One of the first steps in solving a crime is to determine who benefited by it. The chief beneficiaries in the leak of the Pike committee report on intelligence were the intelligence agencies themselves. The report turned up on the CBS evening news Sunday, January 25, and in the first editions that same evening of The New York Times for Monday, January 26. When the House of Representatives met in Washington at noon next day the minority on the Pike committee launched the attack which led three days later to the vote against release of the report.
Logic, probabilities, and the circumstantial are not proof. Folly can never be excluded. But an examination of the strange circumstances in which the report was suppressed may put newspapermen on their guard and show the public what we are all up against in dealing with secret agencies. The Pike committee voted nine to four on the afternoon of Friday, January 23, to release its report. Everything was ready for publication after months of hard work and agonizing hassles with the intelligence agencies and the executive branch. The majority of the committee and the staff were triumphant. The last hurdles to publication seemed to have been safely cleared.
Yet that very weekend someone leaked a copy of the report to The New York Times and to Daniel Schorr of CBS, giving the intelligence agencies their chance to discredit the committee and block release of the report.
This leak was not, repeat not, a leak to thwart censorship. Under the rules of the House and the resolution establishing its Select Committee on Intelligence (the Pike committee), that nine to four vote on Friday afternoon, January 23, was all that was needed to release the report. The committee did not have to go to the Rules Committee for permission, nor did it need a vote of the House to make the report public. The report would have been released automatically as soon as copies came back from the printer. It was the leak that did the committee in.
At the time of the leak, The New York Times and CBS were not giving the public information that would otherwise have been suppressed. They were merely getting the report in advance of their competitors. At that point, their news stories were a beat, not a public service. Indeed, as soon became clear, it was a public disservice to jump the gun by a few days on official release of the report at the cost of giving its enemies—and the enemies of the press—just the opportunity they were looking for.
The leak fit beautifully with a well-synchronized attack by the enemies of the report. On Monday morning, January 26, Daniel Schorr showed his copy of the Pike report on CBS morning news and The New York Times arrived in Washington with extensive stories on what the report contained. This coincided—whether by accident or design—with plans which seem to have been already made for an onslaught that very day on the floor of the House.
When the Pike committee met at 10 AM that morning, Congressman McClory of Illinois, the ranking Republican on the Pike committee, sprang a surprise on his colleagues. He revealed that he had asked for and been granted special permission to address the House that day and charge security violations in the report. That gave the committee majority very little time to prepare a reply. The committee adjourned after 11 AM and when McClory took the floor in the House soon after it met at noon, it became clear that he and his supporters were well prepared.
When the majority spokesman of the committee asked for a delay to await the arrival of Chairman Pike, who had been held up in New York by stormy flying weather, McClory said he could not wait because other congressmen were alerted to speak in his support. McClory said he would be “very happy” to have Pike present but he could not wait for him because “I have made these plans and there are a number of others who want to participate.” But he assured his colleagues of the Pike committee, “I am not intending to attack anybody or anything like that.” He added, “Now really, this doesn’t have anything to do with the question of leaks.” But the leaks to The New York Times and CBS were brought up over and over again by McClory’s supporters on the House floor. The leaks provided an ideal backdrop for the one-sided “debate” which followed.1
McClory’s speech charged that the report violated an agreement to give the White House final power to veto any committee revelations, subject only to a later appeal to the courts. But the main emphasis of the debate was on the leaks. The final speaker, the Republican minority leader, Rhodes of Arizona, summed it all up by saying that the executive branch “charged with our national security” could not be expected “to confide in a Congress that is a direct conduit to the public press and rushes to the media to divulge every particle of information it receives.” In a phrase worthy of the best on Madison Avenue, Rhodes said the public’s right to know did not give Congress “the Right to Blab.” Even soap has never been sold more skillfully.
This is the theme song of the counterattack orchestrated by the intelligence agencies—the newspeak of the CIA and FBI. Congressional control is to be stigmatized as a “blabbermouth” operation. Attention is to be focused not on the abuses of secret government but on those who criticize and expose them. And if there isn’t enough “blabbing” from Congress we may expect the intelligence agencies to do the blabbing themselves and blame it on Congress and the press.
