As for the enemy within, by 1950 or thereabouts, the Communist Party was completely neutralized. In outward appearance it still existed, but, as much as anything, merely as a device maintained by the U.S. Government to trap the unwary. Lest they fall to the enemy.
This was the awful dilemma of the Cold War. To preserve an open society it was deemed necessary to take measures that in significant ways closed it down. A culture of secrecy evolved. There were two components, by now familiar ones: the enemy abroad, the enemy within. In both cases the United States Government over-responded; in neither can it be overly blamed. The Soviet Union was by now developing nuclear and missile capacity very much on its own, allowing for contributions from former German scientists. (A resource both sides shared.) It is not clear that espionage yielded any significant gains after Los Alamos. The Soviets continued a large-scale espionage offensive, but there were no major successes. A fairly steady yield of random information; nothing of coherent consequence.
Indeed, the terms of trade, if that image may be used concerning the "product," had quite reversed since the 1940s. It was the Soviets who were now forced to deal with an "enemy within." Marxism was a belief system which could evoke intense attachment. Of a sudden it failed. Judgments vary, but it is probably the case that Mikhail A. Suslov, who served as a member of the Politburo, almost continuously, from 1952 until he died in 1982, 108 was the last member of the Politburo to have studied Marx and Lenin and adhered to their world view.
Now came bureaucracy, disillusion, dissent, defectors. Most conspicuously, in 1967, Joseph Stalin's daughter Svetlana fled the U.S.S.R. This reached the highest levels. In 1975, as an example, Arkady N. Shevchenko, Under Secretary-General for Political and Security Council Affairs of the United Nations, a Soviet diplomat on the short list of possible successors to Foreign Minister Andrei A. Gromyko, defected to the United States and remained under cover for some years before Moscow sensed that something was wrong, evidently narrowing the suspects to Shevchenko, Oleg Troyanovsky, Ambassador to the United Nations, or Anatoly Dobrynin, the Soviet Ambassador in Washington. By now no one was beyond suspicion.109
But first, the United States had to live through the aftermath of the Soviet espionage that had crested at Los Alamos. Several laws were enacted, the most important of which was the Atomic Energy Act of 1946. In August 1945, the U.S. Government had released a history of the Manhattan Project, entitled A General Account of the Development of Methods of Using Atomic Energy for Military Purposes Under the Auspices of the United States Government, 1940- 1945, commonly known as the Smyth Report (for the Princeton University physics professor who had been asked by General Leslie R. Groves, head of the Manhattan Project, to write the report). The Smyth Report said that most of the information on the development of the atomic bomb could be obtained from unclassified sources, but nothing would do. The Atomic Energy Act introduced the principle that certain information was "born classified," meaning no action need be taken in order for that information to be deemed secret.
This was by now a pattern of governance, and indeed, remains so. Government regulation expanded greatly in scope with the New Deal, as the Roosevelt administration responded to the crisis of the economic depression. During the 1930s, opponents of Roosevelt's New Deal programs grew increasingly concerned about the scope of Executive Branch discretion. For example, in 1938 Roscoe Pound, Chairman of the American Bar Association's Special Committee on Administrative Law and former Dean of Harvard Law School, denounced the trend of turning "the administration of justice over to administrative absolutism . . . a Marxian idea." In response to the growing criticism, as well as to calls for greater openness in government as a means for assuring fairness in proceedings,110 President Roosevelt in 1939 asked Attorney General Homer Cummings to organize a committee to study existing administrative procedures and make recommendations for reform.
The Attorney General's Committee on Administrative Procedure, chaired by Dean Acheson, submitted a final report in 1941. Following the War, its efforts, coupled with extensive hearings in the Senate Judiciary Committee, resulted in enactment of the Administrative Procedure Act (APA) of 1946, which is premised on the idea that agencies should be required to keep the public informed of their organization, procedures, and rules; the public should be able to participate in the rulemaking process; there should be uniform standards for formal rulemaking and adjudicatory proceedings; and judicial review should be available in appropriate circumstances. Taken together with the Freedom of Information Act (FOIA)--an amendment to the Administrative Procedure Act which was enacted in 1966 and strengthened in 1974, 1986, and again last year--its ultimate intent was to foster more open government through various procedural requirements and by doing so to promote greater accountability in decisionmaking.
As enacted, the APA recognized few exceptions to the standard of crafting a more open government, but an important one was set out in Section 3 of the 1946 statute: "(1) any function of the United States requiring secrecy in the public interest." (This provision later was to be modified as part of the FOIA.) Then Attorney General Tom Clark interpreted this exception to the APA's public information provision in his 1947 "Manual on the Administrative Procedure Act," as follows:
By its terms, the APA's procedural requirements for both rulemaking and adjudication do not apply "to the extent that there is involved a military or foreign affairs function of the United States." This very broad "walling off" in 1946 of the military and foreign affairs areas was consistent with the language of the U.S. Supreme Court ten years before in the seminal case of United States v. Curtiss-Wright Export Corp., where the Court supported a sweeping range of Executive Branch discretion in the conduct of foreign affairs:
As one scholar has noted, the dichotomy between domestic regulation and foreign affairs functions could not have been clearer. "Even in 1936, during the only era in which delegation of authority in the domestic area was being found unconstitutional, the Court was prepared, in most generous terms, to grant the Executive great latitude in foreign affairs."112
The encounter with espionage, some of it involving U.S. Government employees, even military personnel, led inevitably to the matter of loyalty. Years of civil service reform had been designed to remove party affiliation, as the term was, from considerations of government employment. In 1939, however, the Hatch Act prohibited Federal employees from "membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States."113 In March 1948, the celebrated Attorney General's List was first promulgated. Some 71 organizations and eleven schools which were viewed as "adjuncts of the Communist Party" were listed as in some way "subversive," although no effort was made to define just what that might be. The regulation, duly published in the Federal Register, was at pains to state that "it is entirely possible that many persons belonging to such organizations may be loyal to the United States. . . ." As will be seen below, the striking aspect of the listing is the prominence of Japanese and German organizations, some years now after the end of the Second World War. Some of the listings seem doubtful. Sakura Kai--veterans of the Russo-Japanese War? The Dante Alighieri Society? For that matter, the Ku Klux Klan. But also, well-established Communist-front organizations.
