Challenging the System
excerpted from the book
Challenging the Secret Government
The Post-Watergate Investigation
of the CIA and FBI
by Kathryn S. Olmsted
University of North Carloina
Press, 1996, paper
Above all, [Otis] Pike developed an agenda for his intelligence
investigation that was hailed by friends and foes alike as more
substantive and rigorous than that of Church's committee. Instead
of focusing on CIA and FBI abuses, Pike led an inquiry that examined
the systemic problems of the intelligence community. He wanted
to know the answers to three questions. How much does our intelligence
community cost us? How well does it perform its job? And what
risks does it pose?
In Pike's view, he and his committee were finally assuming the
constitutional responsibilities that their colleagues had shirked
for years. When Lee suggested that previous committees had not
insisted on this right of unilateral declassification, Pike lectured
the bureaucrat in stentorian tones that resounded throughout the
committee room: "That is exactly what is wrong, Mr. Lee.
For decades, other committees of Congress have not done their
job, and you have loved it in the executive branch. You tell us
that Congress has been advised of this. What does that mean? It
means the executive branch comes up and whispers in one friendly
Congressman's ear or another friendly Congressman's ear, and that
is exactly what you want to continue, and that is exactly what
I think has led us into the mess we are in."
Pike's eloquent outrage inspired several
other committee members to defend the "people's right to
know." Moderate Democrat Morgan Murphy compared the situation
to Watergate. "I hear the same argument I heard in the defense
of President Nixon," he told Lee. "He has a right to
keep things secret, he has a right not to turn over tapes, and
he has a right not to turn over documents. But I thought the Supreme
Court settled that matter."
Pike dramatically presented the issue
as a fight between secrecy and democracy. Apparently, he said,
the CIA "would simply prefer that we operated in a dictatorship
where only one branch of the Government has any power over secrecy.
I simply submit to you that that is not the way I read the Constitution
of the United States."
The battle had begun. On one side, angry
congressmen believed that the executive was just "looking
for excuses" to attack an assertive committee, in Otis Pike's
words. Disgusted by their colleagues' failures during the Johnson
and Nixon presidencies, these House members were determined to
reestablish a proper balance between the branches of government
and to tame the imperial presidency. On the other side, an appointed
president was equally determined not to allow any weakening of
what he viewed as the chief executive's constitutional prerogatives.
As Rogovin says, "Pike challenged the president's men, and
they weren't going to be challenged."
Over the next ten days, the situation
escalated into "the most serious constitutional confrontation
between the legislative and executive branches since the Watergate
scandal," according to the New York Times.
Kissinger's State Department was a much more dangerous adversary
for the committee than Colby's CIA. At the time, Kissinger wore
two hats as secretary of state and national security adviser.
He was highly regarded by a large proportion of the public: he
had been the diplomatic wizard behind Nixon's rapprochement with
China, the first Strategic Arms Limitation Treaty (SALT), and
the secret Paris peace talks. Many Americans viewed Kissinger
as an indispensable holdover from the Nixon administration whose
presence ensured continuity in American foreign policy.
Kissinger also enjoyed the best press
relations of any post-World War II American policymaker. His talent
for cultivating the Washington press corps was legendary; he spent
as much as half of each working day in conversation with reporters.
He rewarded those reporters who made him look good and exploded
in rage at those who did not. His flattery of influential reporters
and columnists, along with his willingness to share insights and
return phone calls, helped to project an image that was envied
by the presidents he served. In one week in 1972, for example,
after Nixon revealed Kissinger's secret trips to Paris, Time called
the secretary a "brilliant" policymaker with "diverse
talents, energy and intellect," while Newsweek glorified
the "skilled and cool negotiator" who was also an "intellectual
Pike, by contrast, was far from adept
at generating favorable press coverage. Neither he nor any of
his committee members could rival Kissinger's access to key columnists
and editorial writers. Nor did Pike share Senator Church's talent
for grabbing the press's attention with concrete, sensational
examples of abuses. The House committee did not even have a press
secretary; the overworked and inexperienced chief of staff handled
all queries from reporters. In this battle for media opinion with
one of the biggest media stars of the postwar period, Otis Pike
and his committee were seriously overmatched.
Kissinger quickly began to rally his friends
in the press. Aaron Donner, the chief counsel of the Pike committee,
received a phone call from Times columnist James "Scotty"
Reston shortly after the committee challenged Kissinger. "This
is Scotty Reston of the Times," the celebrated journalist
bellowed into the phone. "What the hell are you guys doing
down there? Are you reviving McCarthyism?" Kissinger, a close
friend of Reston's, had apparently convinced the columnist and
others in the press that the committee was unfairly attacking
the State Department. "It was obvious [Reston] started out
with a full head of steam, and someone had stoked the fires,"
Someone had stoked the fires at the editorial
boards as well. The prestige newspapers were unanimous in condemning
the committee. On 28 September, the New York Times editorial board
turned against the Pike committee permanently. Charging that Pike
was "hip-shooting toward some high noon in a federal courtroom,"
the Times lectured the chairman that a "less emotional and
more patient approach to the administration's recalcitrance"
was needed. The Washington Post, the celebrated antagonist of
presidential secrecy, supported Ford and Kissinger against the
committee. The Washington Star started a trend with its headline
accompanying a critical editorial; "Pike's Pique" captured
the media's increasingly predominant image of the chairman as
overly zealous, impatient, irrational, and even childish.
