KEEPING SECRETS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80-01601R000300340071-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 9, 2016
• Document Release Date: January 8, 2001
• Sequence Number: 71
• Publication Date: September 18, 1971
• Content Type: MAGAZINE

Approve
Ti114' NEW IMPUTZIC
For Release 20614/15ffirtif1381A"-AP80-01601R0
Keepirit
,,Deart s
STATI NTL
The President refused, August 31, to give Senator Fulbright's For-
eign Relations Committee a copy of the Pentagon's five-year foreign
military assistance plan, citing "executive privilege" as his reason.
Two days later it was reported, and then partially confirmed in Sec-
retary Rogers' press conference, that news leaks out of the State De-
.partment were being investigated with lie-detector tests given to
"high-ranking" department officials. These two incidents may have
been totally unrelated, and their timing fortuitous. Or they may rep-
resent a deliberate tightening on all fronts of the administration's
treatment of "official secrets," maybe even a considered response to
the Supreme Court's Pentagon Papers decision.
The Court's ruling. that no judicial decree may constitutionally pre-
vent the puhlitation of a news story or copy of a government docu-
ment leaked to the press can be taken as teaching the virtue of. self-
reliance.. The Court said,. in essence, that under existing statutes once
a. government secret is out, the First Amendment makes it public
property arid forbids its censorship or suppression. So the sole line
of defense for official secrets is control by the executive departments
of their own personnel and confidential material.
Hard-nosed investigation of State Department leaks is plainly one
way of deterring unwanted disclosures. Secretary Rogers - appar-
ently .tutored by the. opinions of some Supreme Court Justices who
indicated, in lengthy aside, that they saw no constitutional diffi-
Culty in after-the-fact criminal prosecutions of those who disclosed
top-secret information - asked reporters, at his press conference,
with shocked innocence, "Is there anything wrong with investigating
a crime when it occurs?" It seems that a New York Times article in ?
Mid-July had given details of secret bargaining positions taken by
U.S negotiators at the SALT talks, and, according to the sbcretary,
several executive departments then applied for an FBI investigation
:to find out whether a, crime was committed and who committed it."
Oche Espionage Act of 1917 used to indict Daniel Ellsberg and
much cited in the Pentagon Papers case - makes 'it a crime to disclose
defense informatior which could be used "to the injury of the United
States.") Mr.. Roger's announced that he was satisfied from- the re-
Sults that, there had been no violation, but the first Times story on
.the FBI's 'efforts reported, signifiearitly;_that previously available State.
Department officials had recently .,taken to not an-
swering newnien's telephone calls.
Could Mr. Rogers - a former attorney general and
'lawyer with a successful private practice - really have
.been unaware that the prospect of a visit from an
.FBI agent carrying a polygraph machine would make a
foreign service officer reluctant to chat With a re-
porter even on subjects whose disclosure is not.. re-
motely criminal? Brandishing the threat of criminal
investigation and prosecution over the heads of the
, foreign service -.a group never noted for independ-
ence or. daring - equals in subtlety the administration's
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recent promise to discharge any HEW or Justice De-
partment bureaucrat who shows excessive zeal in fa-
vor of busing for school desegregation. Granting, as
one must, that strong internal controls are needed to
guard secret foreign-policy and defense information,
there are plainly more suitable methods for achieving
the goal than the FBI's heavy knock on the door.
The claim of privilege made to the Senate Foreign
Relations Committee can be faulted for the same
reason: it goes beyond what good judgment war-
rants. "Executive privilege" has always been a legal
talisman of last resort for the federal executive depart-
ments. It has .been much discussed in theory and has
often been tossed in as an alternate ground for a de-
partment's refusal to produce documents which it has
a host of other legal reasons for keeping to itself. It
? has seldom, if ever, been relied upon as exclusively
?and unashamedly as. it was by Mr. Nixon in August.