From proscribing organizations as subversive, it was a short step to querying government employees as to membership. In 1947, President Truman, by executive order, directed that Federal employment be denied where "there is a reasonable doubt as to the loyalty of the person involved."
President Truman's Executive Order, and President Eisenhower's Order that followed three years later and remains the cornerstone of today's personnel security system, can only be understood in their historical context. Although, as described above, Woodrow Wilson's Executive Order of April 7, 1917 had introduced the concept of "loyalty" as a condition of government service for the first time, the Hatch Act had marked the first statutory initiative in this regard. (Previously, under the Pendleton Act of 1883 and the Lloyd-LaFollette Act of 1912, civil service investigations had focused on issues of general character for government employment.114 The Federal Government's employment policies centered on the need to maintain a trustworthy and efficient civil service--based on the core principle of "suitability" for Federal employment, defined in the 1883 statute as "a requirement or requirements for government employment having reference to a person's character, reputation, trustworthiness, and fitness as related to the efficiency of the service."115 Today, all government employees still must meet a standard of "suitability" that tracks the original 1883 definition; those requiring access to national security information must also be found to be "security eligible" as defined in the Eisenhower Order 10450--an additional requirement that has led to a fair amount of duplication and delay.)
The Hatch Act in turn was implemented through Civil Service Commission regulations in 1940 that were modified in 1942 to read: "Do you advocate or have you ever advocated, or are you now or have you ever been a member of any organization that advocates the overthrow of the Government of the United States by force or violence?"116 In 1942, President Roosevelt also issued War Service Regulation II, which denied a civil service examination or appointment to anyone whose loyalty was in "reasonable doubt." This was used by the Civil Service Commission to deny Federal employment to a wide variety of individuals, ranging from members of the Communist Party to those associated with the German Bund and other alleged Fascist causes. Other wartime regulations gave the Secretaries of War and the Navy the authority to summarily remove employees considered risks to national security; after the War, this authority was extended to the Department of State and other departments. And in 1944, the Civil Service Commission established a Loyalty Rating Board to handle cases referred by regional Commission offices involving "derogatory information" concerning loyalty issues.
Even so, during World War II the standards and procedures in conducting a loyalty program still were not uniform across the Government; the development of such a program throughout the Executive Branch was left to the Truman administration following the War.117 In March 1947 President Truman issued Executive Order 9835, establishing the Federal Employee Loyalty Program, providing uniform investigation standards and procedures, and authorizing the creation of Loyalty Review Boards across the Government. Despite the wartime regulations, "personnel security" still largely was a new discipline. The Atomic Energy Act of 1946 had mandated a security program for the newly-established Atomic Energy Commission and had directed the FBI to investigate and report on an individual's "character, associations, and loyalty," and in 1950 Congress had empowered certain agency heads to suspend employees summarily as security risks. Nevertheless, most Federal agencies still did not subject their employees to any formal system of security screening. Lt. Gen. Leslie R. Groves, who had served in the U.S. Army for 32 years and had directed the Los Alamos Project, put it succinctly when he testified in the spring of 1954 before the AEC board reviewing the suspension of Robert Oppenheimer's security clearance: "The Army as a whole didn't deal with matters of security until after the atomic bomb burst on the world because it was the first time that the Army really knew there was such a thing." A combination of the Bomb's impact and the growing fears about Communist and related threats to internal security led to a new "demi-jurisprudence" of security clearance procedures.118
The Truman Order--based on the findings of an interdepartmental committee established in 1946--made "loyalty" a concern across the Federal Government. The approach generally proved popular, though a cross-section of legal scholars and other academics did criticize the lack of procedural safeguards and the lack of clear standards for making decisions concerning prospec-tive and current government employees. (For example, several Harvard law professors, including Zechariah Chafee, Jr., who had spoken out against Attorney General Palmer nearly three decades before, and Erwin Griswold published a critique of the Order in April 1947 under the heading "The Loyalty Order--Procedure Termed Inadequate and Defects Pointed Out.")119
The Truman Order in turn was superseded by President Eisenhower's issuance of Executive Order 10450 in April, 1953, which provided that "[t]he appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to an investigation," and made each agency head responsible for ensuring that "the employment and retention in employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of the national security."120 While abolishing the loyalty program of the Truman Order (including the Loyalty Review Boards within the Civil Service Commission), which had been criticized as both ineffective and inefficient,121 the new Order also made clear that "the interests of national security require that all persons privileged to be employed in the departments and agencies of the Government, shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States."122 (Emphasis added.)
In this manner, a broader "security" program--subsuming loyalty as one key criterion--was established across the Government. The political pressure to establish a broader program had increased with the passage of legislation in 1950 "[t]o protect the national security of the United States by permitting the summary suspension of employment of civilian officers and employees of various departments and agencies. . . ."123 In addition, beginning in March 1948, the Attorney General's List was published on a regular basis--with members of organizations included on such a list to be denied employment in the Federal government or defense industries as well as the right to a U.S. passport. During the 1952 presidential campaign, Dwight Eisenhower promised to root out Communists and other security risks from government and defense industry employment-- suggesting that their presence had been tolerated too easily by the Truman administration despite the existence of rules to address "loyalty" concerns. Then, on February 2, 1953, in his first State of the Union address, President Eisenhower promised a new system "for keeping out the disloyal and the dangerous." Executive Order 10450 followed within three months. Senator Joseph McCarthy (who attended the signing ceremony at the invitation of the administration) praised the new Order: "Altogether, it represents a pretty darn good program. I like it."124 The New York Times reported the following day: "The new [personnel security] program will require a new investigation of many thousands of employees previously investigated, as well as many more thousands who have had no security check."125
Concerns about personnel security heightened further in the months that followed issuance of the Order. In early November 1953, Attorney General Herbert Brownell would allege in a speech that President Truman had nominated a Soviet spy--senior Treasury Department official Harry Dexter White--to serve as the U.S. Executive Director of the International Monetary Fund, despite what Brownell said was the President's awareness of White's involvement in Soviet espionage. And on December 3, 1953, President Eisenhower directed that a "blank wall be placed between Dr. [J. Robert] Oppenheimer and secret data"--marking the beginning of the process that led to the Atomic Energy Commission's suspension of Oppenheimer's security clearance later in December and its 4-to-1 decision on June 28, 1954, against restoring the clearance.
