Washington cover-up

November 12, 1958

Hon. Dwight D. Eisenhower,
President of the United States,
Washington, D.C.

Dear Mr. President: I just returned to Washington for a hearing of the Government Information Subcommittee. The subcommittee, I understand, will inquire into the matter of General Accounting Office access to Air Force Inspector General’s reports. In that context, my attention has been directed to your press conference comments of November 5, and to some newspaper speculation about those comments.

The text of your remarks to which I refer is as follows:

“Q. (Clark R. Mollenhoff, Des Moines Register). Mr. President, you have mentioned the spending in the Defense Department here as one of the important issues, and the General Accounting Office, which is the watchdog on frauds and extravagance in the various agencies, has been barred from reports over in the Air Force and the Defense Department generally, and on this they claim that they have authority from you to withhold reports any time it is ‘inexpedient to do so.’

“I wonder if you have given that authority and if you feel that the GAO should have a full rein to go in and investigate all indications of fraud and extravagance.

“The President. You are obviously talking about some special thing that I would have to study before I could make—give an answer.

“I have stated this time and again: I believe that every investigating committee of the Congress, every auditing office, like the GAO, should always have an opportunity to see official records if the security of our country is not involved.

“Q. (Clark R. Mollenhoff, Des Moines Register). Well, they claim this, Mr. President, under executive privilege.

“The President. No, that’s all I have to say—I told you that is all I had to say for the moment.”

While this question-and-answer exchange did not identify Inspector General reports, and while you did preface your comment by saying this obviously referred to some special thing you would have to study before giving an answer, I would nevertheless like to ask this: Did you mean to imply by your comments that the complete text of Inspector General reports, including recommendations, be made available to Congress and the General Accounting Office?

Respectfully,
Clare E. Hoffman

THE WHITE HOUSE,
Washington, November 12, 1958.

Hon. Clare E. Hoffman,
House of Representatives, Washington, D.C.

Dear Mr. Hoffman: Thank you for your letter inquiring about comments in my November 5 press conference.

I believe, of course, that the public, the Congress, and such auditing units as the General Accounting Office should have all the information departments and agencies can properly make available. However, the public interest also demands order and efficiency in the operation of these departments and agencies. And in my judgment the public interest is not necessarily served by divulging the advice, suggestions, or recommendations which subordinate employees periodically make to their superiors. In this connection, recommendations of inspectors general have been a most useful advisory tool in administering the military departments; and historically, recommendations and other advisory matter in such reports have not been released. I think this practice is a correct one, and is in the best interest of the Nation. At the same time, I want to add that the facts are distinct from advice and recommendations in these reports. It is my understanding that all the facts developed in the inspector general’s report to which you refer are being made available at the request of the General Accounting Office.

Sincerely,
Dwight D. Eisenhower

United States General Accounting Office,
Office of General Counsel,
Washington, D.C., November 4, 1958.

The basic statutory authority of the Comptroller General for access to records of departments and agencies is set forth in section 313 of the Budget and Accounting Act, 1921 (31 U.S.C. 54). Section 313 provides:

“All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of his assistants or employees, when duly authorized by him, shall, for the purpose of securing such information, have access to and the right to examine any books, documents, papers, or records of any such department or establishment. The authority contained in this section shall not be applicable to expenditures made under the provisions of section 291 of the Revised Statutes.”

It will be noted that the only exception in section 313 relates to expenditures made under section 291, Revised Statutes (31 U.S.C. 107), which authorizes the Secretary of State to account for certain confidential expenditures in connection with intercourse or treaties with foreign nations by certificate where, in his judgment, he may think it advisable not to specify the details of such expenditure. Since that is the only exception stated and following the legal maxim that the specific setting forth of one type of exception precludes others from arising, it seems clear that the Comptroller General may require, and the departments are required to furnish, documents, etc., as to any other transaction or activity. Also, the language of section 313 itself [except as to the expenditures under 291 R. S.] in requiring the departments to furnish such information as the Comptroller General “may require of them” and its requirement that he be given access to any documents of the departments, clearly gives him access to all such documentation. If he has access to any document, he has access to all. The legislative background of the Budget and Accounting Act, 1921, makes no qualification as to what records can be required; the provision itself apparently being considered sufficiently specific. The legislative reports do bring out that one of the principal functions of the Comptroller General is to enable the Congress to be kept advised as to expenditures of the Government, and that the Comptroller General is expected to criticize extravagance, duplication, and inefficiency in executive departments. There is no doubt, in passing the act, the Congress did not intend that the executive agencies could, or would, withhold any books, documents, papers, or records needed by the Comptroller General. Otherwise, the very purpose of the act would be nullified.

