MacMillan's astonished discovery that he could not have access to-it bears repeating-files on pollution seven decades old serves to make a point which, quite understandably, drew scant attention in the recent momentous struggle over the Pentagon Papers. The point is that secrecy seems to be endemic in all bureaucracies-not just those occupied with national security-and it is manifested, almost always, against the very public supposedly being served; this happens readily and pervaisely even when no justification in military security or foreign relations is so much as claimed.

The evidence of this, regrettably, is as easy to come by in the "open administration" of President Nixon as it ever was in those of his predecessors. Here are some examples:

The Walsh-Healy Act empowers the Department of Labor to make federal contractors comply with the job-safety standards it has approved. The department had traditionally refused to make public inspection reports and notices of violation. It claimed that the Freedom of Information Act, enacted to protect "the public's right to know," somehow authorized secrecy and that publicity would discourage employer cooperation with department inspectors. Ralph Nader's Center for the Study of Responsive Law challenged the department in court. Last January, U.S. District Judge John Lewis Smith ruled for the Center.

The Department of Agriculture's Consumer and Marketing Service routinely had suppressed records on meat and poultry products it detains on the suspicion that they are adulterated, unwholesome or unfit for human consumption, as well as the warning letters it sends to packers suspected of doing business in two or more states (packers doing business exclusively within a single state are immune from federal inspection of meat and poultry products).

In 1969, the department denied access to the records and letters to a consumer of meat and poultry products, Harrison Wellford, an associate of the Nader Center. Under the Freedom of Information Act, the records were an exempt "Investigatory file," the department said. In the case of the letters, it argued, their release would deter packers from cooperating.

Wellford sued in Baltimore, where U.S. District Judge Edward S. Northrop ruled for him. The department appealed. In May, the U.S. Court of Appeals in Richmond upheld Judge Northrop, ruling that the purpose of the information law was not to increase administrative efficiency, "but to guarantee the public's right to know how government is discharging its duty to protect the public interest." (In apposing a consumer's effort to find out how well the government may be protecting the public from unwholesome meat, it may be said in passing, the Agriculture Department behaved much like those city health departments, including Washington's, that withhold the identity of restaurants that violate sanitary regulations from those who eat in them.)

The Department of Commerce has a National Industrial Pollution Control Council, which President Nixon created by Executive Order, Last October, the Council, meeting at Commerce, refused to admit representatives of 10 environmental and consumer groups, and refused to give give them a transcript of the proceeding. This year, to escape such groups, the Council met in the New State Department Building, where security regulations prohibit entry of any visitor who has not made special arrangements. Larry Jobe, an Assistant Secretary of Commerce, argues that the department could not get industry representatives to serve if public-interest groups were to be represented and if the Council's meeting were to be open to the public.

At the Civil Aeronautics Board, Chairman Secor D. Browne last year appointed an Advisory Committee on Finance and named as chairman James P. Mitchell, a vice president of the Chase Manhattan Bank who has primary responsibility for financial dealings with airlines. At the organizational meeting, held in Mitchell's office, the committee decided that all meetings "would be closed to the press and the public" and that a verbatim transcript "was not necessary to the conduct of business."

Within the Department of Health, Education and Welfare, the agency with an unexcelled disposition toward secrecy is the Food and Drug Administration. For example, when the FDA summons a company to a hearing to show cause why it should not be prosecuted for a law violation, the agency closes the hearing and refuses to release the transcript or disclose the reccommendation made by hearing officers. A decade ago, FDA was not only

refusing to turn over to Congress files on an anti-cholesterol drug that caused cataracts in thousands of patients, but actually tried to have written into the law a prohibition against releasing most any information it acquired under the Food, Drug, and Cosmetic Act.

The White House, to suppress information, has invoked the "Executive Privilege" with such frequency down through the years that Clark Mollenhoff once wrote an angry book about it. Currently, the endless blanket of "Executive privilege" lies atop a report by the White House Office of Science and Technology that is understood to predict serious environmental damage to the United States should supersonic transports ever be permitted fly across it at supersonic speeds.

Congress now and then pries valuable supressed information out of agencies, but it must be noted that, by calculation of Congressional Quarterly, 41 per cent of all congressional committee meetings were held behind closed doors last year, an increase of 5 percentage points over 1969.

In his letter to Senator Metcalf, Donald MacMillan said, "As I approached the National Archives for the first time I was struck by the noble and inspiring ideas inscribed in its concrete walls. One I recall was most impressive: "The heritage of the past is the seed that brings forth the harvest of the future.'

A future substantially freer of governmental secrecy than is the present is not beyond our grasp. We may yet achieve the "deep sense of pride" that President Johnson spoke of when, on July 4, 1966, he signed the Freedom of Information Act in the belief "that the United States is an open society in which the people's right to know is cherished and guarded." One reason for a cautious optimism is that the lawsuits won by the Center for Study of Responsive Law, against the Labor and Agriculture Departments, indicate a willingness in the courts to come down on the side of openess.