There are many colors to the cloak of "executive
privilege," and some have very respectable and ancieht
historical antecedents. In the 1807 trial of Aaron Burr,
President Jefferson responded to a subpoena issued by
Chief Justice John Marshall (who was sitting as the
trial judge) and sought exemption for documents rela-
ting to "mere executive proceedings" involving diplo-
matic relations with Spain and France. The request
was allowed because "secrets of state" had been recog-
nized as a proper subject of confidentiality. And, as
applied to foreign-policy or defense secrets, there have
been later judicial decisions ? including one by the
upretne Court in 1953 ;- which have upheld claims
Of "execu,tiv,e privilege." The courts have even per-
mitted the executive to 'decide on its own ? Without
review by any court ? whether .disclosure would harm
the public interest. (Interestingly enough, Robert H.
Jackson who, as attorney general, ruled in 1941 that
this was a decision which the executive was to make
on its own, voted on the Supreme Court, in dissent,
that a judge should review the documents and decide
whether privilige was properly claimed.)
There has not, though, been any court tet of the
availability of "execytiVe privilege" in response to the
request of a congressional committee. But on the
theory that the separation of powers provided by the
Constitution gives the executive the smile rights vis-
a-vis the Congress as it has in relation to the judiciary,
past- administrations have assumed that the court de-
cisions apply to congressional requests.
One obvious difference, however, is that the same
secrecy Justifications do not apply to the Congress.
Officials of executive departments engaged in foreign
policy and military affairs regularly participate in ex-
ecutive sessions with congressional committees in
which secret information is discussed. And Senator
Fulbright was quick to point out, in answer to the
President's privilege claim, that his committee had re-
quested the information strictly on a "confidential
basis." Maybe this is Why the President's memoran-
dum explaining the reliance upon executive privilege
did not emphasize ? as o'ne might have expected ? the
sensitive nature of long-range plans for foreign mili-
tary assistance. Rather, a relied on. the least sustain-
able ground for invoking the privilege ? that the :pa-
pers were only "internal working documents" and that
"privacy of preliminary exchange of views betWeen
personnel of the executive branch" is necessary .'"for
the successful administration of government."
The proposition that civil servants need "privacy"
in order to exchange ideas is as old as bureaucracy
itself, and it has been written into various laws, in-
cluding the 1966 Freedom of Information Act. Specifi-
cally exempted from that act's general principle that
department records must be accessible to the public
are "inter-agency or intra-agency memorandums or
letters which would not be available by law." Even
assuming that there is generally more social utility in
keeping internal governmental memoranda ecret
than in subjecting them to public scrutiny ? a con-
clusion which cannot be lightly reached in view of the
revelations of the Pentagon Papers ? there is a plain
difference between what ought to be disclosed when.
any curious member of .the public asks *and what must
be disclosed in answer, to a judicial subpoena or con-
gressional demand. The effect of the President's use of
executive privilege to protect internal memoranda is
to elevate a generally useful rule-of-thumb, Which
Congress has occasionally approved, to an uncondi-
tional constitutional option of refusal, exercisable en-
tirely at the will of the executive.
This is the broadest reach of executive privilege,
and represents a position on secrecy that the Supreme
Court refitsed to accept in its, 1953 decision. If ap-
plied across-the-board it would mean that an executive
department could refuse to disclose any paper in its
files to a court or to Congress, no matter how nonsen-
sitive the subject and how remote the possibility of
any public harm from disclosure. It would make the
privilege a sanctuary for embarrassed public officials
and keep them from ultiinate accountability for their
conduct while in office. Patrick Henry gave the, most
eloquent rebuttal to this claim almost 200 years ago:
"To cover with the veil of secrecy the commcin routine
of business, is an abomination in the eyes of every in-
telligent man and every friend to his country."
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ITASIIINGTON POS'i!?
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. STATINT
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The Central Intelligenee
-Agency bas been eavesdrop-
?ping, incredibly, on the most
private conversations of
Kremlin and other world lead-
. , ers.
For obvious security I'm
-
sons, we can't give a clue as to
how it's done. But we can
tState c.ategonically that, for
years the CIA has been able
to listen to the kingpins of the
'Kremlin banter, bicker and
:backbite among themselves.
- A competent source, ' with
access to the transcripts of the
;private Kremlin convex:3a-
tons, tells vs tluit the Soviet
ileaders gossip about ono an-
other and complain about their
ailments like old.maids.
t It is evident from the con-
versations that Leonid Bruin.
l'-nev, the party chief, some-
' times drinks too _ much vodka
and suffers from hangovers.