Undeterred by an increasingly negative press, the committee voted
on 2 October to subpoena the Boyatt memorandum. Kissinger and
his defenders responded by intensifying the public relations campaign
against the committee. The dean of U.S. foreign policy during
the Cold War, George Kennan, wrote the Washington Post that Kissinger
had "no choice" but to refuse the committee's demands.
More than 200 middle-ranking foreign service officers signed a
letter supporting the secretary and his contention that the committee
was indulging in McCarthyism. "The Foreign Service is just
now-after 20 years-overcoming the legacy of that bitter question:
'Who lost China?' " the letter said. "Some of us recall
the fate of those of our colleagues who were swept up-and away-
in the debate."
This allusion to an earlier, now discredited
period of congressional assertiveness proved to be a powerful
weapon against Pike. Kissinger had not pioneered the use of the
McCarthy analogy against the investigators. Since the start of
the inquiry, journalists had accused Seymour Hersh of using "McCarthyite"
tactics, compared Daniel Schorr to the reporters who had disseminated
McCarthy's allegations, and charged the two committees with destroying
the CIA as McCarthy had wrecked the State Department. These attacks
had been isolated and infrequent, however. Now, with Kissinger's
encouragement, pundits on the op-ed pages frequently compared
the Pike committee members to the reckless and destructive late
senator from Wisconsin.
A few parallels did exist between the
Pike committee investigation and the anticommunist crusades of
the 1950S. The Pike committee members, like Joseph McCarthy, were
demanding secret documents from the executive branch. Moreover,
the committee was attacking the CIA, as McCarthy did in the last
days before his fall.
But the two inquiries had many more differences
than similarities. The Pike committee was not forcing anyone to
testify. The members wanted to understand the connection between
intelligence and policymaking in the State Department, not ruin
the careers of low- and middle-ranking foreign service officers.
Furthermore, the committee majority's ideology could not have
been more different from the red-baiters of twenty years before.
Indeed, in many cases the critics who compared the Pike inquiry
to McCarthyism were the very people who had supported McCarthy,
at least for a while, in the 1950S. One could even say that McCarthy
had helped to create the practices that the committee was now
condemning; the McCarthyite hysteria, after all, had encouraged
the FBI and the CIA to use any methods necessary to fight the
Communists. But these distinctions were lost in the press coverage.
Kissinger's friends in the press, such
as New York Times columnist James Reston, applauded the secretary
for standing firm against congressional attempts to usurp executive
prerogatives. The current secretary of state would never follow
"John Foster Dulles's example of throwing staff officers
to his critics," Reston wrote. This particular staff officer's
desire to be thrown to Congress was lost in the hyperbole.
The editorial page of the New York Times,
which had once lauded the investigators, now joined the chorus
of voices comparing the investigation to a witch-hunt. In an editorial
headlined "Neo-McCarthyism?," the paper declared that
the committee's insistence on seeing the Boyatt memorandum was
"clearly contrary to the national interest." In refusing
to let Boyatt testify, Kissinger was upholding the "responsible"
principle that policymakers, not lower-level assistants, should
be held accountable for their decisions.
The confrontation between Kissinger and
the committee reached a climax on 31 October when the secretary
appeared in person before the committee. Kissinger repeated a
compromise offer he had made previously: the committee members
could examine a summary of Boyatt's memorandum, amalgamated with
other documents, but they could not examine the memo itself. Pike
was disgusted. "The best evidence of what Mr. Boyatt said
is not your summary of it, or anybody else's summary of it,"
he told Kissinger. "It is what Mr. Boyatt said." Pike
declared that the committee had a legal and moral right to review
the document and that, at any rate, Boyatt himself had no objections.
McClory lent the minority's support to Pike's demands. But Kissinger
retorted that he could not allow the committee to set a precedent
that future committees might abuse.
During the hearing, Kissinger dueled with
committee members to win public relations points. Congressman
Dellums, seeking to explain the committee's reasons for targeting
the secretary, launched into a long harangue:
You occupy practically every position
of importance in the 40 Committee structure. You are Special Assistant
to the President for National Security Affairs. You are also Secretary
of State. We have testimony that you have participated in directing
operations which were not fully discussed, analyzed, or evaluated
by those authorized to do so. In fact, sometimes they were purposefully
hidden. You have been involved in wiretaps of employees.... You
now refuse information to Congress on a rather specious basis.
