingency plans," said Rusk, but there are "hundreds" of such plans that never are used. [From the Washington Post, July 31, 1971] THE BALANCE OF POWERS Former President Lyndon B. Johnson once had personal opportunity to draw a comparison between the power of American and Soviet leaders. The contrast bears on the current struggle in Congress to curb the President's warmaking powers, and to pry information out of the Executive Branch. The Soviet Union is not known to be having similar problems. Mr. Johnson told associates after his Glassboro summit meeting with Soviet Premier Alexi N. Kosygin in 1967 that he was particularly struck by one quality of the talks. Mr. Johnson, the leader of "the world's greatest democracy," could make decisions, commitments, on his own. Kosygin, speaking for the Soviet "dictatorship," could not. Kosygin could only refer proposals back to the Communist Politburo-for collective decision. The paradox was not lost on President Johnson. The Nixon administration was put on notice this week that the rebellious mood in Congress over the Executive Branch's broad powers is more than a flash of summer lightning. The sharpest bolt came from a source the administration is most inclined to dismiss out of hand: the dovish-dominated Senate Foreign Relations Committee, headed by Sen. J. W. Fulbright (D-Ark.). But this time the committee's challenge to the Executive Branch came in a unanimous 15 to 0 vote, including leading Republicans, and the uprising was no isolated phenomenon. Across Capitol Hill, across party lines, and across dove and hawk lines, there is a rising tide of revolt against a generation of lopsided Executive Branch domination of the issues of war and peace. The specific issue raised by Foreign Relations Committee is essentially symbolic: a vote to cut off foreign military assistance funds unless the De fense Department within 35 days (1) produces its Five Year Plan for military aid programming, which has been requested and denied since 1969, or (2) the President certifies his reason for refusing to produce it. Either course can be followed by the administration without great strain; the document itself is not monumental. It is a symbol of what many congressmen regard as a cat-and-mouse game that the administration is playing with Congress, which now is smouldering over the inequality of power between the Executive and Legislative branches of government. "Abuse" of Executive power and the past, admitted, supineness of Congress, were twin themes in hearings this week before the Foreign Relations Committee on bills to reapportion war powers, and hearings on "executive privilege" before a Senate Judiciary Subcommittee on Separation of Powers, headed by Sen. Sam J. Ervin (D-N.C.). None of the bills pending in the Senate would actually prevent a President from deciding tomorrow that an over-riding national emergency warrants launching nuclear missiles. The current proposals would only put brakes on non-emergency, prolonged use of U.S. armed forces abroad, essentially to prevent a slide into protracted warfare. The objective is to create a climate of legislative inhibitions on presidential warmaking powers. At least equally important, many senators believe, is the need for day-today access for Congress to Executive Branch plans, intentions, assessments. Even aggrieved Senate Republican Leader Hugh Scott protested Tuesday that current Executive secrecy has reached "the point of suffocation and isolation." There were many warnings this week that Congress must not push its demands to "extremes" or the government will "freeze up." But many Congressmen protest, and some administration officials privately agree, that it is the Nixon administration itself which seems to prefer a style of extreme combativeness-toward Congress, toward the press, even toward many Republicans who would be its allies. [From the Evening Star, Washington, D.C., July 30, 1971] POINT OF VIEW-A UNITED FRONT FOR EXECUTIVE SECRECY The only way Congress is going to get a peek at the secret papers of the Executive department, it seems, is for Daniel Ellsberg to capture another batch and publish them in the New York Times. Two unrepentant veterans of the Kennedy-Johnson State Department stoutly defended the president's right to keep Congress in the dark before Sen. Sam Ervin's subcommittee on the Separation of Powers, which is engaged in what looks like a futile effort to persuade the White House to tell Capitol Hill what is going on before bombs are dropped and nations invaded. Former Under-Secretary William P. Bundy and former Secretary of State Dean Rusk presented a united front for executive secrecy, past and present. If either of them has read the Pentagon papers-Bundy is a conspicuous contributer he gave not the slightest sign. If either of them has changed