Thus, the personnel security system that remains in place to this day (notwithstanding a fair amount of tinkering to ensure greater due process protections and the like) developed against the background of these deep concerns about loyalty and ideological associations. In 1956, Edward Shils captured the essence of the system:
Below, we return to the issue of whether a system founded on such an assumption still is a sensible structure as we approach a new millennium.
The concept of loyalty necessarily involved the notion of secrecy. Disloyal employees revealed secrets; loyal employees would not. In such a setting apprehension rose, and so did the dimension of secrecy. More and more matters became classified. In about the timeframe that concern was raised by public regulations involving, in the main, domestic activities, there now appeared a concern about this newest form of regulation, classified secrets concerning foreign affairs.
There is, indeed, a considerable symmetry. Roscoe Pound and Erwin Griswold of Harvard took to the law review journals around 1935. Twenty years later, two equally distinguished constitutionalists, Senators John C. Stennis of Mississippi and Hubert H. Humphrey of Minnesota, on January 18, 1955, introduced S. J. Res. 21, an Act to establish the Commission on Government Security (which became Public Law 304, 84th Congress). In a floor statement, Senator Humphrey de-scribed the intent of the measure:
Nor is there any indication that the Executive branch has ever devoted itself to consideration of the total security problem. In the past, such action as has been taken in the name of security has been more a random, sporadic response to peril, rather than a carefully considered plan for defense against peril.127
After discussing particular problems in the administration of the personnel security system, the Senator continued:
President Truman's Executive Order [Executive Order 10290], and the more recent one by President Eisenhower [Executive Order 10501], bring considerable coordination and order out of the preexisting confusion, but there remains much that must be done before we can be sure our system makes sense and is truly effective. We still have multiple standards, some purely administrative and some statutory. I think a heavy burden of proof must rest upon those who would tell us that a single, uniform standard would not better serve the cause of security.
I wish to emphasize that the variable standards which are now applicable in the several agencies and departments of the Government defy the mind of man when it comes to bringing about any conformity, any uniformity, or any reasonable degree of fair application in a particular security case as it may go from one department to another.
We have not paused in our necessary, though frantic, quest for security to ask ourselves:
What can we effectively protect?
What specific measures will give us the degree of protection we want or need?
What price are we willing to pay for security?128
Having cited the duplication and contradiction among the "complex of Government security statutes, regulations, and procedures," the Senator then noted how limited Congressional involvement had been:
We encounter here (even in the Congress!) the bureaucratic desire for uniformity and predictability--" each of these actions has been taken sporadically and independently and not as part of a rational overall master plan"--but also and equally a concern for civil liberties, a fear of too much government with too few restraints. Loyd Wright, former President of the American Bar Association, was named Chairman of the Commission, with Senator Stennis as Vice Chairman, and they were in equally distinguished company. The spirit of the time may be seen from President Eisenhower's appointments, which included luminaries such as Franklin D. Murphy, then Chancellor of the University of Kansas, and James P. McGranery, who had served as Attorney General under President Truman. In one of the first passages of the 807-page Report of the Commission on Government Security, which appeared in June 1957, the situation and the assignment were set forth with succinct clarity:
As a result of congressional subcommittee hearings, which thoroughly reviewed and studied all phases of our security and loyalty programs, the Congress unanimously provided in Public Law 304, 84th Congress, as follows:
It is therefore, the policy of the Congress that there shall exist a sound Government program--
(a) establishing procedures for security investigation, evaluation, and, where necessary, adjudication of Government employees, and also appropriate security requirements, with respect to persons privately employed or occupied on work requiring access to national defense secrets or work affording significant opportunity for injury to national security;
(b) for vigorous enforcement of effective and realistic security laws and regulations, and
(c) for a careful, consistent, and efficient administration of this policy in a manner which will protect the national security and preserve basic American rights.130
The Commission accepted without demur "the broad Presidential supervisory and regulatory authority over the internal operations of the executive branch." In a word, no statute was required to maintain secrecy. "The Attorney General's list of proscribed organizations, or something similar to it, is essential. . . ." But the Commission "recommends a number of major changes to minimize possible abuses." This passage is taken from the Commission's Summary of Recommendations, as highlighted below:
The Commission's recommendations, if put into effect, would enhance the protection afforded national security while substantially increasing the protection of the individual.
The Commission recommends retention, with fundamental revisions, of the programs affecting Federal civilian and military personnel, industrial security, port security, employees of international organizations, the classification of documents, passport regulations, and the control of aliens. In addition, the Commission recommends an entirely new program to safeguard national security in the vital operations of our civil air transport system.
At the core of the Commission's plan for a uniform, comprehensive, and practical security mechanism is its recommendation for a Central Security Office to provide a continuous study of security needs and measures, conduct loyalty and security hearings, and furnish advisory decisions to heads of government departments and agencies.
And at the very basis of the Commission's thinking lies the separation of the loyalty problem from that of suitability and security. All loyalty cases are security cases, but the converse is not true. A man who talks too freely when in his cups, or a pervert who is vulnerable to blackmail, may both be security risks although both may be loyal Americans. The Commission recommends that as far as possible such cases be considered on a basis of suitability to safeguard the individual from an unjust stigma of disloyalty.