The government itself has always been the foremost leaker. The chief value of the classification system is the wide leeway it gives the government for manipulating the public mind by selective declassification. But this is only one of its many uses.
One way to undercut a congressional investigation is to beat it to the punch by leaking part of the story in advance. It makes the later official revelation sound like old hat news. It leaves the congressional report, when and if it comes, to be greeted by “ho hum, so what’s new?” If you leak a report and then block the official report, as has been done with the Pike report, then the revelations never have official status. If the full text or part of it appears in peripheral offbeat publications like The Village Voice, the damage is limited by its limited circulation. It is hard to get outside New York, and other publications do not give the text the study and review it would otherwise get as a public document. Congress doesn’t see the considered reasoning and recommendations of one of its own committees; it only gets the “headline stuff” creamed off by a few favored papers.
A lot of the “leaks,” as many newspapermen know, have come from the executive branch and the intelligence agencies themselves. One of the biggest “leaks,” which hurt the Pike committee last November, was the leak to Schorr at CBS and to The New York Times and The Christian Science Monitor of the tragic story of how the CIA sold the poor Kurds down the river, first giving them secret support against Iraq and then cutting it off when that suited the Shah of Iran’s power politics. Pike committee sources claim that there were hitherto unknown details in the New York Times and the Christian Science Monitor reports of the Kurd story which were new even to its own investigators, details which led them to suspect that the leaks must have come from an intelligence agency.
Schorr broke the Kurdish story on CBS news on the Saturday night before it appeared in The New York Times and The Christian Science Monitor. Mitchell Rogovin, special counsel to the CIA, phoned a Pike committee staff official that Saturday morning and asked him to stop Schorr from telling the story on TV that night. The Pike committee official, who had not been aware that the Kurdish story had leaked, asked himself whether that telephone call was a cute way to divert suspicion from the CIA as the source. That is the kind of question naturally bred by the CIA’s capacity for murky and labyrinthine manipulations. The CIA was aware that nothing had so angered the Pike committee as the Kurdish tragedy—this was a subject on which there was no minority—and some Pike committee members believe that the intelligence agencies leaked it in advance to defuse the coming committee report.
The Kurdish story leaked the very weekend in November that Colby was fired by Ford. The New York Times in publishing it gave “a senior intelligence official” as its source. While the leak was later used to smear the Pike committee, the target of the intelligence official in leaking it was Kissinger, who was Nixon’s willing accomplice in this tragic bit of “realpolitik.”
The executive branch and the intelligence agencies had a motive, and the intelligence agencies had ample means, to leak the Pike report in advance. There were several versions of the Pike committee report as it went through repeated and prolonged revision in hassles with the various executive and intelligence agencies involved. There were close to two thousand copies of various versions circulating in the White House and the federal agencies for the purpose of pinpointing security matters and arguing for various kinds of deletions. Copies were even sent to many embassies abroad. Chairman Pike told the House bitterly on January 27 that the mistake he made was in supplying a copy of the final version of his report to the CIA as soon as his committee voted approval on the 23rd. So the CIA got the final version the day before the leak.
Those committee members who sided with the intelligence agencies kept in close touch with them in the prolonged negotiations over security deletions. In the battle over deletions copies had to be furnished to intelligence officials far down on the totem pole to deal with highly technical security problems. A leak could easily have been arranged in those quarters and been far harder to trace than a leak inside the Pike committee, where there were only enough copies for each of the thirteen members and perhaps a half-dozen copies for staff use. Yet a staff leak cannot be excluded.
This brings us to a new problem, of which the public has not been aware, and that is the problem of “detailees.” The word “detailee” is a new word I don’t believe anybody ever heard used publicly until the Pike committee report. The word seems to have been added to the lexicon by the CIA. It is a bureaucratic euphemism for a certain kind of infiltrator, an intelligence agent who is slipped into other branches of the government, sometimes openly, sometimes covertly. Sometimes he is semicovert—his identity being disclosed only to the head of the department or office to which he has been “detailed.”