his mind about the war or his part in it, he chose to make no public confession. In fact, Bundy, brother of McGeorge, son-in-law of Dean Acheson, an exsecretary of State whose contempt for Congress is celebrated, made it plain he had not come to apologize, but to patronize. It was a rather breathtaking exhibition of figure-skating on ice that has so recently fallen through. NO PROTEST The committee made no protest as Bundy informed Congress that if it wanted more information-and he graciously conceded it does not get enough— it had better straighten up. If Congress were to establish some procedure whereby it would promise not to tell, if Congress would "focus on the end actions rather than on the process and the personalities," it might deserve to have some better idea of what is going on. Nobody questioned him about his most striking entry in the Pentagon papers, No. 84, written on November 5, 1964 at the time of Lyndon Johnson's 68-287-71-41 triumph as the "peace" candidate. In it he outlined "a maximum use of the Gulf of Tonkin rationale for action that would show toughness and hold the line 'til we can decide the big issue, or as a basis for starting a clear course of action under the broad options." In it Bundy demonstrates the disposition to manipulate the Congress like Play-Do, which the subcommittee is supposedly trying to correct. "Congress should be consulted before any major action, perhaps only by notification . . . or preferably by careful talks. Query If it should be ... combined with other topics (budget?) to lessen the heat." "Only by notification" was the course decided upon, in secret, and “only by notification" is the tradition followed by the Nixon administration. Not being called upon to explain anything, Bundy boldly pressed on to suggest "in all bluntness," as he said before every bureaucratic remedy that Congress would do well to cultivate assistant secretaries. "Senators might considerably benefit if they were able to establish relations at the assistant-secretary level," he observed. One wonders what would have happened if Sen. Fulbright had sought out Bundy, during those years when Bundy was writing the grand memoes about "getting solid performance out of the government of South Vietnam"? Would Bundy have assigned an assistant to brief him? The trouble in the Nixon State Department is that even the secretary does not know what is going on. All great affairs especially "Journeys for Peace," are in the hands of Henry Kissinger. So the advice seemed as irrelevant as the rest of his testimony. Dean Rusk, who followed Bundy to the stand, suggested that senators go ask the Secretary of State about the China trip if they are so curious. The only mention of the undeclared unpleasantness in which the pair had been so deeply involved was made by Sen. Charles Mathias, R-Md., who politely inquired of Rusk if he felt that "Congress was advised as fully as it should have been with respect to the circumstances involving the episode and the intention of the Executive branch to utilize the powers in that resolution? RUSK DEFENDS LBJ The imperturable Rusk, now a teacher at the University of Georgia, puts his broad shoulder to the familiar wheel of defending Lyndon Johnson and all his works. There were "hundreds of hundreds of contingency plans," and the President had "no plans" to widen the war in August 1964. And as proof, Rusk said Johnson "had not done so with ground troops until nearly a year laterand the air war, a month later." "I would say, sir," he concluded contentedly, "there was no deception at that time." Rusk had nothing to blush for in the Pentagon papers. He is not a writing man. Not a syllable with his name appears except on a joint report with Robert S. McNamara. As for Bundy, his style and substance, are being amply recognized by the foreign-policy establishment. He is slated to become editor of the Foreign Affairs Quarterly, where presumably Congress can read how to make itself worthy to find out what assistant secretaries of State see fit to tell them. [From the Washington Post, July 20, 1971] SECRETS OF THE BUREAUCRACIES (By Morton Mintz) "I am from Missoula, Montana, and I have been in Washington doing research on pollution for a Ph.D. dissertation in history," Donald MacMillan said in a letter to Sen. Lee Metcalf (D-Mont.) the other day. "At the National Archives I was advised that I could not use anything that was stamped 'Bureau of Investigation.' The period I was interested in was essentially the first decade of the twentieth century. I feel ridiculous even suggesting that the Nation's security could be threatened by information seventy years passed, but apparently somebody does. . . . If we cannot have an honest and rigorous search for the truth our future as a self-governing democracy is indeed bleak." |