ficials. A secret told at the right time can shock, arouse, surprise, stymie oppo-
sition, and gain advantage. Or it can be a dreadful mistake. A secretary has
to know the difference and act accordingly. If a secret is not properly handled,
it can accomplish little through the telling and do incomparable damage.
"The Defense Department has been much freer with its secrets in recent
times. Former Secretary of Defense Robert S. McNamara was not averse to
dropping secrets from time to time. The only time tne secretary showed an
avid interest in keeping a specific matter completely under wraps was the case
of the so-called McNamara line.
"During his 11-month tenure, former Secretary of Defense Clark M. Clifford
generally stayed away from heavy public involvement in strategic armanents
affairs, itreferring to devote his energies to efforts to bring about successful
negotiations on Vietnam. Many of the Pentagon's deepest secrets are in specif-
ics on the strategic arsenals of both nations, and Mr. Clifford spent little effort
on the learning of specifics. Thus, in a sense, he was somewhat limited as to
juicy seci'ets to tell.
"Mr. Clifford's periodic frankness on the subject of relations with South
Vietnam wei'e, however, often spellbinding. Although many secrets probably were
not divulged as the former Secretary discussed the maneuvering prior to the
complete halt, the material he gave forth was obviously of the sort normally
considered privileged.
"Now, with the stage set by Mr. Laird's revelations about specifics of mis-
siles and megatonnage in the Soviet nuclear arsenal, chances are good that the
administration will be releasing still more information of a nature that would
have been considered classified at earlier times," ^^
Obviously, the Secretary of Defense is concerned with the state of the coun-
try's defenses and the overall threat as he sees it. Secretary Laird assumed
office at a time when the U.S.S.R. was overtaking the United States in the
number of land-based ICBM's deployed, and he foresaw the prospect of their
catching up also in the number of antisubmarine-based launchers in a few
years. Still another cause for concern was the megatonnage of the biggest So-
viet ICBM, the SS-9, and the possibility that it would be fitted with multiple
war heads capable of destroying the U.S. Minuteman missile in a preemptive
strike. These and other considerations led him to make public a great deal
more information about Soviet strategic programs, actual and anticipated, than
had either of his predecessors.
As Ashworth remarked :
"The approach to strategic secrecy has indeed changed since 1960, when the
Republican managers of the Defense Department refused to declassify infor-
mation to refute Democratic charges of a "missile gap." Upon taking oflSce,
Mr. McNamara himself refuted the charge made by his party.
"The 1968 election failed to feature any real controversy over strategic
strength. Consequently, it was marked by few Pentagon revalations. The same
was not true in 1964 when Republican charges caused the Pentagon to declas-
sify profuse quantities of classified information.
"In 1967, when the Republican challenge was brewing. Deputy Secretary of
Defense Paul H. Nitze was most forthright on warhead sizes, yields and ef-
fects, as well as reliability, when the nation's deterrent was questioned by
Rep. Criag Hosner (R) of California.
"Slightly earlier. Mr. McNamara had mentioned multiple independently tar-
getable warheads for the first time publicly. He used the medium of an article
in Life magazine to discuss the antiballistic missile defense system and multi-
ple warheads. Earlier, the warheads, MIRVs, had been so tightly classified
3081
that the pentagon would say nothing about them. Mr. McNamara wanted, how-
ever, to reaffirm public faith in a U.S. lead."*"
Still another current practice in declassification is that of former govern-
ment officials who take advantage of personal files to write the bureaucratic
battles of the past. Commenting on this, Herbert Feis, who silent many years
in the State Department, has drawn ironic attention to the contrast between
public policy (to keep official papers classified for years) and private practice:
"If we turn to the problem of writing the history of the crucial events in
our foreign relations during the short term of office of the gallant John F. Ken-
nedy, the divergence of the restrictions becomes glaring. There is, I presume,
no chance that the historian vrould at present be able to consult the pertinent
official records of memos of conferences, instructions to our embassies, and cor-
respondence with foreign statesmen during the period of his presidency. But
what an admirable series of pi'iviieged and candid narratives and memoirs tell
us what may be found in them ! What elaborately detailed accounts have ap-
peared in the weekly magazines of how the bout of the Bay of Pigs came
about, and what happened in the critical crisis when President Kennedy chal-
lenged the Russian installations of missiles in Cuba !