CENTRAL SECURITY OFFICE--The Commission recommends an independent Central Security Office in the executive branch of the Government. One of the principal deficiencies of past loyalty and security programs has been a shortage of trained, qualified personnel to administer them. Hence, the first duty of the director of the proposed central office would be to select eminently qualified personnel, including hearing examiners to conduct loyalty hearings under the Federal civilian employee program and security hearings under the industrial, atomic energy, port and civil air transport programs.
The various loyalty and security programs of the Government would be reviewed and inspected to insure uniformity of rules, regulations and procedures; however, the Central Security Office would not have authority to review secret or other files of any agency.
ATTORNEY GENERAL'S LIST--The Commission believes that the Attorney General's list of proscribed organizations, or something similar to it, is essential to the administration of the Federal loyalty and security programs. While it therefore recommends continuance of the list, the Commission also recommends a number of major changes to minimize possible abuses. The Commission recommends a statutory basis for the list and that future listings be authorized only after FBI investigation and an opportunity for the organization to be heard by examiners of the Central Security Office, with the right of appeal to the Central Review Board. Decisions of the examiners and the Central Review Board would be advisory to the Attorney General.
CONFRONTATION--The Commission recommends that confrontation and cross examination be extended to persons subject to loyalty investigations whenever it can be done without endangering the national security. Those whose livelihood and reputation may be affected by such loyalty investigations are entitled to fair hearings and to decisions which are neither capricious nor arbitrary. It is the prime duty of Government to preserve itself, and in the carrying out of this duty it has the indisputable obligation to avail itself of all information obtainable, including information from confidential sources. Full confrontation, therefore, would be obviously impossible without exposing the Government's counterintelligence operations and personnel with resulting paralysis of the Government's efforts to protect the national security.
FEDERAL CIVILIAN EMPLOYEES--The program recommended for civilian Government employees consists of a loyalty program applicable to all positions and a suitability program within the framework of civil service regulations. In the executive branch, the Commission would exclude the Central Intelligence Agency and the National Security Agency from the program.
MILITARY PERSONNEL--The Commission recommends that the standard and criteria for separation, for denial of enlistment, induction, appointment or recall to active duty in the Armed Forces, including the Coast Guard, should be that on all the available information there is a reasonable doubt as to loyalty.
DOCUMENT CLASSIFICATION--The changes recommended by the Commission in the present program for classification of documents and other material are of major importance. The most important change is that the Confidential classification be abolished. The Commission is convinced that retention of this classification serves no useful purpose which could not be covered by the Top Secret or Secret classification. Since the recommendation is not retroactive, it eliminates the immediate task of declassifying material now classified Confidential. The Commission also recommends abolition of the requirement for a personnel security check for access to documents or material classified Confidential. The danger inherent in such access is not significant and the present clearance requirements afford no real security-clearance check.
The report of the Commission stresses the dangers to national security that arise out of overclassification of information which retards scientific and technological progress, and thus tend to deprive the country of the lead time that results from the free exchange of ideas and information.
ATOMIC ENERGY--The Atomic Energy Commission is an employer of Federal civilian workers and also operates an industrial security program. In general, the Commission's recommendations are designed to bring both AEC's Federal civilian employee and its industrial security programs in line with the comprehensive programs planned for general application throughout the Government. INDUSTRIAL SECURITY--Uniformity of regulations, of procedures and their application, and of administration appeared as the needed goal of any reform of the present industrial security program. Therefore, the Commission recommends the establishment of a Central Security Office in the executive branch of the Government, as previously noted. With this arrangement, the hazards of consolidation of all industrial security programs into a single agency are avoided, but the benefits of a unified program will be available by means of a monitoring system exercised through such a central office.
To insure uniformity within the armed services with respect to the Department of Defense Industrial Security Programs, the Commission recommends establishment of an Office of Security within the Office of the Secretary of Defense. This office would integrate, control, and supervise the industrial security programs of the three services, thus eliminating duplicate clearances, investigations, finger-printing and repetitious execution of clearance applicant and related forms, and accomplishing a streamlined administrative pattern eliminating delay resulting from use of chain-of-command communications regarding security matters. Classification guides would be issued by such office, and close scrutiny maintained on the classification of materials contracted for by the services. Downgrading and declassification programs would be monitored from this office, as well as disposition of classified material upon completion of contracts.
Replacement of the present security standard by a more practical and positively worded one is recommended, namely, that clearance for access to classified material should be denied or revoked if it is determined on the basis of all available information that "access to classified information and materials will endanger the common defense and security." Also, ambiguous criteria relative to associations are omitted in the Commission's recommendation, and the test of refusal to testify at an authorized inquiry has been added.
PORT SECURITY--**** One of the problems which has arisen in the administration of the security program by the Coast Guard has been the failure to give an applicant for clearance adequate notice of the reasons for a denial of clearance. The Commission recommends that in the future the applicant be given specific and detailed notice to the extent that the interests of national security permit. The Commission recommends that standards and criteria for clearance in the Coast Guard be uniform with the standards in other major security programs. The Commission also recommends that hearings heretofore conducted by the Coast Guard be the responsibility in the future, of the Central Security Office. Compliance with this recommendation will promote uniformity in standards and procedure throughout the Government.
AIR TRANSPORT SECURITY--The Commission recommendations for a security program in civil air transport recognizes the need for initial Federal action at the industrywide level in this important field. At present, only the employees of CAA, CAB, or other Federal agencies involved in air transport are subject to the formal program, required under Executive Order 10450. The Commission has recommended, however, that only those employees actually in a position to do substantial damage should be included in the program.
INTERNATIONAL ORGANIZATIONS--The existing loyalty program for United States nationals employed by international organizations should be continued, but the standard should be broadened to include those who are security risks for reasons other than doubtful loyalty. The standard would be whether or not, on all the information, there is reasonable doubt as to the loyalty of the person to the Government of the United States or reasonable ground for believing the person might engage in subversive activities against the United States.
PASSPORT SECURITY--In the passport field, Congress should enact legislation defining the standards and criteria for a permanent passport security program. The procedures would continue to be defined by regulation.
