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 par excellence."

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," Donner says.

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, sir?

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 to respond.

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 and Nixon.''

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 confrontation.''

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 the process.

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 believe that."

Challenging the Secret Government

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