There is no way of being certain whether any, and if so how many, intelligence “detailees” have infiltrated Capitol Hill. A secret agency might well be tempted to “detail” one or more of its own to watch any committee investigating it. Such “detailees” would be ideally placed for “leaks” with which to discredit the committee they had infiltrated. It would be naïve not to take this possibility into account.
This problem of infiltration is muted in the Pike report. It appears in column one of page eighty-nine in the twenty-four-page supplement on the Pike report in The Village Voice for February 16. But it is serious enough to have called forth corrective proposals from both the majority and the minority in the final recommendations submitted to the House by the Pike committee on February 11.
Like others, I have often wondered what could happen to the government if it were secretly infiltrated by the intelligence network, which could then pull the strings from behind the scenes. But the first public mention of such infiltration I have ever come across was at the public session held by the Pike committee on February 4, almost two weeks before the Village Voice text appeared.
At that hearing, the Pike committee staff director, A. Searle Field, explained that “detailees was one of the subjects of the initial [CIA] Inspector General’s report of 1973, which looked into internal CIA abuses.”
The Pike hearings and the Pike report do not disclose what the CIA inspector general found out or what he recommended be done about it. But it would seem to be a practice which should wisely be scotched in the early stages. A network of gumshoe agents within the government, working as civil servants but subject to agency command, might sound like a plot for a new James Bond thriller. But if the abuses implicit in this practice are real enough to be investigated by the CIA’s inspector general, and to be the subject of legislation recommended by the Pike committee, it is not wise to dismiss them lightly.
The Pike report says CIA “detailees” sit on interagency panels unbeknownst to their colleagues, that “some of them work in positions involving evaluation of CIA’s work product and proposals,” and that some of these covert operatives prepare covert action proposals for the National Security Council in the White House without revealing their identity to the Council.
Another example of such infiltration was given by Mr. Field at the February 4 meeting of the Pike committee. He told of a five-man government body set up to deal with new amendments to the Freedom of Information Act. One member was an overtly assigned CIA man while a second member was a covert “detailee” from the CIA.
The only sensible way to deal with an abuse so difficult to check is simply to make it unlawful for the CIA to put “detailees” into public agencies. The practice can be doubly subversive of good government. To judge by the report, the White House itself often arranges for CIA “detailees” for purposes of its own, such as “to circumvent Congressional budget ceilings.” The Pike report does not say so but the Watergate revelations show that this can be one way for an unscrupulous president to use the intelligence agencies against his own political opponents.
At pages 1590 to 1592 in Part 5 of the Pike committee’s published hearings, we get a glimpse of the kind of dubious White House relationships which drew the CIA inspector general’s attention. The ranking Republican on the committee, McClory of Illinois, asked William E. Colby at a hearing last November 6 about the case of Chester L. Cooper, an assistant CIA director for policy support who was assigned to the staff of Lyndon Johnson’s assistant for national security affairs, McGeorge Bundy, as an expert on Vietnam and China.
Cooper went to the White House in July 1964, remaining on the CIA payroll until the end of the year, and then continued to be carried on agency rolls as on leave without pay until he resigned from the CIA in April 1968. He worked first in the White House, then in the Institute for Defense Analyses, a think tank for the Joint Chiefs of Staff, and then in the State Department. There is no evidence that these were covert operations. But it is clear from a memorandum which Colby provided for the record at Congressman McClory’s request that Cooper’s service in the White House led to his being used by Lyndon Johnson in his campaign against Goldwater.
According to the memorandum, Cooper was questioned by a member of the CIA inspector general’s staff on December 21, 1973, “on the political nature of his activities while on the NSC staff” at the White House. “At that time,” the memo said, “the press carried reports that CIA spied on Senator Goldwater.”