"Can the historian be blamed if he is struck by the contrast between the
scope and contents of the published official records and the disclosures of par-
ticipants, confidants or a few favored journalists? This places a very high pre-
mium on securing and diffusing information before anyone else, and perhaps
exclusively. Men may be drawn into office as the corridor to future careers as
historians. Warm the Boswells inside the gates, envious the Boswells left
outside !"^i
The high incidence of leaks of classified information which appear to be ap-
proved by some one in authority serves to conceal the fact that many disclo-
sures occur which are completely unauthorized. In most cases, it is difficult if
not impossible to track down the guilty party because the information is so
widely disseminated within the government and because reporters are unwill-
ing to reveal the sources of their information.
IV. THE EFFECT OF THE CLASSIFICATION SYSTEM ON THE CONGRESSIONAL ROLE
IN FOREIGN POLICY
A. The congressional need to know
Under the Constitution both the foreign policy powers and the war povvers
are shared by the President and the Congress. The need of Congress for infor-
mation on defense and foreign relations stems primarily from specific responsi-
bilities of Congress which are enumerated in the Constitution.
Aside from the general mandate provided by Article I, Section 1, "All legis-
lative Powers herein granted shall be vested in a Congress of the United.
States. . . ." the Constitution provides that Congress shall have power "to lay
and collect taxes, duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United States. . . ." [Article I,
Section 8 (1)]: "to regulate commerce with foreign nations. . . ." [Article I,
Section 8(3)] ; "to define and punish . . . offenses against the law of nations."'
[Article I, Section 8(10)] ; "to declare war . . ." ; [Article I, Section 8 (11)] ;
"to raise and support armies ...';; [Article I, Section 8(12)] ; "to proivde and
maintain a navy;" [Article I, Section 8(13)] ; "to make rules for the govern-
ment and regulation of the land and naval Forces ;" [Article I, Section
8(14)]; and finally, "to provide for calling forth the militia to execute the
laws of the Union, suppress in.surrections and repel invasions;" [Article I, Sec-
tion 8(15)]. Article II, Section 2(2) provides the Senate with two additional
responsibilities, stating that the President "shall have the power, by and with
the advice and consent of the Senate, to make treaties, provided two thirds of
the Senators present concur ; and he shall nominate, and by and with the ad-
vice and consent of the Senate, shall appoint Ambassadors, other public Minis-
ters and Consuls., . . ." In addition to these specific responsibilities, the Consti-
tution provides further that the Congress "make all laws which shall be
necessary and proper for carrying into execution the foregoing powers, and all
other powers vested by this Constitution in the Government of the United
States, or in any department or officer thereof." [Article I, Section 8(18) ].
Congress frequently needs to have information which is classified in order to
carry out specific defense and foreign policy responsibilities assigned to it
3082
under the Constitution. For example. Congress needs to know wliat are the
threats to the country's security and what are current military capabilities if
it is to provide for the common defense. It needs to Ivuow the precise facts in-
volving hostilities when there is a question of whether or not war should be
declared. The Senate needs to know the history of negotiations leading to a
treaty before it decides whether to advise and consent to the ratification of
tliat treaty.
Because of the congressional "need to know," the first aspect of the problem
of classified information is how classification affects the efforts of Congress to
get the information necessa.ry to carry out its duties in the foreign and de-
fense policy fields. A comprehensive survey of individual Members of Congress
and committees would be necessary to ascertain tlie extent to which the infor-
mation they need is classified and the extent to which they are given the clas-
sified information which they seek. Similarly, access to the classified informa-
tion would be necessary to determine if the information given out to Congress
was the whole truth. Nevertheless the outlines of the situation can be traced
without such comprehensive information.