Premier Kosygin, however, is
in poor health, ? and his com-
plaints are more authentic,
I One of their favorite pas-
times is, visiting a private
clinic to get their aches
'soothed. Like fat capitalists at
the end of a hard day in their
? plush . suites, the Kremlin
chiefs stop by for steam baths,
:rubdowns and other physical
-therapy.
Brezhnev, in a typical con-
versation, might grump about
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his back pains end announce
he's going to have Olga give
him a massage. "Olga Oh bol?
President Nikolai Podgoeity
might chortle, as if he is quite
familiar with the masseuse,
IP".?%.4.4 am? Up
Like the Kremlin crowd, the
Red Chinese leaders are far
less forbidding in private than
they appear to the world. The
mightly, Mao Tse-tung, his en-
nointed successor Lin Place
and Premier Chou En-let are
tired, old revolutionaries
slowed down by the ravages of
age.
Mao shares Brezhenev's
taste for good food, strong
drink and a woman's _touch.
But he is less grumpy and
grim than the Soviet leader.
There's an avuncular affabil-
ity about Mao, and he has an
infectious laugh.
But at '17, he walks Si o\vly,
though erectly, with his left
arm dangling strangely. The
CIA concluded from a careful
study of film shots that Mao's
eyes are ? dim from age. ? He
seems unable to recognize old
comrades until they are face
to face.
The CIA has also caught the
old fox using a ringer to stand
iti for him at long, drc.!stry pub-
lie parades. But it VIr;s the real
Mao who. made that publi-
cized plunge in the Yangtze a
couple years ago. The picture
?710
t,
(1/ VI., LI di
? .
of his moon ? face bobbing
above the WaVeS- was carefully
scrutinized by the CIA' which
concluded after measuring his
ears and other facial features
that the swimmer was no
Pictures of world leaders
routinely are blown up had
studied by CIA doctors for
clues to their health. Their be-
havior is also analyzed by CIA
psychiatrists ? end psycholo-
gists. .
Footnote: One of the -CIA's
greatest triumphs, heretofore
untold, was :fishing out sonic
of the late Premier Nikita,
Khrushchey's excrement be-
fore it was flushed down the
toilet. The great bathroom
caper was pulled during ids
i959 state visit to the U.S. The
filched feces was eagerly ana-
lyzed by CIA medics who con-
cluded that Khrushchey then
was in excellent 'health for a
man of his age and rotundity,.
A _ r?1 -
0tr(111.3.11rili V.MXCg -
One of the most notorious
_regimes in the Americail labor
movement may be near its
end.
Pete Weber, the strongman,
mop() a--ear boss of the Op-
erating Engineers in New Jer-
sey, has 'gona to jail for extor-
tion, His brother Ed, who ran
for his job, has been beaten by
Larry Cahill, an honest, vet-
eran union man.
0
But there is life in the old
Weber machine yet. Cahill's
supporters were subjected to
bullyboy tactics to teerce
them going along ',vith Ed
Weber.
Cars with Cahill. hume?oe
stickers had their tirc.i.
and windows broken. Thne.e
Cahill. men were 1:?-.1eien up.
Others wc.,re laid off work by ?
pro-Weber union leri.ymen,
Even the ballots -1.-,:ere2
clicop-
tivly designed so that.Criitl
supporters would marlz their
ballots for Ed Weber,
Nevertheless, tlie eirsllenger
squeaked home by 1-.:P5 VOI;p8.
The count is o:i"fielel end final
under the unionnfeen:4iitutiou.
But the ISrobel': y!) ? aie now
trying to ':'an eccant".
it would kr ? ox-ritd_ out of
course, by pm-o-\\`(4-T incum-
bent ?Ulcers.
'rho- man n i o.)11:id. stop all
this is the interna-
tional union t'residNit Huntee:
Wharton. , by tele-,
phone N't lit 1.(? ratini lunch at
La Chetlaimme, a swanky
Washington restaurant,
Wlias-
ton made it clear he is_ still tin-
willing Ic Ink:I,: the Weber
crowd. ?
He clabm,,d he had no offi-
cial knowledge of Cahill's
upset Wifl, "We're not doing
anything either way," he said.
"We're not In the middle of it
one way or another."
IMI-Mcaluro liyndicatti
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