Cooper said he simply had received advance copies of Senator Goldwater’s speeches. The memo says advance press copies of the speeches “were picked up by a female Domestic Operations Division employee” of the CIA and Cooper “would then critique them.” The Colby memo admitted there was “no question that Mr. Cooper was serving the White House in the political campaign while on the CIA payroll and that he was assisted in part” by a woman agent of the CIA’s “Domestic Operations Division.” McClory’s crossexamination of Colby was noteworthy for its meagerness. He did not ask Colby what other chores that woman operative may have performed for Johnson at Goldwater headquarters. It seems an unnecessarily expensive and roundabout way to get advance press copies of Goldwater speeches. McClory wasn’t very inquisitive.
It is hard to believe that so powerhungry an operator as LBJ, and one so innocent of scruples, would be so restrained in his use of the CIA.
But the majority of the Pike committee did not recommend that “detailing” be made unlawful. It only recommended “that intelligence agencies disclose the affiliation of employees on detail to other government agencies or departments to all immediate colleagues and superiors.” That is toothless.
McClory in his recommendations as ranking member of the Republican minority would water this down further. He recommended that “detailees not be placed in any position in which an actual or apparent conflict of interest might exist.” Full disclosure is the best way to prevent this but McClory’s recommendation would require disclosure of the CIA man’s identity only to the head of the agency to which he was “detailed.” What if the head of the agency wanted an intelligence man, to help him keep an eye on his other employees, his rivals, or his critics? Such feeble safeguards merely give respectability to the abuses exposed.
Were there “detailees” operating covertly on the Pike committee staff, or in the federal agencies that had access to the report, and did they have any part in leaking it? Schorr and the New York Times reporters may well have been unaware of the real affiliation, or hidden loyalties, of their secret “source.” I’m sure they would not have lent themselves knowingly to a leak which had been set up by the CIA to undermine the committee and thwart the public interest.
The suppression of the Pike report was a swift and well-planned operation, marked by trickery and misrepresentation, in which the Republican minority, the White House, and the intelligence agencies had the collaboration of the Speaker and the Democratic House leadership. The trap that placed the Pike report at the mercy of the Rules Committee was sprung on January 27, the day after Pike’s committee was attacked for “leaks” on the floor of the House.
The majority of the Pike committee had promised the minority to ask for a five-day extension before the report was filed in order to give the minority time to have its views published along with the report. This extension, usually a mere formality, required the unanimous consent of the House. At the committee hearing on the morning of the 27th, as the public committee record shows, Chairman Pike asked McClory, as the ranking Republican on the committee, if he had any indication that unanimous consent would not be agreed to. McClory said no, and added that he would recommend it. This was taken by the committee majority to mean the House Republicans would go along.
But when Chairman Pike went to the floor as soon as the House convened that day and asked unanimous consent, a Republican, Robert Bauman of Maryland, objected, saying that “some of us had hoped, when this report was formally presented to the House, to have a chance to consider some parliamentary method so that those portions of the report which might be detrimental to the interests of this country could be excluded from publication.”
The failure to get unanimous consent meant that Pike either had to withdraw his request or to put his neck in the noose by going to the Rules Committee for the five-day extension. He could have told the minority that he had fulfilled his obligation to them by asking for unanimous consent, and that since this had been denied, he would have to go ahead and release the report and leave the minority views to be published later, in a separate House pamphlet, as often happens in such cases. There were those on the committee who favored this procedure, but Pike felt that he was honor bound to go to the Rules Committee. The Rules Committee met next day, January 28, and voted out a murky resolution, ostensibly granting the extension of time but at the cost of stopping publication altogether.
The trap was now clearly visible. The Democratic House leadership, had it chosen, could have withdrawn the Rules Committee resolution. Indeed this is what Bauman and the Republicans feared. Bauman took the floor first thing on January 29 to say that he hoped the majority leadership would not “withdraw this resolution from consideration.” Only by a vote of the House, Bauman said, “can the American people know where each of us stands on the issue of destroying our intelligence capability.” This demagogic hyperbole, equating a vote to release the report with a vote to destroy “our intelligence capability,” was absurd but politically chilling.
