The reasonableness of the general policy statements on Defense information could hardly be criticized, but complaints were beginning to be heard about a tightening of curbs on speeches by military officers and about the difficulty of access to personnel at the Pentagon.
The Navy Times, a private publication, commented:
“Americans generally ought to be having some misgivings over the current trend at the Pentagon. There’s an air of secrecy, of censorship, of arbitrary rulings.”
The Defense Department toyed with the idea of invoking “executive privilege” when two committees of Congress initiated investigations of shipments of strategic materials to various Iron Curtain countries. The Internal Security Subcommittee of the Senate and a House Select Committee on Export Control were embarking on a repetition of the East-West trade investigations that Robert Kennedy, then a committee lawyer, had directed five years earlier. As Attorney General, Robert Kennedy advised against the use of “executive privilege.”
Despite assurances that the Kennedy administration would not claim “executive privilege,” Chairman Porter Hardy wanted the law to state that reports of the Inspector General and Comptroller on foreign-aid administration would be made available to Congress and the General Accounting Office (GAO) auditors. Promises were fine, but Chairman Hardy wanted a firm law to bolster his subcommittee’s authority to obtain records on foreign-aid spending.
Hardy’s amendment to the foreign-aid legislation of 1961 provided that if the Inspector General and Comptroller failed to make information available to Congress and the GAO auditors, their funds would be cut off by GAO. The House gave the amendment overwhelming support.
The Senate, however—with support from the Kennedy administration—emasculated the Hardy amendment by adding what Representative George Meader described as the “Presidential escape clause.” This clause provided that the Executive can avoid furnishing information on foreign-aid expenditures upon a “certification by the President that he has forbidden the furnishing thereof pursuant to such request and his reason for so doing.”
Representatives Hardy and Meader remembered the experience with a similar escape clause that was attached to the foreign-aid legislation of 1959. It had enabled President Eisenhower simply to sign a certification in order to bar Senate and House investigators from every key record they sought dealing with mismanagement of the foreign-aid program. The proof of the weakness of a law with such an escape clause had caused the Congress to pass the tight Hardy amendment in 1960. Although President Eisenhower defied the specific intent of the Hardy amendment by hiding the Peru foreign-aid records, the 1960 provisions had been considered strong enough for a court test if Eisenhower had remained in office.
The Kennedy administration’s support of the “Presidential escape clause” in the 1961 legislation was a bad omen to Representative Meader.
“The effect of the Presidential escape clause ...” he said, “is to weaken existing law and to diminish the power the Congress enjoyed during [the last year of] the Eisenhower administration to obtain information from the Executive of foreign aid expenditures.