The authority and duty of the Comptroller General was amplified by section 206 of the Legislative Reorganization Act of 1946 (31 U.S.C. 60), which authorized and directed him to make expenditure analyses of each agency in the executive branch of the Government which “will enable Congress to determine whether public funds have been economically and efficiently administered and expended” and to make reports thereon from time to time to the Committees on Government Operations, and Appropriations and other committees having jurisdiction over legislation relating to the operation of the agencies involved. The work of the Comptroller General, together with the activities of the Committees on Government Operations, were to serve as a check on the economy and efficiency of administrative management. See pages 6 and 7, Senate Report No. 1400 on the Legislative Reorganization Act of 1946.

The Congress has also directed that the Comptroller General in performing his duties give full consideration to the administrative reports and controls of the departments and agencies. The Government Corporation Control Act specifically provides in section 301 (a) (31 U.S.C. 866), “That in making the audits ... the Comptroller General shall, to the fullest extent deemed by him to be practicable, utilize reports of examination of Government corporations made by a supervising administrative agency pursuant to law.” The legislative reports on that act, Senate Report 694, page 10, contains the following significant language:

“The audit provisions are intended to give the Congress the independent audit reports of its agent, the Comptroller General, as to the operations and financial condition of every Government corporation in which the Government has a capital interest.... If the audit by the Comptroller General is to be a truly independent audit, he must not be restricted in such a way as to prevent him from examining into and reporting the transactions of any Government corporation to the extent deemed by him to be necessary.

“The Comptroller General has stated that in making his audits he will give full consideration to the effectiveness of the existing systems of internal accounts, procedures, and controls and of external examinations by an administrative supervisory agency. The bill includes a specific provision requiring the Comptroller General in making his audits to utilize, to the fullest extent deemed by him to be practicable, reports of examinations of Government corporations by a supervising administrative agency pursuant to law.”

The Budget and Accounting Procedures Act of 1950 requires each executive agency to maintain systems of accounting and internal control and provides, in section 117 (a) (31 U.S.C. 67 [a]), that the Comptroller General in determining auditing procedures and the extent of examination to be given accounts and vouchers give consideration to “the effectiveness of accounting organizations and systems, internal audit and control, and related administrative practices of the respective agencies.”

The Comptroller General is required to audit the activities of the executive departments and agencies; to make expenditure analyses to determine whether funds have economically been expended; and to give consideration to the departments’ internal audit and control and related administrative practices. To perform these duties he is given the clear statutory authority to require information of the departments and agencies regarding their organization, activities, and methods of business, coupled with the right to access to any books, documents, papers, or records of any such establishment (except as to the confidential State Department funds).

There have been no court cases construing the statutes giving the Comptroller General access to records. However, in 1925, the Attorney General in an opinion to the Secretary of War (34 Op. Atty. Gen. 446), concerning a request by the Comptroller General for information relative to an award of a contract showing that the lowest bid was accepted, or if otherwise, a statement for the reasons for accepting other than the lowest bid, advised, in part, as follows:

“It will be observed that the Comptroller General states that this requirement is made necessary in order that a satisfactory audit may be made. What papers or data he should have to make such an audit would seem to be a matter solely for his determination. Moreover, section 313 of the Budget and Accounting Act provides (p. 26):

“All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of his assistants or employees, when duly authorized by him, shall, for the purpose of securing such information, have access to and the right to examine any books, documents, papers, or records of any such department or establishment....”

Questions as to whether the General Accounting Office has a right to access to records claimed to be confidential for security or other reasons have arisen from time to time and the General Accounting Office has always taken the position that it has the right to the information, even though certain provisions of law relating to disclosure might be applicable to it.