Even so the resolution could be sold to the House only on the basis of misrepresentation. Dale Milford of Texas, the one Democrat on the Pike committee who was a member of the minority of four in favor of withholding the report,2 sent a “dear Colleague” letter to every member of the House before it met on January 29 marked “urgent” and saying—all emphases in the original—
IF YOU VOTE FOR THE RESOLUTION, YOU WILL BE ABLE TO GET A COPY OF THE REPORT, READ IT, AND DECIDE FOR YOURSELF WHETHER OR NOT IT SHOULD BE MADE PUBLIC. THIS RESOLUTION DOES NOT “GAG” THE COMMITTEE. It does prevent the Select Committee on Intelligence from unilaterally releasing classified information and very sensitive matters UNLESS THE FULL HOUSE SHALL APPROVE SUCH A MOVE BY A LATER RESOLUTION.
When the Rules Committee resolution came before the House later that afternoon, the members voted 246 to 124 for the resolution. Many members voted for it on the assurance, several times repeated during the debate, that they were only holding up the report temporarily so they could read it for themselves and judge whether it contained information so dangerous to security or proper intelligence activities as to warrant additional deletions or suppression.
But after the vote, when members began to ask the office of Speaker Carl Albert when they would get copies of the report, they were told that there was only one copy available and it had not been cleared for release to the members of the House! The precise form this double-talk took in various telephone communications to members has gone unrecorded. But no doubt it reflected the extraordinarily confused and confusing wording of the Rules resolution itself.
The part of the resolution dealing with the disposal of the Pike report contained two clauses. It said first that the Select Committee on Intelligence “shall not release any report containing materials, information, data, or subjects that presently bear security classification, unless and until such reports are published with appropriate security markings and distributed only to persons authorized to receive such classified information.”
But under the Constitution and the laws all members of Congress are automatically given “top secret” clearance to all classified information. Otherwise the Executive could stop the wheels of Congress and destroy its supervisory power over the government by wholesale wielding of classification stamps.
Theoretically any member of Congress was authorized to ask for and read a copy of the Pike report. But the Speaker kept the gag on for more than two weeks. Then on February 16 he announced that he was sending five copies each to five committees of the House—Armed Services, International Relations, Judiciary, Rules, and Appropriations—and that members who wished to read the report could do so in any of these committee rooms.
But strict conditions were imposed. Members who wished to see the report had to sign a promise to keep its contents secret. They were forbidden to take notes, and they could only read the report under the watchful eye of a committee staff member or security guard.
The circumstances were discouraging and intimidating. The report was 338 pages long, and could not be read in the privacy of a member’s office amid other chores. A reading might require several or more visits to the committee room. It was difficult to make a considered judgment without taking notes, and there was the danger that after reading so voluminous a study a member might forget where he had learned a certain fact and inadvertently disclose classified information, subjecting himself to the threat of censure in the House or even prosecution.
Apparently few members had the temerity to avail themselves of this risky privilege. When I began working on this story March 3, two weeks after the Speaker’s announcement, I tried to phone the counsel of each of the five committees to ask how many members had come around to read the report in that committee’s rooms.
At Armed Services, the most forbidding of the committees for liberal members because its staff is pro-Pentagon, I was told quite simply “none.” At House International Relations I couldn’t get past the switchboard, but after a stormy afternoon, still directly in contact only with the telephone operator, the answer was reluctantly relayed to me, “two.”
At House Judiciary, two days of effort were altogether fruitless. And at Appropriations and Rules I was told by the counsels’ offices that the chairmen of these two committees, George H. Mahon of Texas and Ray J. Madden of Indiana respectively, had forbidden them to tell me. The bureaucracy on the Hill can be as secretive and arrogant as the agencies themselves.
The other clause of the resolution said, “Or until the report has been certified by the President as not containing information which would adversely affect the intelligence activities of the CIA in foreign countries or the intelligence activities in foreign countries of any other department or agency of the federal government.”
This clause led many newspapermen and House members to believe that the report was being held up until the White House could state just what passages or sections of the report it objected to and then allow House members to judge these objections for themselves. Even so careful a research service as Congressional Quarterly reported (p. 419, February 21) that the House had voted to hold up the report until there was certification from the White House.
