Had the Eisenhower administration’s doctrine of “executive privilege” prevailed at that time, a total secrecy blanket could have been thrown around the Defense Department, the Joint Chiefs of Staff, and the White House. There would have been no way of determining the facts leading up to the decision, except as the President found it convenient to reveal them.
How much better it was for all concerned that the MacArthur firing was carefully examined and that the public was apprised of all the material facts.
2 Congress should enact special laws to cover the specific areas in which withholding of records is deemed necessary to the public good. There are now laws that provide for withholding of federal income tax information from the public, and from all committees of Congress except certain ones with supervisory jurisdiction over the Internal Revenue Service. Laws have been enacted providing for withholding of Defense information that involves national security. Other areas—FBI reports, patent secrets, business reports, or personnel files—could be covered by special legislation of a similar nature, but modified to meet the requirements of the area in which the withholding is needed.
3 Congress should provide stiff criminal penalties for use against government officials who withhold information from properly authorized committees of Congress or the GAO. This legislation should also provide the mechanism for prosecution to be initiated by the Congress or the GAO. Such a mechanism is necessary to avoid the situation wherein an Attorney General, advocate for the President and appointed by the President, simply refuses to enforce the law or gives patently false legal opinions to avoid enforcement.
4 The Congress should establish an effective means for systematic review of papers carrying national security classifications of “confidential,” “secret,” or “top secret.” Or the President could establish a small committee to spot-check, review, and challenge questionable use of national security classifications. However the review group is set up, its members should be selected from outside the military field, and they should be persons with a strong and responsible interest in open government. They should have authority to challenge arbitrary or questionable security classifications and authority to obtain explanations from all persons with a role in questionable classifications.
This review group should not have the power to change classifications, only the power to recommend changes. It should have the authority, however, to file reports with Congress, with department heads, and with the President that could be made public. Such reports should identify individuals engaged in arbitrary or questionable overclassification, as well as those responsible for failing to take steps to declassify.
Only through the establishment of these checks on executive secrecy can the public be assured that laws are administered in the way that the Congress intended them to be. Only in this way can the public be certain that the laws are not twisted or disregarded by an arbitrary bureaucracy operating in secret.
And what about checks upon possible abuses by the investigating committees of Congress? There are many. The courts offer some of the most effective. Rulings in recent years have put limitations on the power of an investigating committee. The committee must be properly authorized by the House or Senate, with a specific authority, and it must operate within the scope of that authority. The courts will not uphold a contempt citation if a committee of Congress is operating outside its proper authority, or if the questions asked are not pertinent to the inquiry. Recent rulings have held that the committee chairman must also explain to the witness the reasons why the questions are pertinent and necessary to carry out the legislative function.
In addition to these legal limitations, committees of Congress are held in check by their own bipartisanship and the fact that they usually operate in the public view. The members of the committees nearly always represent a cross section of the Congress, everything from extreme liberals to extreme conservatives with many gradations between. This representation assures a spokesman for almost every point of view. It also assures cross examination of witnesses in most cases, for minority counsel is normally provided to help minority members bring out facts that the majority may choose to overlook or minimize.