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Mr. KERRY. Mr. President, recently our colleague, Senator Moynihan, secured, or maybe not so recently, his FBI file, and it is interesting that in 1961, in a memorandum suggesting a meeting between himself and a then very youthful Daniel Patrick Moynihan, J. Edgar Hoover wrote, `I am not going to see this skunk.'

Now, the Senator from New York has been called many things, as we all have in the course of our careers, but after considerable amount of reflection I concluded that the only way in which this moniker could stick would clearly be in a way that J. Edgar Hoover did not intend, and that is that the distinguished Senator from New York has long and often been a skunk at the garden party of the intellectually comfortable, challenging our thinking about the status quo.

Most recently, he has brought this very considerable skunk-like presence to the matter of America's intelligence bureaucracy in the post-cold-war era. He has asked why it is that our vast intelligence apparatus, built to sustain America in the long twilight struggle of the cold war continues to grow at an exponential rate? Now that that struggle is over, why is it that our vast intelligence apparatus continues to grow even as Government resources for new and essential priorities fall far short of what is necessary? Why is it that our vast intelligence apparatus continues to roll on even as every other Government bureaucracy is subject to increasing scrutiny and, indeed, to reinvention?

Our colleague's answer is an important one for all of us to reflect on. The answer is secrecy and bureaucracy. It is secrecy that conceals structure, budgets, functions, and critical evaluation from the public, the executive branch and most Members of Congress, including those on appropriate oversight committees. It is bureaucracy, the nature of the self-perpetuating institution like any of our intelligence agencies, that leads to an ongoing redefinition of purpose and ongoing creation of redundant systems and ongoing expansion of scope.

The first component, secrecy, means that the normal active tools of democracy, that is, press scrutiny, public debate, and appropriate oversight from executive and the congressional branches, are absent. And the second component, bureaucracy, means that reform, downsizing, reorganization, and elimination of redundancies cannot come from within because, as the Senator from New York demonstrates, our intelligence apparatus is merely following the norms of all agencies.

This suggests that the intelligence bureaucracy will not, indeed cannot, change until we act on the cultural barriers to reform.

I ask unanimous consent that excerpts of the remarks of our colleague, the senior Senator from New York, at Georgetown University's Marvin H. Bernstein Lecture be printed in the Record. I commend this important commentary on the problems of bureaucracy and secrecy to all of my colleagues.

There being no objection, the material was ordered to be printed in the Record, as follows:

Secrecy as Government Regulation


Marver Bernstein was a scholar of great range and authority, but his primary work concerned government regulation, notably his celebrated editorship of Volume 400 of The Annals: The Government as Regulator. In that tradition, I would like to consider secrecy as a form of government regulation.

If at times my account appears more anecdotal than analytic, I plead that data is the plural of anecdote.

And so we begin of a morning early in January, 1993, when I paid a farewell call at the White House on George Bush, a fine friend and a fine President. As I was leaving the Oval Office, his redoubtable Chief of Staff James A. Baker, III ran into me, and asked if I might wait for him in his office until he had finished some business with the President. I went down the hall, was served coffee, and awaited his pleasure.

In time he returned to his office, went out, and came back with a small stack of what seemed like magazines. Baker wanted to show me what had become of the morning intelligence summary.That is to say, the National Intelligence Daily, or `NID', which the Central Intelligence Agency had begun back in 1951. It used to be ten or twelve pages long, plain cover, Top Secret. Some three hundred copies were printed. The real stuff, Baker now showed me half a dozen national intelligence dailies from half a dozen national intelligence agencies. Some had photographs on the cover, just like the Washington Post. Some were in color, just like the Washington Times. The Chief of Staff explained it was necessary for him to arrive at dawn to read them all, try to keep in mind what he had already read in the press or seen on television, and prepare a summary for POTUS. As Paul C. Light would have it, government had thickened and heightened; someone now had to summarize the summations.

I left musing about this. I had a passing acquaintance with public administration theory, having been patiently instructed by James Q. Wilson and Stephen Hess. I knew Anthony Downs. Had even spoken to Luther C. Gulick as he approached his 100th birthday in a hamlet on the banks of the St. Lawrence River. I was beginning to be familiar with the new `institutional sociologists' such as Paul DiMaggio, Walter Powell, Howard Aldrich. I had read with great profit the works of Suzanne Weaver and Robert A. Katzmann in the M.I.T. series on Regulatory Bureaucracy. And a common theme was emerging. To cite DiMaggio and Powell, `Organizations are still becoming more homogeneous and bureaucracy remains the common organizational form.'