What helped to create this impression is that McClory and the Republican minority claimed that information had been given the Pike committee on the understanding that if there were unresolved conflicts between the intelligence agencies and the committee, these would be submitted to the White House so that the president could specify just what portions he objected to, and presumably why, and then the committee would either accept the White House opinion or challenge it in the courts.
Since McClory and the minority claimed that the report breached this understanding, and the Speaker himself took part in the White House conference last fall from which it derived, many assumed the Rules resolution was an effort to reinstate this agreement. But for the Speaker to send the report to the White House without a strict time limit and a demand for precisely specified objections would only get the Republicans off the hook and bury the report.
The submission of disputed material to the White House, with a request for pinpointed objections and a deadline within which the White House must answer or lose by default, is a provision of the bill for a Senate intelligence oversight committee just reported out by the Senate Government Operations Committee. This procedure could put the White House in exactly the same uncomfortable spot it occupied during the government’s attempt to enjoin publication of the Pentagon Papers.
The crucial point in that case came when Judge Gesell held a hearing in camera and asked the government to specify exactly what portions of the Pentagon Papers might endanger national security. The government’s inability to meet that challenge ultimately cost it the whole case.
I naïvely assumed that the Speaker might have sent the Pike report to Ford requesting specific comments. But when I phoned the White House to ask when there would be a communication to the House of Representatives about the Pike report, I was told that there had been no request for such a communication. When I asked why not, I was told the report had never been sent to the White House.
When I called the Speaker’s office to ask why the report had not been sent to the White House with a request to specify objections so members of the House would have a basis for judging the Pike report, I was told that the Speaker read the Rules resolution as giving him the option either of sending the report to the White House or of letting members read it and judge it for themselves. He chose the latter route.
At this point I was ready to burn a candle to the soul of Kafka.
Whatever the origins or motives of those who leaked the report, once the House voted for suppression, Daniel Schorr and The Village Voice performed a public service. They acted to print the text only after the House vote to suppress, when there was clearly a duty to make the text available.
It is characteristic that the target of the House investigation now is one isolated and suspended newsman. If secrets were given away, then CBS and The New York Times reached far more people with them than The Village Voice ever will, but the House leadership, like bullies everywhere, prefers to focus on the weakest possible victim.
Their efforts have been abetted by The New York Times and The Washington Post, which have sanctimoniously attacked Schorr on the utterly preposterous charge that he somehow was making money out of what he did by suggesting that The Village Voice make a contribution to the Newspaperman’s Committee for a Free Press.
Coming from two papers which profited by printing the Pentagon Papers, this editorial position can only be characterized as insufferably hypocritical. And I must add a scowl for the freedom of the press committee. Its statement on the Schorr case was (if I may be pardoned the mixed metaphor) as firm as jelly and as evasively verbose as a standard-model politician. With such champions, the freedom of the press is certainly in danger.
There are two dangerous precedents for newsmen in the Schorr case. The first lies in Schorr’s suspension by CBS on the ground that he has put himself in an adversary position with the government. A newsman was intended—shades of Jefferson!—to be in an adversary position to government. To let Schorr’s suspension go unchallenged is to give corporate media employers an excuse to get rid of reporters who get in wrong with the powers that be. I do not understand why The Washington Post and The New York Times do not see this. If they had acted like CBS, the former would have suspended Woodward and Bernstein and the latter Seymour Hersh. Why shouldn’t Schorr be able to fight back as a reporter for, and on, CBS and expose the evils of secrecy in government instead of being placed on the defensive and put in isolation as “controversial”?
The other dangerous precedent lies in the sanctions which the House witch-hunters hope to apply. The House does not have a legal leg to stand on if it tries to prosecute Schorr. The power to classify rests on shaky grounds in the executive branch; there are no grounds at all for classification in Congress. The only way the House can punish Schorr is to take away his credentials as a correspondent and thus his job. This is exactly the punishment sought in the investigation by that House Ethics Committee which was originally set up to police congressmen, not newspapermen, and which in almost a decade of existence has never before even bothered to obtain subpoena power or hire a full staff.