IMMIGRATION AND NATIONALITY--The Commission recommends in the field of immigration and nationality that the functions of visa control, except for diplomatic and official visas, be transferred from the Department of State to the Department of Justice and that the Attorney General be authorized by law to maintain personnel abroad to carry out these functions.
NEW LEGISLATION--Two new substantive laws are recommended.
The first would penalize unlawful disclosures of classified information with knowledge of their classified character by persons outside as well as within the Government. In the past, only disclosures by Government employees have been punishable.
The second recommended legislation would make admissible in a court of law evidence of subversion obtained by wiretapping by authorized Government investigative agencies. Wiretapping would be permissible only by specific authorization of the Attorney General, and only in investigations of particular crimes affecting the security of the Nation.
Franklin D. Roosevelt's deal with Joseph Stalin at Yalta to bring the Ukraine and Bylo-Russia into the United Nations was classified "top secret." Elaborate efforts were made to conceal the arrangement. The late Bert Andrews, Washington correspondent of The New York Herald Tribune, found out about it.
He "willfully," even gleefully reported it, knowing full well that it was classified "top secret." Under the proposals of the Commission on Government Security, if law at the time, he would have been subject to a fine of $10,000 and five years in jail.
This newspaper also published the original plans of the United States, Britain, France and the Soviet Union on the formation of the United Nations. Again, they were marked "top secret" and the Federal Bureau of Investigation was called in to make an official investigation of the disclosure.
In this case, though the Government maintained that publication would block information of the United Nations, the main result was a long debate on the Big Five veto power and the assumption that the five major powers could agree on a post-war settlement. This, in turn, helped clarify the issue and contributed to some modifications of the Charter, but under the legislation now proposed by the Commission on Government Security, it would have been a clear case for criminal action.131
A certain innocence appears in a separate Statement by Chairman Wright, which is appended to the Commission Report. He asserts:
"The purveyor of information vital to national security, purloined by devious means. . . ." Purloined for good or ill, but predictably, classified information was by now routinely provided to journalists by officials, sometimes to enhance prestige with the press, sometimes to gain advantage in an internal dispute, sometimes to let the public know something the purveyor thought the public had a right to know.
The matter has never been quantified, but it is reasonable to assert that most "leaking" was coming from the higher reaches of the system. We have President John F. Kennedy's testament to the Ship of State as the only ship that leaks from the top! Sparingly, of course. As Max Frankel of the New York Times has observed, Presidents soon came to realize that "even harmless secrets were coins of power to be hoarded."133
It is beyond the range of an official report to speculate over much on the allure of secrecy, but this must never be discounted. The official with a secret feels powerful. And is. Some years after the report of the Commission on Government Security, the Committee on Government Operations of the House of Representatives would declare:
Which is very likely true, but not of necessity widely believed by those in authority, howsoever briefly.
The Commission on Government Security was clear-headed enough about the first attempts at press censorship and the hopelessness of it all--given the American press! Thus:
The advent of World War I brought the first organized approach to document classification as a means of general restriction on public access to information. Censorship policies for control of published information commenced on March 24, 1917, with the promulgation of regulations by the State, War, and Navy Departments. Newspapers were asked to adhere voluntarily. One of the regulations requested that "no information, reports, or rumors, attributing a policy to the government in any international situation, not authorized by the President or a member of the cabinet, be published without first consulting the Department of State."
On April 13, 1917, by Executive Order 2594, President Wilson created the Committee on Public Information, named George Creel as chairman, and World War I censorship formally got under way. Creel thought that censorship as practiced at that time was unworkable. He described the whole effort as of a piece with "the hysterical ‘shush-shushing' that warned against unguarded speech, just as though every citizen possessed some important military secret." He said, at the end of the War, that "virtually everything we asked the press not to print was seen or known by thousands." Creel believed the answer to be "secrecy at the source" through action by the military departments without depending upon press judgment.135
Even so, the Commission wandered into the inevitable ambiguity. If secrets matter, they must be kept. To keep secrets is to put in question principles more sacred than secrets.
The Commission's principal legislative proposal, a Central Security Office, might at first have appeared more promising. It fit well with public administration doctrine at this time, a time when the profession of public administration was looked to in such matters. It could well have been proposed by one of the several Hoover Commissions of the post-war period. A parallel to the Civil Service Commission that would establish uniform rules with "trained, qualified personnel to administer them."
But this, too, ran athwart the changed political culture of Washington. It was turning out that secrets were hard to keep secret. Organizations with the morale, incentives, and structure to hold things closely were increasingly disinclined to share, especially with organizations that were not. This is perhaps too generous. Secrets had become assets; organizations hoarded them, revealed them sparingly and in return for some consideration, and wanted no part of some Central Office busying itself with their internal affairs. This, of course, is conjecture, but for certain no Central Office emerged.136
To the contrary, far from centralizing, the dispersal of secrecy centers within the Government accelerated. The Federal Bureau of Investigation now began operations abroad, a necessary extension of its internal task of keeping abreast of domestic espionage and, from an organizational perspective, an opportunity of considerable import. Hence, "Operation SOLO."
Moishe Chilovsky was born in the Ukraine in 1902 of Jewish parents. His father was engaged in anti-Czarist activities and had been exiled to Siberia. He fled to the United States in 1910, and his family came the following year. As Morris Childs, the son became a charter member of the Communist Party of the United States of America. Following the expulsion of Jay Lovestone (born Jacob Liebstein in 1898 in Lithuania to Russian-Jewish parents), Childs became a Party official under Earl Browder; in 1929 he was sent to Moscow for further training. In 1934, he became a member of the Central Committee, and in 1945 he succeeded Budenz as managing editor of the Daily Worker. In 1947, he returned to Moscow, where he learned of Stalin's persecution of Jews and more generally of the repression there. In the early 1950s, he was "turned" by the FBI. In 1957, he became deputy head of the CPUSA and the primary contact with Soviet, Chinese, and other parties abroad, traveling regularly to Moscow and Peking. He led the U.S. delegation to the 21st Party Congress in Moscow in 1959. Reportedly a source of considerable information about Kremlin politics, and especially of Sino-Soviet tensions, his role as an American spy was kept entirely within the FBI until President Gerald R. Ford was informed in 1974. In 1987, Childs was awarded the National Security Medal by FBI Director Sessions, in a ceremony held in camera at FBI headquarters.
