“4. Any possible presidential immunity from the enforcement of legal process does not extend to the heads of departments and other Federal agencies. Judicial opinions have never recognized any inherent right in the heads of Federal agencies to withhold information from the courts. The courts have stated that even where the head of the department or agency bases his action on statutory authority the courts will judge the reasonableness of the action in the same light as any other claim of privilege. The courts have held that the mere claim of privilege is not enough.
“5. There is no inherent right on the part of heads of the departments or other Federal agencies to withhold information from the Congress any more than they have a right to withhold information from the Judiciary....”
Before the McClellan subcommittee on the Senate side completed its report, a number of voices had been raised in defense of the Eisenhower administration’s secrecy. But they did not seem to be strong voices. Only Senator Karl E. Mundt, the South Dakota Republican, and George H. Bender, the Ohio Republican, signed a minority report on the East-West trade investigation.
Senator Mundt and Senator Bender charged that the report of the five-member majority “is entirely misleading as to the effectiveness of international control of strategic materials.” Although Chairman McClellan had consistently indicated a willingness to take testimony or records in a closed session if a problem of real national security was involved, Mundt and Bender defended the Eisenhower administration’s refusal to make information available on grounds that to testify might help the Communists.
“To make some of this information available in public session would tell the Communist nations about our strategic and short supply, reason for control and decontrol,” the Mundt-Bender report stated. “We would publicize for the benefit of potential enemies the thoughts, recommendations, advice and working papers of subordinates who worked for those in the executive branch who held and exercised action responsibility.”
In years past, Senator Mundt had been highly critical of the secrecy of the Truman administration. Now, however, he said he wished to “disassociate myself from that conclusion” by Senator McClellan that secrecy is being used to cover up “errors, inefficiency and bad judgment.”
“I think at the moment it is purely a political deduction,” Senator Mundt said.
Hardly anyone took Senator Bender’s position seriously for he was generally regarded as a political buffoon. To discredit his support of the Eisenhower administration’s secrecy, the majority report merely quoted from two speeches that Bender had made as a House member in October 1951.
In October 1951, when the shoe had been on the other foot, Bender rose on two occasions to castigate the Truman administration for a censorship of government information.