B. Access of Congress to classified information
The classification of information does not automatically mean that Members
of Congress cannot obtain it. Long ago, before the classification system, Presi-
dent Washington recognized the right of the Senate to access of secret infor-
mation when he placed before that bod.v information which he liad kept from
the public and the House of Representatives regarding the .Jay Treaty in 17116.
Similarly today the Executive Branch appears to recognize the general right of
Congress to be given classified information. Although there is nothing in Exec-
utive Order 10501 covering the specific subject of providing, classified informa-
tion to Congress, a Department of Defense directive makes it clear that classi-
fied information may be given upon request from Members of Congress and
that it may be discussed with congressional committees in closed hearings. The
directive states as policy that information not available to the public because
of classification "will be made available to Congress, in confidence" in accord-
ance with certain procedures. '^-
The Department of State regulations contain a recognition that classified in-
formation may be sent to Members of Congress in the statement "Classified or
administratively controlled inaterial may be sent to other Federal departments
or agencies or to officials and committees of Congress or to individuals therein
only thi-ough established liaison or distribution channels." '^^ Further policy on
this matter apparently does not appear in writing. However, according to one
State Department official, by virtue of their otfice Members of Congress may be
shown classified information even though they have not received formal clear-
ances as individuals. Classified information is not ordinarily left with individ-
ual members, however, because of the lack of approved stoi-age facilities for
setiirity material.*''*
Committees often do have facilities and procedures for safeguarding classi-
fied material, and the congressional committees chiefly concerned with foreign
and defense policy have been given sizeable amounts of classified information,
usuall.v through closed hearings. When the transcripts of the closed hearings
are printed, the classified information is deleted unless the executive brance of-
ficials concerned declassify the information so that it can be made public.
The fact that Congress obtains a considerable amount of classified informa-
tion does not mean that members of committees get all the classified informa-
tion they request or need, however. The Department of Defense directive
acknowledges that there may be "rare" instances in which there is a question
whether information should be shown to a Member of Congress even in confi-
dence. The directive specifies that a final refusal of information to a Member
should be made only with the approval of the Head of the Department of De-
fense component concerned or the Secretary of Defense, and that a final re-
fusal to a committee of Congress should be made only with the concurrence of
the Assistant to the Secretary of Defense for Legislative Affairs. The later is
responsible for insuring compliance with any procedural requirements imposed
by the President :
"In the rare case where there is a question as to whether particular infor-
mation may be furnished to a Member or Committee of Congress, even in con-
fidence, it will normally be possible to satisfy the request through some alter-
nute means aceeptable to both the requester and the DOD. In the event that
an alternate reply is not acceptable, no final refusal to furnish such informa-
tion to a Member of Congress shall be made, except with the ex[)ress approval
of the Head of the DOD Component concerned, or of the Secretary of Defense.
The Assistant to the Secretary of Defense (Legislative Affairs) shall be in-
formed of any such submissions to the Head of a DOD Component or to the
Secretary of Defense. A final refusal to a Committee of Congress may be made
only with the concurrence of the Assistant to the Secretary of Defense (Legis-
lative Affairs), who shall be responsible for insui'ing compliance with all pro-
cedural requirements imposed by the President or pursuant to his direction." ^^
Instances in wliich members were not given information they believed they
needed date back for many years. A survey conducted by the Subcommittee on
Constitutional Rights of the Committee on the Judiciary in 1960 revealed sev-
eral eases relating to foreign policy in which specific information or documents
being sought were not transmitted or were transmitted only in part to mem-
bers of Congress.