The punitive intent was clear in the speech made by the conservative Democrat Samuel Stratton of New York in his speech on February 19 introducing the resolution to have the Ethics Committee investigate the Schorr case. The basic premise of that speech was that covering the proceedings of the Congress is a privilege and not a right.
In his speech Stratton said Schorr had been “granted the privilege of serving as a correspondent in the House.” He said Schorr was guilty of “a contemptuous action” on the part of “someone to whom we have extended the facilities of the radio and television gallery,” and recommended to the Ethics Committee “that we should withdraw from him the privileges of membership in that gallery” (page H1179 of the Congressional Record for February 19).
The new ethics of journalism as outlined by Stratton show unsuspected gifts for humor. Stratton told the House in his speech attacking Schorr that “if a reporter objects to the classification label on a document, then that reporter has an obligation to call it to the attention of the people who set up our legally classified information.” For a man who has been around Washington as long as Stratton has and who claims to have been a newsman himself once, that is quite a suggestion, especially since there are no fewer than 15,644 federal employees authorized to wield secrecy stamps. Last year they added 3,500,000 pieces to the classified pile.
If covering Congress is a privilege, not a right—if the price of a newsman’s job is acquiescing in arbitrary congressional censorship—then the Congress and the intelligence agencies operating through Congress have another way to draw the press itself into the conspiracy of silence and to intimidate newsmen.
There was a time when parliamentary proceedings were privileged. Before 1771 reporters and printers could be punished for reporting the proceedings of the House of Commons without its permission. In this bicentennial year it is worth recalling that John Wilkes, the best friend the rebellious American colonists had in the House of Commons, established the right to cover parliamentary proceedings. As Sheriff of London, he successfully prevented the arrest of a printer the House charged with publishing its debates. That “lawlessness” in defense of a free press was one of the great moments of English history. Stratton says reporters must obey the law. Of course they must. But there may be times when the public interest imposes on them a duty to risk breaking secrecy rules.
Stratton kept talking of Rule X of the House. He said that under it “the privileges of the House concern the integrity of our proceedings.” The Constitution says Congress shall make no law abridging freedom of the press. Which is to prevail, a rule of the House or the First Amendment? If the secrecy miasma is to spread from the executive branch into the legislative, where does the duty of a free press lie? In submitting, and letting free government go down the drain?
The heart of the evil lies in the “dirty tricks” in which the CIA has specialized and which other intelligence agencies, especially the FBI, have also practiced. A government cannot carry on lawless activity in public. If it is going to use assassination, burglary, bribery, corruption of elections, agents provocateurs, covert slander, it can only do so in secret. There is no way for Congress to “oversee” such activities without revealing them and opposing them. To allow “dirty tricks” is not only to make real oversight impossible but to make Congress an accomplice in lawlessness. That is the rock bottom issue which has to be faced in the debate over the intelligence agencies, and very few are facing it.
The great investigations are ending in anticlimax. The net effect has been to accustom the public mind to the evils exposed and to institutionalize and legalize them by systems of congressional “oversight.” These will only draw the “overseers” into the conspiracy of silence, as they have done in the past.
On the Pike committee only Ronald V. Dellums of California, James P. Johnson of Colorado, and William Lehman of Florida were for outlawing “covert activities” altogether. The furthest the committee went in its final recommendations was to outlaw assassinations “and all paramilitary activities except in time of war.” An effort to broaden this somewhat to forbid, in peacetime, “secretly providing arms or financing to individuals or groups in attempts to sustain or overthrow any government,” as in Chile, was defeated five to six by the one vote of Les Aspin of Wisconsin. He, like Senator Church, would leave the door open for “dirty tricks.” The new “oversight” bill just reported out of the Senate Government Operations Committee goes no further than to instruct a new oversight committee to study the problem. The highest ranking ex-CIA man who is opposed to “dirty tricks,” Herbert Scoville, Jr., a former deputy director, was not even called to testify by any of these committees.