In the FDA, a new general counsel, Peter Barton Hutt, takes over on September 1. Rather than cling to the secrecy orientation of the past, maybe he and others in federal agencies will heed the instruction of Attorney General Ramsey Clark when he announced the rules to implement the law, only four years ago: "that disclosure be the general rule, not the exception," and "that there be a change in government policy and attitude."

And Congress would take a major step forward by enacting at least two pending bills: one for an independent consumer protection agency empowered to intervene in administrative and court proceedings in behalf of the public (and against federal agencies, if need be), the other, sponsored by Senator Metcalf, to open the proceedings of the possibly 1,800 government advisory committees such as the Commerce Department's and the CAB's-to public scrutiny.

[From the Miami Herald, July 30, 1971]

SENATE COMMITTEE HOLDS UP FOREIGN AID BILL OVER SECRECY Washington-The Senate Foreign Relations Committee disclosed Thursday that it has voted, 15-0, 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 the president certifies his reason 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 Committee Chairman J. William 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 Senate Judiciary Subcommittee on Separation of Powers headed by Sen. 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 that committee, 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 Thursday 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 plannning document" for military assistance. The Nixon Administration's $3.3-billion foreign aid request includes $705 million for foreign military aid grants.

Before the Ervin subcommittee Thursday, Rusk-making his first appearance before a congressional committee since he left the State Department in January 1969-acknowledged that 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 branch.

"This government is likely to freeze up almost overnight if we start down that track," Rusk said. He and William P. Bundy, who served as an assistant Secretary of State for Far Eastern affairs under Rusk, suggested the 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 testified that on a subjective as sensitive as the recent trip to Peking by national security adviser Henry A. Kissinger, the President is entitled to "hold back."

[From the National Observer, Aug. 2, 1971]

FULBRIGHT PANEL SETS DEADLINE FOR NIXON TO GIVE DATA ON ARMS AID

Chairman J. W. Fulbright and his Senate Foreign Relations Committee have decided to stop complaining that the Nixon Administration has been unreasonably withholding information from them. The committee voted 15 to 0 last week to take direct action.

Unless the Pentagon by Sept. 2 turns over to the committee a copy of its five-year program for foreign-military assistance-which it so far has refused to do--President Nixon would be put on a spot. By its unanimous vote, the committee invoked a seldom-used provision of a 1961 law. It stipulates that when documents relating to foreign aid are requested, the executive branch has 15 days to deliver them or to invoke executive privilege, with the President spelling out his reasons for doing so. Otherwise, the entire foreign military-assistance program will be automatically suspended.

Mr. Nixon, of course, could decide to invoke executive privilege. This likely would heighten conflict with the committee over foreign-policy prerogatives. The Fulbright panel-Republicans as well as Democrats-voted to hold up the entire $3.3 billion foreign-aid bill until it sees what action the President takes.

The concept of executive privilege is also being challenged in hearings of the Senate Judiciary Subcommittee on Separation of Powers. Chairman Sam Ervin, Jr., North Carolina Democrat, believes current Government practices "reflect a certain contempt for congressional requests for information." The subcommittee is considering legislation that would make the law invoked last week by the Fulbright Committee apply to all agencies of the Federal Government, not only the foreign-aid program.

In testimony before the Ervin subcommittee, former Secretary of State Dean Rusk cautioned against legislation of this kind. "This Government is likely to freeze up almost overnight if we start down that track." he said.

[From the Morning Sun, Baltimore, Md., July 28, 1971]

FULBRIGHT WOULD BAR FUNDS TO UNITS BALKING CONGRESS

(By Gene Oishi)

Washington.-Senator J. William Fulbright (D., Ark.) said yesterday that he will introduce legislation to cut off the funds of any executive branch agency that refuses to provide information to Congress unless the President personally prohibits its release.

The proposed new sanction, Mr. Fulbright said, will be offered as an amendment to a bill he has already introduced. It would require any employee of the executive branch to appear before congressional committees when asked to. The Fulbright bill is currently before the Senate subcommittee on the separation of powers, and both its chairman, Senator Sam J. Ervin, Jr. (D., N.C.) and Senator Charles McC. Mathias (R., Md.), the ranking minority member, expressed general support for Mr. Fulbright's proposals.

Senator Mathias wondered aloud whether Congres had "the guts" to cut off the funds of offending agencies, but then added that unless Congress was prepared to use the power of the purse to exact the information it needed from the executive branch it might as well "go out of business."

VALIDITY QUESTIONED

Presiding over a hearing on the Fulbright bill, Senator Ervin questioned the validity of the concept of "executive privilege" to withhold information even when invoked by the President.

But he noted that lesser officials of the executive branch have also withheld information on such grounds as it would take too long to prepare, the release of the information would be "inappropriate," or that "no useful purpose would be served."

