THE PEOPLE'S RIGHT TO KNOW: HOW MUCH OR HOW LITTLE?

THE PEOPLE'S RIGHT TO KNOW: HOW MUCH OR HOW LITTLE

A CONFLICT almost as old as democratic government itself is raging anew in Washington these days. The issue is the accessibility of information about Government operations. This conflict often pits the President and the Executive Branch against Congress, regulatory agencies against consumer interests, bureaucrats against environmentalists, Congress against the voter, the courts against the bar and, at times, the news media against all of them. At its highest levels, the pitch of the argument is tuned by public disquietude over the war in Southeast Asia, and by public concern lest new foreign undertakings, veiled in secrecy, lead to new military commitments, if not to new wars.

A current cliche from the political lexicon--"the people's right to know"--marks the battlefield but does not exactly illuminate it. This lofty phrase was first used a quarter of a century ago by the late Kent Cooper, then executive director of the Associated Press. "It means," he explained, "that the Government may not, and the newspapers and broadcasters should not, by any method whatever, curb delivery of any information essential to the public welfare and enlightenment." The Constitution, as it happens, does not provide for any such right. The courts, moreover, have never interpreted the First Amendment--which prohibits Congress from abridging freedom of speech or the press--as requiring the Government to make unlimited disclosures about its activities.

Delicate Activities. Indeed, an uncurbed "right to know" collides dramatically with what might be called "the right not to know." Ever since governments were first conceived by man, public officials have argued that certain delicate activities of the state were best conducted in secrecy--intelligence operations, for instance, or diplomatic dealings. In the U.S., specific provisions for secrecy have quite often been enacted by Congress, as in the acts establishing the Central Intelligence Agency and the Atomic Energy Commission. Congress has also allowed business enterprises the right to hold inviolate their trade secrets, processes and many other internal operations.

In addition, the courts have upheld the validity of legal strictures concerning the substantial privacy of federal income tax returns, the raw investigatory files of the FBI, testimony given to federal grand juries, the confidential nature of the doctor-patient relationship, and a host of other matters. More often than not, Presidents have been able to shield their personal subordinates and the internal papers of their Administrations from investigation by either Congress or the press on the grounds of "executive privilege."

Many historians, philosophers and journalists agree that there have to be certain checks on the unlimited right of the public to knowledge about its government. Clinton Rossiter, a leading historian of the presidency, counted executive secrecy in diplomacy an essential prerogative of a President. Columnist Walter Lippmann, in his classic The Public Philosophy, observed that only within an ideal society, where laws of rational order prevail, is there "sure and sufficient ground for the freedom to speak and to publish." Even James Russell Wiggins, former editor of the Washington Post and an articulate spokesman for press freedom, takes no unlimited view of "the right to know." While decrying the proliferation of governmental secrecy, he writes: "We can give up a little freedom without surrendering all of it. We can have a little secrecy without having a Government that is altogether secret. Each added measure of secrecy, however, measurably diminishes our freedom."

Secret Details. The question arises whether or not too many measures of secrecy have been imposed upon the conduct of public affairs in America. A case in point is the extraordinary number of military and diplomatic agreements the U.S. has made in recent years with an assortment of allies and satellites. Many of these treaties in disguise involve a vast expenditure of American money, and could commit the U.S. to aiding other countries if war broke out. More often than not, details of the commitments were kept secret from the American public until disclosed by inquisitive newsmen or equally inquisitive congressional investigators.

Consider Laos. It is no secret any longer that the U.S. is today deeply involved in an undeclared war there, allied with the supposedly neutralist government of Prince Souvanna Phouma against the North Vietnamese and the Pathet Lao. Yet only after Senator Stuart Symington's Foreign Relations Subcommittee looked into the matter, against the wishes of the State Department, did the American public learn in detail how U.S. aircraft based in Thailand were bombing northern Laos, the CIA was guiding the operations of Meo tribesmen, and the U.S. was providing millions in military assistance to Souvanna Phouma--all clear violations of the 1962 Geneva accords on Laotian neutrality.