We have been talking of a newspaperman’s privilege. Now we come to the privileges of a member of Congress. Perhaps the most fundamental one lies in the clause of the Constitution which says a member cannot be prosecuted for anything he says in speech or debate on the floor of the Congress. This basic guarantee is also threatened by the secrecy miasma. Except in a few remarks by Javits at one hearing, no attention has been paid to the problems which “oversight” raises for the “speech and debate” clause of the Constitution.
What if a member of the House should now read the Pike report into the Congressional Record, as Senator Gravel did with the Pentagon Papers? Can he be arrested for violating “national security” as embodied in security classifications? The Constitution says no, and the Supreme Court says no. But pending legislation for “oversight” in both House and Senate would get around this guarantee by providing that he be censured or expelled.
What if during the secret Cambodian war, a war carried on in violation of the Constitution, a member took the floor and broke “national security” by telling the country what was going on? The free speech and debate clause originated in the struggle against Stuart oppression in seventeenth-century England, when members were arrested for what they said in the House of Commons. So ancient are the liberties which the current secrecy miasma threatens. The executive and the intelligence agencies, backed by a compliant, bigoted, or intimidated majority in either house, could do what English kings have been unable to do for three centuries. How can free government survive without free debate in Congress? How many members will be willing to do as Congressman Michael Harrington did and risk expulsion? How many will be willing to follow the example of John Wilkes, who was four times expelled by the House of Commons in his fight for liberty and a free press? And could reporters be threatened with loss of their credentials and expulsion from the press galleries if they reported what a new Wilkes said on the floor in violation of “security”?
How Nixon must wish he could have done four years ago what the White House and the intelligence agencies are doing now! How he must wish he could have changed the subject then from the abuses of “national security” to “leaks.” The Schorr case is an effort to put the press into the pillory, and to create a new immunity for “dirty tricks.”
The simple truth is that the Congress is now showing the same fear of the CIA that it once had of J. Edgar Hoover. The same House which voted overwhelmingly to block secret war in Angola does not have the courage to stand up for a committee which first alerted it to what was going on.
The House does not want to be drawn into new wars abroad by CIA and State Department machinations, but its members are afraid they may be accused of “spilling secrets” and “destroying our intelligence apparatus.” In a final appeal to the House March 9, Chairman Pike said Mitchell Rogovin, the special counsel the CIA has enlisted from left-liberal ranks, told his staff director after the committee voted to release its report:
Pike will pay for this, you wait and see. Any political ambition Pike has in New York is through. We will destroy him for this.
Rogovin denies he ever said this. If he made that threat, the CIA should be forced to fire him. There is not a member who voted for the report who did not fear just such retaliation when he next comes up for election. Hoover’s power rested on congressional fear of what he might have in his well-packed dossiers and on the FBI’s success in self-glorifying publicity. Hoover made himself almost entirely immune to criticism in Congress and the press. The same processes are at work now for the CIA, and will be given momentum if Schorr can be made an object lesson.
Let us listen to the despairing summary Pike gave on the House floor that day. He said neither “sources” nor “methods” nor “national security” were jeopardized by his committee’s cautiously worded and heavily sanitized report. What the agencies fear, he said, is embarrassment and shame. “The basic thrust,” he declared,
of our report is that despite the billions of dollars we expended on it, despite the genius of the scientists who work in our intelligence community and the dedication and occasional bravery of the men working within our intelligence community, despite its occasional small successes, in every single instance in which we compared what our intelligence community was predicting with what really happened, our intelligence community failed.
This is the truth the report would officially establish, and this is why it must be kept from official release.
April 1, 1976
McClory’s speech was billed in the Congressional Record as “A Serious Question Relating to the Authority and Reputation of the House Select Committee on Intelligence and to this House of Representatives as an Institution.” The discussion begins at page H289 of the Record for January 26 and runs through page H302. ↩
The committee had four Republicans, but the fourth, James P. (Jim) Johnson of Colorado, voted consistently with the Democratic majority, and was one of the only three members (along with Dellums of California and Lehman of Florida) who were for outlawing “dirty tricks” altogether. ↩