The Wright Commission was not the only evidence of a general stirring during the Eisenhower years over this new question of peacetime secrecy. The Truman administration had begun during the Second World War; had endured the shock of Soviet espionage and nuclear armament, the face of battle in Korea. The new President ended the war in Asia, and the nation settled into a normalcy, not without parallel in the 1950s to the Harding administration thirty years earlier. The new President was not in the least inclined to over much government, much less to intrusive government. Sectors of the citizenry, however, were even less so. The Commission on Government Security noted this:
In recognition of these attacks during the 84th Congress, the Special Subcommittee on Government Information of the House Committee on Government Operations held lengthy hearings under Congressman Moss to answer these complaints. These hearings and studies were the first major congressional effort to examine the document classification program.137
Nor was the Wright Commission the only entity examining government secrecy and the means of classifying information in the mid-1950s. The Eisenhower administration organized its own inquiry when, in August 1956, Secretary of Defense Charles E. Wilson established a five-member Committee on Classified Information, chaired by Charles A. Coolidge, a well-known attorney and a former Assistant Secretary of Defense. (The other four members were retired high-ranking military officers.) In his letter establishing the Committee, Secretary Wilson stated that he was "seriously concerned over the unauthorized disclosure of classified military information"; he called on the Committee to examine the adequacy of all laws and regulations on classification and the safeguarding of classified information, as well as the procedures utilized at the Defense Department in this area and the Department's ability to "fix responsibility" for unauthorized disclosure of classified information.
Three months after being established, the Coolidge Committee issued a report on November 8, 1956, containing 28 recommendations--ten covering overclassification, eleven covering different issues relating to unauthorized disclosures of information; and the remaining seven matters relating to Department policies vis-a-vis Congress, industry, and the press. The first recommendation-- based on a finding that Defense Department officials had a tendency to "play it safe" and classify too much--called for "a determined attack" on overclassification, "spearheaded by the responsible heads within the Department of Defense, from the Secretary of Defense down" and another called on senior officials to "throw back over-classified matter received from subordinates." The Committee also urged the Department to make clear that the classification system "is not to be used to protect information not affecting the national security, and specifically prohibits its use for administrative matters." However, the Committee did not propose any penalties or disciplinary action in cases of abuse of classification procedures, and when in July 1957 Secretary Wilson issued a new directive consolidating the rules governing the Department's classification procedures, it did not impose any procedures to address problems in this regard.
In addition to the commissions that were organized to examine the security classification system, in 1955 the House of Representatives created a Special Government Information Subcommittee of its Government Operations Committee. The backdrop to establishment of this Subcommittee was increasing concern on the part of some Members about the growth of postwar secrecy, including the Eisenhower administration's establishment in November 1954 of an Office of Strategic Information in the Commerce Department responsible for formulating policies concerning the production and distribution of "unclassified scientific, technical, industrial, and economic information, the indiscriminate release of which may be inimical to the defense interests of the United States."138
In 1953, Representative John E. Moss, a freshman Democrat on the House Post Office and Civil Service Committee, had raised the issue of public access to government information. Representative Moss had sought information from the Eisenhower administration's Civil Service Commission to verify its claim that 2,800 Federal employees had been fired for "security reasons;" he wanted to know whether these "security" reasons were based on allegations of disloyalty or espionage or instead matters that could also be grounds for discharge--such as a misstatement, even unintentionally, on a job application. The Commission refused to release the information and Representative Moss found that he had no other means to compel its release. Two years later, he urged the creation--and subsequently was made Chairman--of the Special Government Information Subcommittee, tasked with monitoring Executive Branch secrecy.
The Moss Subcommittee quickly undertook a lengthy inquiry (spanning the duration of the Coolidge Committee and Wright Commission) concerning the classification system's administration and operation and, more generally, the availability of information from agencies and departments. Among its chief concerns was the lack of any action against overclassification of information:
Aside from some attention to declassification of historical documents, however, the Subcommittee's recommendations--including those intended to provide disincentives for overclassification and to establish a security classification system based in statute--were "largely ignored" by the Executive Branch.140
The Moss Subcommittee did, however, remain at the forefront of legislative efforts to enhance public access to government information. It assumed the lead role, beginning in the mid-1950s, in focusing increased attention on how the security classification system related to the rights of Congress and the public to obtain information from the Executive Branch. This would lead, after eleven long years, to enactment in 1966 of the FOIA, establishing a statutory right of access by any person to Federal Government records unless the information falls into one of nine listed categories permitting it to be exempted from release.
Representative Moss first succeeded in 1958 in narrowing use of the 1789 "housekeeping" statute to withhold government information. In 1962, he helped persuade President Kennedy to narrow the use of "executive privilege" to deny the release of records. Finally, in 1965 Moss and Representative Donald Rumsfeld introduced legislation to establish a presumption that Executive Branch documents should be available to the public with only narrow exceptions and that judicial review should be available as a check on agency decisions to withhold information. By 1966, bipartisan support for the effort had grown, and it appeared that the issue of public access to information might even arise in the fall Congressional elections. The legislation passed the Senate first, and then the House in June. On July 4, 1966, President Johnson signed the FOIA into law (to go into effect exactly one year later, in order to give the Executive Branch sufficient time to prepare for its implementation).
Notable as that achievement was and remains, it did not much change the practices of the bureaucracy. In 1972, the House Foreign Operations and Government Information Subcommittee, now chaired by Representative William Moorhead of Pennsylvania, concluded after fourteen days of oversight hearings that "[t]he efficient operation of the Freedom of Information Act has been hindered by five years of foot dragging by the Federal bureaucracy." Agency procedures were deficient and employees untrained, large fees were charged to deter requests, responses were long delayed, and the exemption categories were being applied broadly to deny the release of information. So Congress responded again. With Representative Moorhead's leadership, the FOIA was amended substantially in 1974 (passing both chambers overwhelmingly following a Presidential veto) to fix some of these loopholes that the bureaucrats charged with implementing the law had discovered, and to strengthen several provisions of the statute.