The General Accounting Office recognizes that certain of the functions of the inspectors general, such as criminal and personnel investigations, are of a confidential nature and it will normally accept summaries of facts contained in such reports to the extent they are needed in connection with its work. However, the inspectors general also have as a part of their respective missions and duties responsibility for conducting inspections, surveys, and examinations of the effectiveness of operations and overall efficiency of a command, installation, or activity. These functions may be performed on a periodic or special basis as directed by competent authority. The performance of these functions constitutes an important part of the process of management evaluations and internal reviews as distinguished from criminal or personnel investigations. They provide officials and appropriate personnel of authority with an independent appraisal of the effectiveness of operations and overall efficiency. Moreover, a very considerable part of the inspections and reviews made by the inspectors general involve reviews of procedures and policies and as such are an important segment of the internal reviews and control which the General Accounting Office, under section 117 (a) of the Budget and Accounting Procedures Act of 1950 is required to consider and recognize in determining the audit procedures to be followed in its reviews.

The scope of inspection and survey programs of the inspectors general is similar in character to much of the work the General Accounting Office has scheduled in requirements, procurement, supply management, and research and development areas. The programs of the Deputy Inspector General for Inspection of the Air Force covering the period July 1, to December 31, 1958, include (1) a survey of Air Force procurement methods (advertising versus negotiation); (2) a survey of procurement quantitative and qualitative program changes; (3) a survey of procurement of commercial communications and utility services; (4) a survey of contract cost overruns; (5) a survey of maintenance programs; (6) a survey of modification programs; (7) a survey of the application of electronic data processing systems and other like subjects. All of these subjects represent internal and management evaluations which would clearly be a part of “internal audit and control” within the meaning of section 117 (a) of the Accounting and Auditing Act of 1950. It is essential that such reports be made available to the General Accounting Office in order that it can evaluate the effectiveness of the department’s system of internal control and to preclude unwarranted and unnecessary duplication of effort in the internal audit and the independent review made by this Office. The Air Force Inspector General’s report on the ballistic missiles program clearly falls within the term “internal audit and control.”

The Secretary of the Air Force in refusing the Comptroller General access to the Inspector General’s report on the ballistic missiles program stated that the Inspector General’s reports are prepared solely for the use of responsible officials within the Air Force, and that the objective of self-criticism can be obtained only if the Inspector General’s organization has the assurance that its reports will, without exception, be kept within the Department. The Secretary also stated that the report in question concerned the internal management of the Department, and was prepared solely for the benefit and use of those officers and employees of the Department who are responsible for its administration, and that the release of such reports to persons outside the Department would have a serious effect on the effective administration of the Department. The Secretary concluded that these considerations compelled him to conclude that the public interest would best be served by not releasing the report.

It is our understanding that the position of the Secretary is premised on paragraph 151 (b) (3) of the Manual for Courts Martial (1951) which was prescribed by the President on February 8, 1951, through Executive Order 10214, pursuant to the act of May 5, 1950 (64 Stat. 107), and on the general basis that the heads of executive departments have the right to withhold information or papers which they deem confidential, in the public interest.

The Manual for Courts Martial, 1951, Executive Order 10214, dated February 8, 1951, was issued pursuant to article 36 of the act of May 5, 1950 (64 Stat. 120). Article 36 (a) provides:

“The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he deems practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which shall not be contrary or inconsistent with this code.”

Article 151 (b) (3) of the Manual for Courts Martial provides:

“The Inspectors General of the various armed forces, and their assistants, are confidential agents of the Secretaries of the military or executive departments concerned, or of the military commander on whose staff they may be serving. Their investigations are privileged unless a different procedure is prescribed by the authority ordering the investigation. Reports of such investigations and their accompanying testimony and exhibits are likewise privileged, and there is no authority of law or practice requiring that copies thereof be furnished to any person other than the authority ordering the investigation or superior authority. However, when application is made to the authority by court-martial certain testimony, or an exhibit, accompanying a report of investigation, which testimony or exhibit has become material in a trial (to show an inconsistent statement of a witness, for example), he should ordinarily approve such application unless the testimony or exhibit requested contains a state secret or unless in the exercise of a sound discretion he is of the opinion that it would be contrary to public policy to divulge the information desired.