Among the reasons for secrecy about Laos advanced by Deputy Assistant Secretary of State William Sullivan was that the U.S. wanted to avoid forcing the Russians into taking "official" cognizance of activities about which they knew only unofficially. Plaintively, Senator Symington suggested that the U.S. public had a valid interest in knowing what was going on in Laos, since "we could run into the same kind of escalation as we did in Viet Nam."

Symington's subcommittee also uncovered, for the first time, details of secret agreements with Ethiopia dating back to 1960, under which the U.S. has armed a 40,000-man army at a cost to the American taxpayer of $159 million. Although the extent of U.S. arms assistance to Emperor Haile Selassie is still cloaked by security, State Department officials admit that U.S. bombs and ammunition have been used against insurgent rebels and that U.S. military advisers supervise the training of Ethiopian troops. In defense of this agreement, Assistant Secretary of State David Newsom told the subcommittee that disclosures about Ethiopia had not been made because of "the great sensitivity" of the Emperor. Presumably, in State Department thinking, the "sensitivity" of the American public and Congress to this major diplomatic undertaking was of lesser importance.

Too Much "Exdis." Occasionally, the Government's concern for secrecy affects not only the public's right to know but its own efficiency of operation. When officials of the Water Pollution Control Administration flew to New Orleans recently to investigate a fire on an offshore oil drilling platform in the Gulf of Mexico, they discovered that the relevant papers had been locked up by the Interior Department's Geological Survey, which was responsible for supervising the drilling. A recent study of the State Department's operations found that too many reports from the field were being marked "exclusive" or "no distribution" ("Exdis" and "Nodis" in State lingo). As a result, so much current information is restricted to senior officials that the judgment of their subordinates is often irrelevant or out of date.

Information gathered at the taxpayers' expense is often kept secret for no better reason than apathy or red tape. When Dr. J.B. Rhine of Duke University, the noted expert on parapsychology, was asked recently to undertake some research for the Department of Defense, he agreed--but at the same time inquired why an 18-year-old study of his on the training of dogs to detect land mines had never been made public. Apparently, no one had bothered to declassify the material. A more pressing case of bureaucratic ineptitude involves the Atomic Energy Commission, which holds literally thousands of research papers and reports in classified storage. The material cannot be released because the commission cannot hire the personnel needed to declassify it--even though the reports would be of significance for the peaceful development of atomic energy.

The Government's predilection to do as much as possible in secrecy also affects domestic issues of fairly direct concern to the taxpayer. Environmentalists opposed to development of the SST, for example, have had difficulty gaining access to the so-called Garwin report, which is critical of the supersonic transport; the Justice Department claims that the report is a "presidential document" and thus not subject to forced release. Preparation of a national inventory on industrial wastes discharged into public waterways was blocked for seven years by the Budget Bureau under terms of a 1942 law designed to protect business from harassment by the wartime Office of Price Administration.

On a smaller scale, air travelers have had their "right to know" needlessly impaired by a relatively unnoticed act of Congress. It recently voted an increase in the tax on airline tickets to help finance the campaign against aerial hijacking, but in so doing also prohibited disclosure of the amount of a fare that goes toward taxes, thereby effectively hiding the size of the increase from the person who pays it. The Civil Aeronautics Board has accused the Senate Finance Committee of responsibility for this curious use of secrecy, even though the CAB has been guilty of some public-be-damned pettifoggery of its own. It recently authorized airlines to "round off" fares upward to the next dollar, which means that passengers are now paying, say, $41 for a ticket that formerly cost $40.10. This may be a modest windfall for the hard-pressed airlines, but the CAB has nonetheless authorized a disguised overcharge for air passengers.