Notwithstanding the accomplishments of Representatives Moss and Moorhead and their colleagues, an inevitable tension remains between the right of access prescribed in the FOIA and the authority of the Executive Branch to preserve certain secrets. Thus, the very first exception to the general FOIA principle of public access reads as follows:
This is not surprising; as noted, such matters had been treated differently in the original Administrative Procedure Act. The difference now was the availability of procedures, including use of the courts, to review bureaucrats' decisions to deny the release of information.142
From the onset of the atomic age there had been a tension between the defense establishment, as generally defined, and the science community over the nature of secrecy in science. From the time of the Smyth Report, and the arguments of Bethe and others as to the inevitability of the Soviets acquiring an H-Bomb, the level of irritation was not inconsiderable. The scientists said you could not hide nature from the Russians.
Now an argument arose about the disutility of trying to hide things from Americans. As noted earlier, the Wright Commission was on to this:
This aspect of the Wright Commission's report was echoed in a resounding fashion some thirteen years later by another group of eminent persons. In July 1970, a special Task Force on Secrecy, convened by the Defense Science Board and chaired by Dr. Frederick Seitz of Rockefeller University, issued its final report on the steps needed to address problems with the system for classifying scientific and technical information.144 Responding to questions from the Director of Defense Research and Engineering, the Task Force found first that it was unlikely that classified scientific and technical information would remain secure for as long as five years; more likely it would become known to others in as little as one year through both "independent discovery" and clandestine disclosure.145 The report went on to focus on the costs of classification, concluding that its effect in inhibiting the flow of information should be considered--and balanced against the benefits--in making classification decisions. After also finding that classifiers' attention should focus mainly on design and production-related matters (such as information on specific manufacturing techniques that might reveal operational plans), as opposed to basic research and "early exploratory" development, the Task Force concluded that, overall, the amount of scientific and technical information classified could be reduced by as much as 90 percent through the exercise of greater care concerning both the scope and duration of classification.
Finally, in its most telling passage, the Seitz Task Force wrote that "more might be gained than lost" if the United States adopted "unilaterally, if necessary--a policy of complete openness in all areas of information." (Recognizing, however, that this proposal was not practical in light of prevailing views on classification, it instead recommended adopting a "rigid schedule" for automatic declassification, with a general period of one to five years, subject to exemptions for specified categories.) That nothing subsequently came of this final recommendation speaks more to the "culture" being confronted by the Seitz Task Force and other such entities than the wisdom of the finding--one endorsed by a cross-section of the nation's leading thinkers on scientific and technology issues.
The apogee of absurdity as regards secrecy came in 1971 when the Nixon administration undertook to enjoin the publication by the New York Times and, subsequently, the Washington Post, of a history of the Vietnam War compiled in the Department of Defense, and soon known as the Pentagon Papers. In June 1996, on the occasion of the 25th anniversary of that seminal event, Max Frankel of the Times recalled what had transpired:
As Harold Edgar and Benno C. Schmidt, Jr. state the matter in their comprehensive analysis of the espionage laws in the Columbia Law Review (written against the backdrop of the Pentagon Papers litigation), the Government found that there was literally "no law" to prevent publication. The problem, as Edgar and Schmidt make clear in their masterful survey, can be traced to the time of creation--1917--when Woodrow Wilson failed in his efforts to achieve a sweeping ban on publication of defense information. The U.S. espionage laws are, in their words, "in many respects incomprehensible," with the result being that "[w]e have lived since World War I in a state of benign indeterminacy about the rules of law governing defense secrets."147
The uncertainties surrounding the legislative intent of the 1917 Act (as well as of its most significant amendment, in 1950)148 were to have significant consequences more than half a century later. Edgar and Schmidt note that "[n]o prosecution premised on publication has ever been brought under the espionage laws," and that the abandoned prosecution of Daniel Ellsberg and his colleague Anthony Russo for unlawful retention of defense information "was the first effort to apply the espionage statutes to conduct preparatory to publication."149 As noted, in October 1984, Samuel Loring Morison, a civilian analyst with the office of Naval Intelligence, was arrested for supplying a classified photograph of a Soviet nuclear-powered carrier under construction to Jane's Defence Weekly--which subsequently published the photo. In October 1985, Morison became the first person convicted under the 1917 Espionage Act for an unauthorized disclosure of classi-fied defense information to the press. His conviction was upheld in 1988 and the Supreme Court declined to hear the case.
The Morison prosecution remains unique; no other individual has been prosecuted since on such grounds. While the core provisions of the espionage laws have been used with some degree of frequency to prosecute government and defense contractor employees for actual or attempted communication of national defense information to a foreign agent, as well as conspiracies toward that end (thus reaching the conduct of notorious spies such as Aldrich Ames),150 the laws have proven virtually useless in addressing the more mundane problem of "leaks." And when a body, such as the Wright Commission, has proposed "rectifying" this by broadening the laws' reach beyond the classic case where defense information is provided to foreign spies to also cover unauthorized communications between a government official and the press, it has provoked hostile reaction based on concerns about the impact on free speech and efforts to publicize government misconduct or mismanagement.