Frankly, Mr. Secretary, and I mean this very sincerely, I am concerned
with your power, and the method of your operation, and I am afraid
of the result on American policy, and I believe the direction
of operations outside the National Security Council and the full
40 Committee may indeed be contrary to law. Would you please comment,
Kissinger paused artfully. "Except
for that," he asked Dellums with a wry smile, "there
is nothing wrong with my operation?"
The room broke up in laughter. Television
audiences that evening saw the image of the clever cabinet official
besting the humorless, abrasive congressman. Once again, the Pike
committee members had lost an opportunity to communicate their
side of the story to the public. Even though Republican committee
members and some presidential advisers did not support Kissinger's
crusade to keep the Boyatt memo from the committee, the master
of the media knew how to impress a more influential audience:
the press. The politically savvy Frank Church might have been
able to blunt Kissinger's attack, but Otis Pike and his members
were overwhelmed by the secretary's superior skills in media manipulation.
The CIA, the National Security Agency, and the Defense Intelligence
Agency all agreed to supply the documents. But the executive branch
at first refused to comply fully with the three subpoenas directed
to the State Department and the National Security Council-in other
words, those addressed to Kissinger. The committee could respond
by negotiating with Kissinger, or, alternatively, it could first
ask the House to cite Kissinger for contempt, then negotiate from
a position of strength. The committee had taken the latter approach
successfully with William Colby, but a majority had refused to
take a hard-line approach with Kissinger over the Boyatt memorandum.
This time, however, Kissinger was refusing
to provide a different type of document: the recommendations of
policymakers, not just those of a lower-level analyst like Boyatt.
Moreover, the administration had not offered the committee any
alternative. At least with the Boyatt memo, the State Department
had promised to deliver an "amalgamated" document containing
Boyatt's words. Given these differences, an overwhelming majority
of the committee now decided to recommend that the House initiate
contempt proceedings against the secretary.
Two of the proposed contempt citations,
which the committee passed by a 1O-2 vote, concerned Kissinger's
refusal to provide documents necessary for determining who had
proposed and approved covert operations. One subpoena, addressed
to the national security adviser, requested the records of the
special National Security Council group charged with approving
covert actions (called the 40 Committee in the Nixon administration).
The other, addressed to the secretary of state, asked for State
Department requests for covert operations.
The final contempt citation condemned
Kissinger in his role as national security adviser for failing
to furnish documents on arms control verification. A former member
of the Joint Chiefs of Staff, Admiral Elmo Zumwalt, had charged
Kissinger with ignoring evidence of Soviet cheating on the SALT
agreement to protect detente. These were serious accusations-essentially
charges of treason-and the committee voted 10-1, with only McClory
in opposition, to cite Kissinger for contempt for his refusal
The administration appeared stunned by
the committee's swift action and moved quickly to compromise on
the two subpoenas addressed to the national security adviser.
The White House claimed that the subpoenas had been imprecisely
worded and, even more important, improperly addressed to Kissinger.
After all, Ford advisers argued, Kissinger had been removed as
national security adviser two weeks before, and his successor
had not yet been sworn in. It was unclear whether White House
aides had suffered from genuine bureaucratic confusion during
the transition, or whether they had deliberately exploited the
situation to delay responding. Now that they were faced with contempt
citations, the president's advisers scrambled to find the remaining
SALT compliance documents and to invite the committee members
to the White House to examine the subpoenaed 40 Committee records
(without surrendering them to the committee's custody). Pike and
his committee agreed that these White House actions amounted to
"substantial compliance" with the two subpoenas.
But on the third subpoena, President Ford
made the surprising decision to invoke executive privilege for
the first time since Richard Nixon had occupied the Oval Office.
The State Department documents on covert action, Ford declared,
"revealed to an unacceptable degree the consultation process
involving advice and recommendations to Presidents Kennedy, Johnson
Memos from the president's aides suggest,
however, that Ford was more concerned with the abstract principle
of defending executive privilege than with protecting these particular
documents. Jack Marsh advised the president that a battle with
Congress over executive privilege was inevitable; therefore, the
president should aim to provoke a confrontation in a dispute the
White House was sure to win. The Pike committee subpoena, in Marsh's
view, provided just such an opportunity.
The administration hoped to humiliate
the committee on the House floor, thus upholding executive privilege
without resorting to the courts. Administration officials began
their campaign by working to turn public opinion against the investigators.
Kissinger declared that the committee's action would "raise
serious questions all over the world of what this country is doing
to itself and what the necessity is to torment ourselves like
this month after month.'' In a major speech in Detroit, he called
on Americans to end "the self-flagellation that has done
so much harm to this nation's capacity to conduct foreign policy.''