Light calls this `isomorphism,' In a 1978 lecture drawing on Wilson, and through him on to the 19th century German sociologist Simmel, I had propounded `The Iron Law of Emulation.' Organizations in conflict become like one another. (Simmel had noted that the Persians finally figured out it was best to have Greeks fight Greeks.) The United States Constitution assumed conflict among the three branches of government; I traced conflict techniques among them ranging from office buildings to personal staffs to foreign travel. Now, however, one's attention was directed to conflict techniques employed by agencies within one branch, the Executive.

The intelligence community called out for attention. Perhaps it was the room I had just left, this southwest corner room in the White House. I was there on the early afternoon of November 22, 1963, awaiting news from Dallas. The door burst open; in rushed Hubert H. Humphrey. `What have they done to us?' he gasped. By `they' we all knew; the Texans, the reactionaries. Later in the day one learned a suspect had been arrested; associated with Fair Play for Cuba. At midnight I met the cabinet plane that had been halfway to Japan. I sought out the Treasury official in charge of the Secret Service. We must get custody of Oswald, I pleaded. Else he will never get out of that jail alive.

After Oswald was shot, I went round in the company of John Macy, head of the Civil Service Commission, pleading that an investigation had to look into the jaws of hell, else we would be living with a conspiracy theory the rest of our lives. I carried with me a recently reprinted book of the post-Civil War era which `proved' that the Jesuits assassinated Lincoln:

`Booth was nothing but the tool of the Jesuits. It was Rome who directed his arm, after corrupting his heart and damning his soul.'
And, of course, today something like half of all Americans think the CIA was involved in the assassination of President Kennedy. There is even a Hollywood movie to prove it.

Nor can the historians disprove it. The records are sealed. We have an Assassination Records Review Board that lets some things out; not much. Recently, an eminent author wrote to tell me of a meeting with some CIA officials a few years ago in an effort to get some information on how the agency handled the aftermath of the assassination:

`Surely, I said, the agency has an interest in countering such a widely shared conspiracy theory with the truth. I got . . . blank stares.'

In his classic study, The Torment of Secrecy, which appeared in 1956, Edward A. Shils defined secrecy as `the compulsory withholding of information, reinforced by the prospect of sanctions for disclosure.' But secrets are disclosed all the time, and sanctions for disclosure are rare to the point of being nonexistent. (In the eighty years since the Espionage Act of 1917, only one person has been sent to prison simply for revealing a secret, as against passing material to a foreign power.) In 1995, I was asked to write an introduction to a paperback edition of Shils' work, and came up with the thought that secrecy is a form of government regulation. If this were so, we could look for the patterns those institutional sociologists keep coming up with.

Begin with Max Weber and his chapter, `Bureaucracy' in Wirschaft und Gescllschaft (Economy and Society), published after his death in 1920, but most likely written in part prior to World War I. He writes:

`Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and inventions secret. Bureaucratic administration always tends to be an administration of `secret sessions' in so far as it can, it hides its knowledge and action from criticism.

`The pure interest of the bureaucracy in power, however, is efficacious far beyond those areas where purely functional interests make for secrecy. The concept of the `official secret' is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude, which cannot be substantially justified beyond these specifically qualified areas. In facing a parliament, the bureaucracy, out of a sure power instinct, fights every attempt of the parliament to gain knowledge by means of its own experts or from interest groups. The so-called right of parliamentary investigation is one of the means by which parliament seeks such knowledge. Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament--at least in so far as ignorance somehow agrees with the bureaucracy's interests.'

The Federal Bureau of Investigation is nearest the `ideal type' of such a bureaucracy, and has the longest experience of the secrecy system that developed in the United States from the moment of our entry into the First World War and the enactment of the Espionage Act of 1917. The system began as a mode of defense against foreign subversion, frequently exploiting the divided loyalties of recent immigrants, and not infrequently stigmatizing an entire class of perfectly loyal citizens. This pattern persisted through the inter-war period, the Second World War, and onto the Cold War. From eminences such as Theodore Roosevelt who in 1917 sounded the warning against `the Hun within,' on to the obscenities of the McCarthy era, down to the present when, if I do not mistake, Islamic Americans are going to find themselves under surveillance, as it were.

I offer this proposition. The attempts at subversion were real, but never of truly serious consequence. The one exception was the atomic espionage at Los Alamos. But even that was temporary. Soviet scientists would have developed an atom bomb on their own; as they did a hydrogen bomb. Espionage is intriguing, but data analysis is more rewarding. One thinks of the poster in the headquarters of the Internal Revenue Service. `It Took an Accountant to nail Al Capone.' The problem is that in this, as in much else, the American public, and the Congress at time, were led to believe that it took the more secretive FBI.