“In certain cases, it may become necessary to introduce evidence of a highly confidential or secret nature, as when an accused is on trial for having unlawfully communicated information of such a nature to persons not entitled thereto. In a case of this type, the court should take adequate precautions to insure that no greater dissemination of such evidence occurs than the necessities of the trial require. The courtroom should be cleared of spectators while such evidence is being received or commented upon, and all persons whose duties require them to remain should be warned that they are not to communicate such confidential or secret information....”

Since the Manual for Courts Martial was issued pursuant to the authority of the President to prescribe procedure for such trials, and Article 151 (b) MCM by its language is addressed to procedures of such courts, it obviously does not affect access by the General Accounting Office to Inspector Generals reports determined by the Comptroller General to be necessary to the performance of his work, particularly where the report requested is not one dealing with personnel or criminal investigations.

Air Force Regulation 120-3, paragraph 9, October 11, 1954, and similar regulations provide:

“Disclosure of or access to matters pertinent to an inquiry or investigation will be limited to persons whose official duties require such knowledge. The Manual for Courts Martial, 1951, states that inspector-general investigations are privileged information. The same privileged status applies to inquiries and investigations conducted under this Regulation. Also paragraph 3, AFR 190-16, 29 July 1954, excludes investigative reports and reports of inspectors general and base inspectors from release to the public as information. Reports by investigators will not be released or disclosed outside the Air Force without approval of the Secretary of the Air Force.”

Presumably these regulations were issued pursuant to section 161, Revised Statutes, title 5, United States Code, section 22, or similar authority, authorizing the head of a department to issue regulations, not inconsistent with law, for the conduct of his department and the custody and use of its records. Since under section 313 of the Budget and Accounting Act the Secretary is required to give the Comptroller General access to the records, any construction of the Air Force regulation denying the Comptroller General access is improper, and the regulation to that extent, being inconsistent with law, has no effect.

With reference to the right or privilege of the head of the “Executive” branch of the Government to refuse to the legislative and judicial branch of the Government free access to records in the custody of the executive departments, support for such claim of right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty. Gen. 45, and cases referred to therein.

Assuming, arguendo, that such right or privilege does exist, we do not believe it warrants an executive agency denying to the Comptroller General information or access to its documents in view of section 313 of the Budget and Accounting Act which clearly provides that “all departments ... shall furnish ... information ...” required by the Comptroller General and that he shall have “access to and the right to examine any ... documents of any such department....” The opinion of the Attorney General in 1925, 34 Op. Atty. Gen. 446, discussed earlier, clearly recognizes the prerogative of the Comptroller General to determine what papers he should have to enable him properly to perform his audits and that the departments are required to furnish them.

The right or privilege asserted from time to time by the executive branch was considered in a study by the staff of the House Committee on Government Operations entitled “The right of Congress to obtain information from the Executive and from other agencies of the Federal Government,” committee print dated May 3, 1956, and in great detail by the House Committee on Government Operations in connection with Public Law 85-619 approved August 12, 1958, as were the court cases cited and relied upon by the Attorney General. See House Report No. 1461, 85th Congress, 2d session. Also, there was there considered a line of later decisions starting with McGrain v. Daugherty, 273 U. S. 135 (1927) which upheld the power of Congress to require information sought for legislative purposes. None of the cases relied upon by the Attorney General involved demands by the Congress for information from the executive agencies. This was considered in a study on the matter furnished the committee by the Attorney General. See page 2938 of the printed hearings before a subcommittee of the House Committee on Government Operations on June 20 and 22, 1956, on “Availability of Information from Federal Departments and Agencies” wherein after citing and quoting from numerous court decisions he stated “None of the foregoing cases involved the refusal by a head of department to obey a call for papers or information. There has been no Supreme Court decision dealing squarely with that question.”

As indicated, the precise question of whether the Congress has a right to obtain information from the Executive which it refuses to furnish because of its confidential nature has not been the subject of a court decision. Where information sought by Congress by an executive department has been refused, the Congress has, at times, succeeded in bringing sufficient pressure to bear to obtain the information, or the executive department has, upon reconsideration, relented and furnished it. At other times the Congress has not pressed the matter—possibly because of its feeling that the President was in such a position that he should know whether the information should be withheld, or that the Congress had no machinery to force his compliance—and the information was not furnished. But, regardless of whether such right or privilege exists, it is clear that the Congress in passing on future appropriations and other legislation has a right to know whether the funds appropriated are being properly and efficiently used for the purposes it intended and that any information available in that regard should be available to the Comptroller General.