In Sealed Envelopes. A few members of Congress have protested vigorously against the spreading cloak of governmental secrecy, notably Senator J. William Fulbright of Arkansas, who is concerned about national security affairs, and Senator Sam Ervin of North Carolina, who regards the proliferation of domestic intelligence activities as a serious threat to individual civil rights. It should be added, though, that the House and Senate are often less than candid about their own operations. The requirement that politicians report their campaign spending, for example, is honored more in the breach than the observance, since only a tiny fraction of funds actually spent in campaigns is noted for the public record. According to law, Senators are required to release public reports only on fees received for speeches, articles and television appearances. But detailed information on their business interests and outside income is kept secret, in sealed envelopes available only to a Select Committee on Ethics--made up of fellow Senators. Members of the House need not list publicly the amount or value of stock they hold in banks and savings and loan associations, or, if they are lawyers, the names of their clients. Though such activities potentially involve conflicts of interest, information about them is reported under seal and is available only to a House committee.

Congress has done relatively little to promote legislation aimed at information disclosure in the public interest. Inspired by an investigation of Government secrecy practices undertaken by California Democrat John Moss, Congress in 1966 did pass the Freedom of Information Act. This law attempted to liberalize and standardize public information and disclosure policies of Government agencies, and authorized citizen suits in federal court to enjoin such agencies from the improper withholding of records and procedures. At the same time, Congress specifically exempted a plethora of areas, such as national defense and foreign policy, where right-to-know arguments normally arise. So far, the effect of the law on the Government's information disclosure policies has been almost nil.

What can be done about the spread of secrecy in Government? For a start, Congress could investigate--as the Symington subcommittee recommends--the present use of the Espionage Act, various presidential directives and the "executive privilege," all invoked at times to justify unnecessary secrecy classification practices. Congress could beef up its pathetically weak investigatory and budget analysis staffs and strengthen the General Accounting Office--its agency for the policing of disbursement and use of appropriated funds. It could also cut back substantially on discretionary funds granted to the President for use abroad as he sees fit.

Colossal Mistake. It is unlikely, though, that legislation in and of itself would afford much of a cure to the ills of creeping secrecy. Considerably more important is a different approach by Government in all its branches and at all levels. The State Department could, and should, be far less bending to the secrecy pleas of allied and client governments in such matters as disclosing long-secret U.S. special bonuses and other payments for Thai, Korean and Philippine forces sent to Viet Nam.

The Defense Department should be ordered to stop penalizing employees who disclose facts of cost overruns and mismanagement to congressional committees in such matters as the F-111 and C-5A aircraft contracts. The White House could and should be more forthright in its disclosures of military operations and diplomatic agreements, such as those in Laos. The news media, moreover, could better serve the public interest by being less considerate of the sensibilities of Government officials who try to manage the news. Reporters might well remember President John Kennedy's comment to New York Times Editor Turner Catledge, whose paper had practiced a dutiful self-censorship in not reporting the imminence of the Bay of Pigs invasion: "If you had printed more about the operation," Kennedy said ruefully, "you would have saved us from a colossal mistake."

What is necessary, above all, is a redressed balance in the approach of Government to the public. Secrecy is all too often used as an easy cover for operational failures, as a mask for individual or collective mistakes in policymaking, as a shield for actual wrongdoing and as a cloak to hide the undertaking of new and often costly commitments. In part, the prevalence of covert dealings indicates that the different branches of Government simply do not trust one another very much these days. Can an atmosphere of greater confidence within the Government be achieved? Fortunately there is a pattern. It was little more than 20 years ago that a Democratic Administration under Harry Truman and key Senate Republicans led by Arthur Vandenberg of Michigan established a remarkable, non-partisan relationship of trust that permitted such historic undertakings as the Marshall Plan and the NATO treaty, and gained for them widespread public support. This kind of open policymaking can be done again, but only through more and continued emphasis on full, non-self-serving disclosures. Only thus can increased confidence and tranquillity between those who govern and those who are governed be found. Total and complete disclosure, particularly in dangerous times, represents an impossible dream. But excessive secrecy is a contagious disease that could be fatal to the practice of modern democracy itself.

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