It happens this is not true, but heaven help anyone who suggested otherwise at mid-century. Or such was my experience. As an aide to Governor Averell Harriman of New York in the 1950s. I became interested in the subject of organized crime after a State Trooper came upon an extraordinary assembly of mob leaders from around the nation that convened in the hamlet of Apalachin in the Southern Tier of New York. I became peripherally involved as a Senate staffer with Robert F. Kennedy, who was pursuing the subject. In July, 1961, I published an article in the Reporter magazine entitled, `The Private Government of Crime,' in which I argued that from its roots in prohibition, which was a large scale manufacturing and marketing activity, that there was something that could reasonably be termed organized crime, that it was serious, and that we had not found a way of dealing with it. Why, I asked, did American government have so little success in dealing with this phenomenon? My general thesis was that there was insufficient organizational reward. Almost in passing, I noted that the FBI, which had `not hesitated to take on the toughest problems of national security . . . has successfully stayed away from organized crime.' It got you nothing but institutional trouble.

By now I had joined the Kennedy administration as an aide to then-Secretary of Labor Arthur J. Goldberg. In a matter of weeks from the publication of the article, the Department of Labor building on Constitution Avenue was literally raided by G-Men. They hit the Secretary's floor in unison, went door to door, told everyone save the hapless author but including the Secretary himself, that a dangerous person had infiltrated their ranks with the clear implication that he should go. I can't demonstrate this but offer the judgment that at this time in Washington at any other department the person in question would have gone. Hoover had files on everyone, or so it was said. He and Allen Dulles at the CIA were JFK's first announced appointments, rather reappointments.

The Department of Labor was different only insofar as Arthur J. Goldberg was different. On August 2, C.D. `Deke' DeLoach had informed the Secretary that `it would appear to be impossible to deal with Moynihan on a liaison basis in view of his obvious biased opinion regarding the FBI.' The Secretary called me in, said: `Pat, you have a problem. Go and explain your point of view to the Director.' The next day, DeLoach agreed to see me, but made plain he could barely stand the sight. There is a three-page, single-space memorandum of the meeting in my FBI file, sent to the Director through John Mohr. It concluded:

`Moynihan is an egghead that talks in circles and constantly contradicts himself. He shifts about constantly in his chair and will not look you in the eye. He would be the first so-called `liberal' that would scream if the FBI overstepped its jurisdiction. He is obviously a phony intellectual that one minute will back down and the next minute strike while our back is turned. I think we made numerous points in our interview with him, however, this man is so much up on `cloud nine' it is doubtful that his ego will allow logical interpretation of remarks made by other people.'

The Director appended a handwritten notation, `I am not going to see this skunk.'

I survived: in part, I think, because the agency had no fall-back position. One raid had always done the trick; no Secretary ever asked that a 34-year-old get in to see the Director.

Organizational maintenance is nowhere more manifest, and at times ruinous, than in matters of national security. Hoover was present at this creation during the war hysteria of 1917 and 1918 and the anti-radical rumpus that followed, including Attorney General A. Mitchell Palmer's celebrated raids. The FBI was on to Communist activities fairly early on, and not about to cede territory. Richard Gid Powers has related the struggle with the Office of Strategic Services during World War II--Hoover wanted to go overseas. There were social tensions, as Powers records. `Oh So Social,' for the Office of Strategic Services; `Foreign Born Irish,' for the FBI.

However, there is another perspective, perhaps best evoked by the tale of British Foreign Secretary Ernest Bevin, sometime head of the Transport and General Workers Union, on his return from the 1945 Potsdam conference. What, he was asked, were the Soviets like? `Why,' he replied, `they're just like the bloody Communists!' By contrast, it is quite possible that Harry S. Truman had never met a Communist until he sat down with Stalin at the same conference. Similarly, Hoover may never have met a Communist in his own circles. It was a matter of regionalism, in what was then a much more regional nation. The clandestine activities of the Communist Party of the United States of America were common knowledge within political and intellectual circumstances of Manhattan in the 1930s. They were a given. Such urbanity, if that is not an offensive phrase, was unknown to the ward politics of Kansas City, and equally to the Protestant churches in young Hoover's Seward Square on Capitol Hill.

In this sense, it was as easy for Harry S. Truman to believe that
there were no Communists in government as for J. Edgar Hoover to believe they were everywhere. Neither had any experience with a political community in which some persons were Communists, some had been, some had nuanced differences, some implacable hostility. The world, you might say, of Whittaker Chambers. Or, for that matter, the late Albert Shanker, President of the American Federation of Teachers. His February 1997 obituary records his struggle with Communists in the teachers' unions of New York City in the 1950's. Thus: `The anti-Communist Teachers Guild was a weak group of 2,400 members.'