Another tactic, Mr. Ervin said, was to delay submission of the information requested until it was no longer pertinent, or to place security classifications on the information supplied “precluding any meaningful use of the data." Senator William V. Roth, Jr., (R., Del.) said in a prepared statement that the Office of Economic Opportunity refused to give him a copy of its telephone directory because it was "confidential."

Mr. Fulbright, in his testimony, asserted that the principle of "executive privilege" is not a legal or constitutional right, but "simply a custom, a survival of the royalist principle that the King can do no wrong."

The Fulbright bill would not challenge the concept of executive privilege but would require any employee of the executive branch to appear, if summoned, before any congressional committee, and he would not be able to assert executive privilege unless he has a written statement, signed personally by the President, that he has been instructed to do so.

The amendment, which Senator Fulbright intends to offer later this week, would require all agencies to provide any information requested by congressional committees within 60 days unless the President invoked executive privilege.

If the information has not been provided or if the President has not invoked executive privilege within 60 days, all funds for the agency involved would be cut off.

KISSINGER REFUSAL

The main example Mr. Fulbright gave was the refusal of Henry A. Kissinger, the White House national security adviser, to appear before the Senate Foreign Relations Committee of which Senator Fulbright is chairman.

Mr. Fulbright invited Dr. Kissinger in June, 1969, to appear "informally" and in executive session to discuss the administration's foreign policy. Without using the words executive privilege, Dr. Kissinger declined, citing the "tradition that has been established" for persons on the President's personal staff.

While he did not question the President's right to have confidential and personal advisers, Mr. Fulbright said, Dr. Kissinger presides over a new "super-bureau," with 54 "substantive officers" and a total staff of 140.

As such, Mr. Fulbright said, Dr. Kissinger is more than a personal adviser and should be accountable to Congress.

[From the Sheboygan Press, Sheboygan, Wis., Aug. 24, 1971]

TOO MUCH SECRECY

Recent congressional testimony indicates that about 38,000 persons in three government agencies have the power to wield the classification stamp. These persons are in the Department of State, Department of Defense, and the Atomic Energy Commission. They have about 22 million classified documents in their files which they have stamped either top secret, secret, or confidential. The publication of the Pentagon Papers in June has unloosed vigorous protest against what has been called a network of concealment based on a handful of laws, presidential directives, and customs. On the one end is the Espionage Act which provides criminal penalties for unauthorized transfer of documents damaging to national security. On the other is executive privilege, which some critics of secrecy refer to as a doctrine enabling presidents and members of their staffs to duck questions from Congress. Senator Fulbright of Arkansas calls it a custom, not a law.

Congressional Quarterly quotes William Florence, a retired Pentagon classification expert, as saying that only about one-half of one percent of the classified documents deserve to be withheld from the public. Senator Sam J. Ervin Jr. of North Carolina added support to this view a few weeks ago when he said that "through the use of the devices of secrecy, the government attains the power to manage the news and use it to manipulate public opinion." He contended that such government power is not consonant with a nation of free men and must be curtailed.

Since publication of the Pentagon papers, Senator Ervin has held hearings on executive privilege, a House committee has held hearings on the entire secrecy system, and the White House has announced that it is conducting a review of the classification system. Furthermore, proposals have been submitted for congressional approval of the appointment of commissions to study or regulate the classification procedures.

One of the difficulties in bringing about reforms is that Congress also participates in secrecy practices. Congressional committees, for instance, conduct about 40 percent of the hearings in private and sometimes do not even release transcripts of the hearings. Committee votes frequently are withheld. A statement made last June by General Maxwell Taylor, former chairman of the Joint Chiefs of Staff and former ambassador of South Vietnam, probably explains some of the reasoning behind the practice of secrecy. Congressional Quarterly quotes him as saying:

"A citizen should know those things he needs to know to be a good citizen and discharge his functions . . . not to get in on secrets which simply damage his government and indirectly damage the citizen himself."

The weakness in this reasoning is that a lot of self-appointed "czars" lack any trust in the public. There are others who like to exert their authority at every opportunity. Then, there are those who, in case of doubt, take what they regard as the safe course-put the secrecy stamp on the document in question.

Admittedly, secrecy is required in certain instances to protect the country's security, but to classify 22 million documents as secret is simply ridiculous.

LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, FOREIGN AFFAIRS

DIVISION

CONGRESSIONAL ACCESS TO EXECUTIVE INFORMATION

(A Bibliography with Emphasis on the Problems of Executive Privilege and Security Classification)

I. Books and Articles

Berger, Raoul. Executive privilege vs. congressional inquiry. UCLA law review v. 12, no. 4. May 1965: 1044-1364.

Bishop, Joseph W., Jr. The executive's right of privacy: an unresolved constitutional question. Yale law journal v. 66, February 1957: 477-491. Classifying, de-classifying of papers. Affidavit of George McClain, presented in open session in U.S. District Court. Washington post, June 22, 1971: All.