Thus, a system persists in which the series of executive orders--beginning with Truman's--on security classification carefully instruct government employees not to transfer classified information to any outsiders not authorized to receive it (the U.S. media obviously included), but the system of criminal sanctions designed to back that instruction up proves to be a "paper tiger." Indeed, most of the executive orders on national security information issued in succession since 1951 do not even refer to the espionage laws. And, as in the case of the Commission on Govern-ment Security's proposal, Congress is not willing to make unauthorized disclosure of classified information an action subject to criminal sanctions without consideration of the intent of the communicator. Thus, as a former Assistant General Counsel of the CIA concluded (in an unpublished paper cited by Edgar and Schmidt):
Of course, this was not the only legacy of the Pentagon Papers case. The effort to prosecute journalists for publishing the materials also revealed the deep-seated differences in perspectives concerning the breadth of appropriate classification. Erwin N. Griswold, who had been President Nixon's Solicitor General at the time of the Pentagon Papers case and therefore had the thankless task of preparing and arguing the Government's case before the Supreme Court, summed it up well nearly two decades later:
It quickly becomes apparent to any person who has considerable experience with classified material that there is massive over-classification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.152
108 Suslov joined the Politburo (then called the Presidium) in October 1952, but left in 1953 after Stalin's death. He rejoined it in 1955 and remained a member until his death on 25 January 1982.
109 Daniel Patrick Moynihan, A Dangerous Place (Boston: Little, Brown and Company, 1978), ix-x.
110 Erwin Griswold, "Government in Ignorance of the Law -- A Plea for Better Publication of Executive Legislation," Harvard Law Review 48 (1934): 198. Griswold argued that administrative regulations "equivalent to law" had become important in the ordering of everyday life and criticized the fact that such rules were not published and thus not available to the public. The next year, Congress enacted the Federal Register Act of 1935, Statutes at Large 49 (1935): 500.
111 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
112 Richard Frank, "Enforcing the Public's Right to Openness in the Foreign Affairs Decision-Making Process," Secrecy and Foreign Policy, eds. Thomas Franck and Edward Weisband (New York: Oxford Univ. Press, 1974), 272-73.
113 Statutes at Large 53 (1953): 1148.
114 The 1912 Act provided that a government employee could not be removed except for such cause as would promote the efficiency of the civil service. It also established specific procedures for notification of any charges against an employee and responses to such charges.
115 Statutes at Large 22 (1883): 403.
116 Commission on Government Security, Report of the Commission on Government Security (Washington, D.C.: Government Printing Office, 1957), 3-6; Eleanor Bontecou, The Federal Loyalty-Security Program (Westport: Greenwood Press, 1953), 14.
117 Report of the Commission on Government Security, 6.
118 Harold Green, "The Oppenheimer Case: A Study in the Abuse of Law," Bulletin of the Atomic Scientists (September 1977): 12, 61.
119 The critique was published in the New York Times, 13 April 1947; see Bontecou, Federal Loyalty-Security Program, 30-31.
120 President, Executive Order 10450, "Security Requirements for Government Employees," Federal Register 18, no. 82 (29 April 1953): 2489.
121 Attempting to respond to the criticism, President Truman had amended his Executive Order in July 1951, lowering the standard of proof for disloyalty: "The standard for the refusal of employment or the removal from employment in an Executive department or agency on grounds relating to loyalty shall be that on all the evidence, there is reasonable doubt as to the loyalty of the person involved." (Emphasis added.) Executive Order 10241, Federal Register 16, no. 84 (1 May 1951): 3690. Then, in 1952, the President convened a committee with the objective of merging the "loyalty, security, and suitability programs, thus eliminating the overlap, duplication, and confusion which apparently now exist." (Harry S Truman, letter to the Chairman of the Civil Service Commission, 8 August 1952.) But the often-partisan attacks on his loyalty program persisted, and a single, unified program for reviewing applicants for government positions and existing employees never was established -- even after the Wright Commission in 1957 criticized the Eisenhower structure as an "unnatural blend" and a "hybrid product . . . neither fish nor fowl, resulting in inconclusive adjudications, bewildered security personnel, employee fear and unrest, and general public criticism." Report of the Commission on Government Security, 44.
122 Under Executive Order 10450, the scope of the investigation varies based on the degree of adverse impact (if any) on national security that the individual could cause by virtue of his or her position.
123 Statutes at Large 64 (1950): 476.
124 Anthony Leviero, "New Security Plan Issued; Thousands Face Re-Inquiry," New York Times, 28 April 1953, 1.
125 Ibid., 20.
126 Shils, Torment, 213-14. Shils went on to offer a strong critique of the system: This seems a narrow and doctrinaire conception of the motives of treasonable conduct. It is this narrow doctrinairism which makes the present system so inefficient, even though it may well be fairly effective. Although it might catch a few potential spies, it hurts many innocent persons. The resources marshaled against the potential spy are usually almost equally dangerous to the innocent....
127 Congressional Record, 84th Cong, 1st sess., 18 January 1955, 463-64.
130 Report of the Commission on Government Security, xiii-xiv.
131 James Reston, "Security vs. Freedom: An Analysis of the Controversy Stirred By Recommendation to Curb Information," New York Times, 25 June 1957, 17.
132 Report of the Commission on Government Security, 688.
133 Max Frankel, "Top Secret," New York Times Magazine (16 June 1996): 20.
134 House Committee on Government Operations, Availability of Information From Federal Departments and Agencies, 86th Cong., 2d sess., 1960, House Rept. 86-2084, 36.
135 Report of the Commission on Government Security, 153.
136 In an even-tempered, respectful dissent to the proposal for a new, centralized security structure, former Attorney General McGranery wrote:
There is no substitute for sound administrative procedures and the exercise of commonsense. The time has come for emphasis to be placed on the spirit of the law.
It would have been refreshing, indeed, if the Commission had seen fit to submit a final report correcting existing procedures and practices without finding it necessary to enlarge and complicate the Government structure while adding no guarantee of increased effectiveness. What is needed is a correction in those existing procedures which fail to achieve Government security with minimum delay and maximum protection of the civil rights of the loyal employee. What is needed is the will to make corrected procedures work. There is no assurance that a new agency would be perfect. It is necessary to hold mistakes of judgment to a minimum and, once having occurred, then fix responsibility and seek to avoid their recurrence. This can best be done by holding accountable those officials and agencies having the primary responsibility.
There can be no doubt that there is a need for uniformity in security procedures but there
is also a need to preserve the responsibility of the departments and agencies for the
proper administration of the security program. (Ibid., 799.)
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