Other officials spread the message that an attack on Kissinger
was an attack on America's international image. One Kissinger
assistant told the press it was "unbelievable" that
the committee would cite the secretary "on the eve of an
important summit meeting, two weeks before a Presidential visit
to China and less than a month before a major NATO meeting.''
The globe-trotting secretary, the man who represented the United
States in Moscow and Beijing, was too important to bother with
what he called the "frivolous" requests of Congress.
Kissinger's friends in the press once
again leaped to his defense. The Los Angeles Times invoked the
popular image of McCarthyism; the Tulsa Daily World called Pike
a "spoiled child" and "small-minded egotist"
who was recklessly encouraging the worst tendencies of the "power-happy
and irresponsible Legislative Branch.'' William Safire declared
that Pike was assaulting the constitutional balance of powers.
One of the most fervent defenses of executive
privilege came from the newspaper partly responsible for Congress's
newly acquired confidence: the Washington Post. Nixon's onetime
nemesis declared that the committee had acted with "abandon"
and called the contempt citation "unnecessary and unwise."
The newspaper chastised the committee for its attempt to "invade
the President's prerogative to conduct foreign policy" and
intrude upon "the legitimate powers of the office of the
Presidency." The committee, in the Post's view, was irresponsible.
"In its zeal, the Pike committee-unlike its Senate counterpart-has
brushed by the time-tested 'political' ways in which responsible
standing committees can and do gain access discreetly to material
which would not be forthcoming in the context of a hostile political
The Post editorial amazed liberal columnist
Anthony Lewis. The newspaper had "fought the Presidential
mystique so bravely in Watergate," he wrote. Why did it now
defend presidential secrecy? The only way to understand the Post's
inconsistency, Lewis said, is to "conclude that Henry Kissinger
operates much more effectively among the Washington press than
either of his presidents.''
By focusing on the Pike committee's confrontations with Kissinger
and the president, the press slighted the House investigators'
substantive accomplishments. Beyond the headlines, the committee
had made some remarkable discoveries. The critical issue in the
intelligence investigations was the extent of the president's
control over the CIA. Was it a rogue elephant, as Senator Church
maintained, or merely a tool of the presidency? Was the solution
to give the president more power over the runaway CIA or to find
some way to rein in the runaway presidency ?
After the last fight with Kissinger, the
Pike committee members were finally allowed to examine the documents
that would help resolve this question. In an inquiry unprecedented
in Congress and the executive branch, the committee asked: Who
originally proposed covert actions? What types of covert action
were used the most? And who ultimately approved those actions
The 40 Committee was formally charged
with discussing and approving covert actions. But the Pike committee
discovered that the 40 Committee approval process was often "relatively
informal, extraordinarily secretive, and pro forma." The
group did not even meet during 1973 and 1974; all approvals were
done "telephonically." This allowed the CIA chief and
Kissinger, who served as chairman of the 40 Committee, to dominate
Ironically, the most significant revelation
about covert action approval came from Kissinger himself In his
appearance before the Pike committee, pressed by the toughest
questioning he had ever faced on Capitol Hill, Kissinger demolished
the doctrine of "plausible denial." For years, presidents
had insulated themselves from the negative repercussions of U.S.
covert actions by denying responsibility for them. But, in an
apparent attempt to minimize his own role, Kissinger told the
Pike committee that every covert action undertaken in recent years
had been approved by the president himself. To save his own skin,
the powerful secretary had given the first authoritative confirmation
of the president's true power over the CIA. As Pike told his committee,
"One of the things that we have learned as we have progressed
down this road is that the CIA does not go galloping off conducting
operations by itself.'' The CIA, he concluded at another hearing,
"was no rogue elephant.'' The committee's final report was
even more damning: "All evidence in hand suggests that the
CIA, far from being out of control, has been utterly responsive
to the instructions of the President and the Assistant to the
President for National Security Affairs.''
This indictment of the presidency was
potentially more alarming than any of the abuses uncovered by
the Church committee. If the CIA truly acted on its own, then
reforms, though difficult, would be relatively straightforward:
the president would simply need more control over the agency.
But the Pike committee concluded that the presidency, rather than
the CIA, needed to be reformed. And an imperial presidency is
much more difficult to change than a rogue elephant.
By finding "the presidency"
rather than "the president" at fault, the Pike committee
resurrected the problems that Congress had tried to bury after
Nixon resigned. The Pike committee concluded that many abuses
were not merely the fault of Richard Nixon or certain individuals
at the CIA; instead, all presidents could abuse their power by
using the secret tools at their disposal. Otis Pike realized that
this conclusion threatened some of the deepest beliefs of the
American public. In Watergate, he said, the American people were
asked to believe that "their President had been a bad person.
In this situation they are asked much more; they are asked to
believe that their country has been evil. And nobody wants to
the Secret Government