One case in that record involved Senator Humphrey in liis capacity as
Chairman of the Disarmament Subcommittee in 1900. In 1959, President Eisen-
hower announced a full review of United States disarmament policy under the
chairmanship of Charles Coolidge. In January of 1960, Coolidge reported to the
Secretaries of State and Defense and Senator Humphrey subsequently at-
tempted to obtain the report. In response to a letter from Senator Humphrey,
tlie Secretary of State said that the report was in the form of a working
paper and was not being made public. The State Department also answered
negatively the Senator's second letter requesting that the report l»e made avail-
able on an executive basis. When Senator Humphrey's third letter asked on
what ground and vinder what authority the information was being denied, the
Secretary replied that the study was prepared for internal use of the Secre-
taries of State and Defense only.
Similarly, Senator Fulbright, in response to tlie survey, related that he was
denied a complete copy of the report of General Carroll on black market activ-
ities in Turkey in 1959. After exchanges of correspondence with the Secretary
of Defense and the General Counsel of the Department of Defense, the Senator
was given the first 15 pages but the General's conclusions were withlield and
never made available.^*''
When a Member or committee of Congress attempts to obtain a specific piece
of classified information and is denied it, the problem merges with that of ex-
ecutive privilege. For though the information sought may be classified, with-
holding it from Congress apparently is more likely to be based on executive
privilege than on the basis of classification. To deny it on the grounds of clas-
sification might imply either that the member of Congress seeking it did not
have a need to know or that he was not trustworthy. The Committee on Gov-
ernment Operations reported in 1960 :
"It should be borne in mind that none of the information witliheld from this
subconunittee lias been withheld on the basis that it is classified ; that is that
its release to a congressional committee would imperil the national security . ...
"On a number of occasions, when the question was rnised, the subcommittee
has been directly told by executive branch officials that particular documents
withheld were not being withheld on ground of security, but on the grounds of
'executive privilege.' " '^^
Although the doctrine of executive privilege is controversial, as a practical
matter when information is in the hands-of the executive brancli the President
is physically or administratively able to withliold it it he deems it advisable.
More recently, the work of the Subcommittee on Security Agreements and
Commitments Abroad demonstrates that committees can obtain a great deal of,
but not all, classified information on a subject if they know it exists and are
persistent.
The Subcommittee on Security Agreements and Commitments Abroad stated
in its final report of December 21, 1979:
"The record of the Subconunittee is replete with a variety of instances in
which Vvii failed to obtain information without which the Congress cannot deal
seriously, and as an equal, with the Executive Branch on matters of foreign
policy.
"One of the more important of these was an understanding of the relation-
ship wliich exists between the United States and the Royal Government in
Laos. . , .
3084
"When our initial Congressional effort was made to get the truth about
Laos, we were either blocked, or the responses were misleading. . . .
"The details of agreements with Thailand, Korea, the Philippines, Ethiopia,
Spain and other countries, which details remain classified, have been obtained
during the Subcommittee investigation and discussed during country-by-country
hearings. Few facts were volunteered in the first instance." ^s
Classification of information appears to present more of a problem to Con-
gress when it prevents Congress from knowing enough about policies to raise
questions about them or to ask to see the classified information which exists,
and thus from participating in formulating policies. This is not a new problem.
In the 1960 survey conducted by the Subcommittee on Constitutional Rights
Senator Anderson, Chairman of the Joint Committee on Atomic Energy, re-
sponded with a list of instances in which the Joint Committee on Atomic En-
ergy was not kept fully and currently informed by the Department of Defense
as required by the Atomic Energy Act of 1954. One of the Senator's examples
related that the Committee was informed of a proposed arrangement with an
allied nation for the use and custody of an American air-to-air nuclear weapon
by a special assistant to the Secretary of Defense in November of 1959, only
after the planned arrangements had been discussed with the allied nation some
time earlier in 1958 and the recommendation for the arrangement made by the
Joint Chiefs of Staff in April 1959. The Defense Department in June of 1959
proposed that such an arrangement be entered into by the State Department.
None of these dealings had been brought to the attention of the Joint Commit-
tee until November.*^®
The Symington Subcommittee report, discussing the growth of the United
States commitments involving defense of other countries, said :
"One secret agreement or activity [regarding Southeast Asia] led to another,
until the involvement of the United States was raised to a level of magnitude
far greater than originally intended.