In view of the above, and in the absence of any judicial determination specifically dealing with the rights of the Comptroller General under section 313, we do not believe that the position of the Secretary of the Air Force that the report in question can be legally withheld is proper.

Robert F. Keller, General Counsel

December 22, 1960

The President,
The White House.

Dear Mr. President: You have requested my advice whether, under the Constitution and laws of the United States, you have the authority as Chief Executive to issue the two attached directives to, respectively, the Secretary of State and the Secretary of the Treasury, concerning the availability of mutual security program funds for the expenses of the Office of the Inspector General and Comptroller established under section 533A of the Mutual Security Act of 1954, as amended.

In an opinion I have furnished you at your request, I have advised you of my conclusions that: First, the view taken by the Comptroller General in his letter of December 8, 1960, that the proviso contained in section 533A(d) of the Mutual Security Act of 1954, as amended, has operated to cut off the funds here in question, is erroneous. Second, that if this view of the Comptroller General as to the meaning of the proviso is correct, the proviso is unconstitutional. Third, that therefore, despite the Comptroller General’s letters of December 8, 1960, and December 13, 1960, these mutual security program funds continue to be available as heretofore for the expenses of the Office of the Inspector General and Comptroller. The reasons for these conclusions are set forth at length in my opinion.

Your directives to the Secretaries of State and the Treasury are, you advise me, in your judgment desirable to insure that mutual security program funds will be available until the end of your term of office on January 20, 1961, as heretofore for the expenses of the Office of the Inspector General and Comptroller. Under these circumstances, I am of the opinion that you, as Chief Executive, have the authority to issue the directives.

Respectfully,
William P. Rogers,
Attorney General

Section 533A(d) of the Mutual Security Act of 1954 added by section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253), which directs that the expenses of the Office of the Inspector General and Comptroller with respect to programs under the Mutual Security Act be charged to the appropriations made to carry out such programs, provided that all documents, reports, and other materials relating to the operations and activities of that Office are furnished upon request to the General Accounting Office, or to any appropriate congressional committee or duly authorized subcommittee, does not authorize the funds of the Office of the Inspector General and Comptroller to be cut off because of the failure of the State Department to furnish certain documents relating to that Office to a congressional subcommittee, if the President has issued a certificate pursuant to section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961 (74 Stat. 778), to the effect that he has forbidden the production of those documents and states his reasons for so doing. A contrary conclusion reached by the Comptroller General is incorrect, and, therefore, funds continue to be available as heretofore for the Office of the Inspector General and Comptroller.

The proviso in section 533A(d) does not expressly authorize the funds of the Office of the Inspector General and Comptroller to be cut off, and such a drastic consequence should not lightly be inferred from ambiguous statutory language. Other provisions of the Mutual Security Act of 1959, the Mutual Security Act of 1960 (74 Stat. 134), the Mutual Security and Related Agencies Appropriation Act, 1960 (73 Stat. 717), and the Mutual Security and Related Agencies Appropriation Act, 1961, indicate a congressional purpose not to compel the disclosure of information concerning the mutual security program which the President considers to be incompatible with the security of the United States. Section 533A(d) should be read in the light of this purpose.

Section 533A(d) has been suspended by section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961, which provides that the failure to furnish documents, etc., to Congress or to the Comptroller General will not result in a cutoff of appropriated funds if the President certifies that he has prohibited the production of the documents and states the reasons for this action.

A construction of the proviso to section 533A(d), requiring funds for the Office of the Inspector General and Comptroller to be cut off for failure to supply documents, notwithstanding the President’s certification, must be avoided because it not only creates constitutional doubts, but would, if correct, render the proviso unconstitutional. Congress cannot by direct action compel the President to furnish to it information the disclosure of which he considers contrary to the national interest. It cannot achieve this result indirectly by placing a condition upon the expenditure of appropriated funds.