"All of this occurred, not only without the knowledge of the American peo-
ple, but without the full knowledge of their representatives or the proper com-
mittees of the Congress.
"Whether or not each of these expensive and at times clearly unnecessary
adventures would have run its course if the Congress and/or the people had
been informed, there would have been greater subsequent national unity, often
a vital prerequisite to any truly successful outcome." '"
The Senate Foreign Relations Committee hearings on Laos released in Octo-
ber 1969. six months after they were held, revealed that for five years the
United States had been waging a secret war in northern Laos. In his testi-
mony, the United States Ambassador to Laos told the committee that the
United States had no military training and advisory organization in Laos;
that there were no U.S. advisors with the Laotians; and that Air America car-
ried equipment only for the AID program and was not involved in combat op-
erations. The Ambassador neglected to acknowledge the significant role of the
U.S. Air Force which had been bombing northern Laos for years. When con-
fronted at later hearings by the Committee, the former ambassador said that
he did not dLscuss the bombing because he was not asked any direct questions
about United States operations in northern Laos. Senator Fullbright went to
the heart of the problem when he answered :
"We do not know enough to ask you these questions unless you are vvilling
to volunteer the information. There is no way for us to ask you questions
about things we don't know you are doing." ^^
Senator Symington pointed out that the secrecy imposed by the executive
"prevented any objective revievv^ by the Congress of our policy " but that
when details of the heavily stepped-up bombing were finally disclosed to the
Members. Congress took action by adopting an amendment which prohibited
the sending of ground combat troops into Laos.'^
C. Congress, classified information, and public opinion
In addition to the foreign policy functions of Congress set by the Constitu-
tion, Congress plays a role as a link with public opinion. Its hearings and de-
bates help keep the pul/iic informed of the various sides of foreign policy is-
sues and reflect the diverse views of the American people. President Nixon
recognized this role for Congress when he wrote in the conclusion of h*:s Sec-
ond Ainiual Review of United States Foreign Policy.
3085
"Charged with constitutional responsibilities in foreign policy, the Congress
can give perspective to the national debate and serve as a bridge between the
Executive and the people." "^
A number of Members of Congress have also seen the informing and reflect-
ing of public opinion as one of the most important current roles of Congress in
the foreign policy field. Senator Javits in an article in Foreign Affairs last
year wrote :
"A major function of the Congress with respect to the great issues of for-
eign policy and national security is that of shaping as well as articulating
public opinion. In a democracy such as ours, governmental action is possible
only within parameters defined by public attitudes and opinions. In the major
Senate foreign policy debates of the very recent past — Viet Nam and ABM —
we have learned that the development and public presentation of new informa-
tion and interpretations bearing on the great issues is a vital Congressional
function as well as a potent instrumentality in asserting legislative preroga-
tives and responsibilities." "*
Senator Fulbright in The Arrogance of Power expressed the view that :
"Congre.'JS has a traditional responsibility, in keeping with the spirit if not
the precise words of the Constitution, to serve as a fonun of diverse opinions
and as a channel of communication between the American people and their
government." '^
Classification of information has been a major problem to Congress in ful-
filling this role. As long as the information remains classified. Congress cannot
publicly debate it to inform the people or to inform other Members voting on
legislation. The frustrations inherent in this were expressed by Senator Ful-
bright in hearings on United States commitments in Morocco. Senator Ful-
bright contended that it was Congress' responsibility to be concerned with the
funding of United States installations in Spain and Morocco and told executive
branch officers. "V>\\t then you said, it is classified, it would not do to talk
about it. Therefore, we cannot even discuss it on the Senate floor." '''^
To meet this problem. Congress has played an important part in getting in-
formation declassified to make it available to all. A process of negotiation has
been used by congressional committees to make testimony given in secret or in
closed hearings by executive branch representatives a matter of public record.