In the tumult and torment that followed World War II, it would appear that at first Hoover tried to `warn' Truman of suspected Communists in or about the American government. We have in the Truman Library a four-page letter of May 29, 1946, from the Director to George E. Allen, then head of the Reconstruction Finance Corporation, and a friend of the President, concerning `high Government officials operating an alleged espionage network in Washington, D.C., on behalf of the Soviet Government.' Almost everyone of consequence was implicated. First of all, `Under Secretary of State Dean Acheson,' `Former Assistant Secretary of War John J. McCloy,' `Bureau of the Budget--Paul H. Appleby.' It happens I had a slight acquaintance with McCloy, rather more with Acheson, and was close to Appleby. Anyone with the least sense of the Marxist mindset would instantly understand that such men lived in a wholly different world.

There now commenced a tragedy of large consequence and continued portent. On December 20, 1946, Meredith Gardner of the Army Signal Agency across the Potomac `broke' the first of the coded VENONA dispatches sent mainly by the KGB from New York to Moscow. It was dated December 2, 1944. There were names of the principal nuclear physicists working at Los Alamos. Treason most vile had indeed taken place, was still going on, was indeed occurring, even as Acheson and Newman and Marks and others worked at establishing some kind of international post-war regime to control the bomb. They knew well enough that the bomb would not remain a secret long. Science does not keep secrets. But they did not know that the Soviets had got hold of our plans, and in consequence, would get their own bomb two to three years sooner than otherwise, and hence would want no part of an international regime.

They did not know because J. Edgar Hoover did not tell them.

Army Signals decrypted the cables, leaving it to the FBI to identify the individuals designated by code words. Julius Rosenberg was LIBERAL. Another atomic spy, the 19-year-old Harvard graduate Theodore A. Hall, was MLAD (Russian for `youngster').

The National Security Agency has now made public the VENONA decryptions. 8 We never broke more than perhaps 10 percent of the traffic, such is the impenetrability of one-time pads. But all of a sudden, in 1995, the American public learned what we had known.

The awful truth, however, is that when the President of the United States needed to know this, which is to say Harry S Truman, he was not told.

As best we know, and we never will know until the FBI opens its own files, President Truman was never told of VENONA. Nor it would appear, was Attorney General Tom Clark.

The consequences for American foreign policy were almost wholly negative. The realism about the Soviet Union exemplified by George Kennan, and embodied in the policies of such as Acheson and McCloy, gave way to an agitated anxiety, rhetorically on the part of Republicans, but as a matter of practice and policy on the part of Democrats. A realist view would have seen the Soviet Union as an absurdly overextended colonial colossus which would collapse one day, essentially along ethnic lines. (What, after all, had happened to the other European empires in the second half of the 20th century!) Instead, Democrats, launched an invasion of Cuba, bringing the world close to a nuclear exchange, and leaving an absurd problem with us to this day. Off we went to Vietnam, quite oblivious to the Russian-Chinese hostilities that broke out at the same time. And so on. In 1974, Donald L. Robinson described this as `The Routinization of Crisis Government.' After all, regulatory regimes seek routine!

Part of this disorder may be ascribed to the development of a vast culture of secrecy within the American government which hugely interfered with the free flow of information. The Central Intelligence Agency came into being, rather to the annoyance of the FBI which was slow to cooperate with it. (For that matter, it was not until 1952 that the Pentagon felt comfortable enough with the CIA to share the VENONA decryptions.) Scientists such as Frederick Seitz protested secrecy, but with small success. The problem was that the secrecy was secret. No one knew what was in the NID. And so matters of large import were never really debated.

The most important area was that of the Soviet economy. From the mid-1960s on, the intelligence community perceived the Soviets growing at a considerably greater rate than the United States. Inevitably, a `crossover' point would come when the GDP of the USSR would exceed that of the United States. In fairness, in the early years there were outside economists who seemed to agree, notably Samuelson. But this
fell off. In the summer of 1990, Michael J. Boskin, then-chairman of the Council of Economic Advisers, testified before the Senate Foreign Relations Committee on this matter. He estimated that Soviet GNP came to `only about one-third of the GNP of the U.S.' He volunteered that `as recently as a few years ago, the CIA estimates were at 51 percent.' In a question, I noted that the highest published figure was 59%, but that the secret estimates were even higher. It is hard not to conclude that the Agency had simply acquired an institutional interest in the view that the Soviets were gaining on us. We will debate for some time--say a century--whether the arms build-up, begun by President Carter in the Cold War mode, but continued for some time by President Reagan, somehow `bankrupted' the Soviet Union. But the Cold War did end, and the West did prevail. There cannot be too much fault to be found with this outcome. But surely there are lessons.

The first lesson is that a culture of secrecy kept the nation from learning the extent of Communist subversion in the 1930s and 1940s. (Subversion was present from the first. John Reed was a paid Soviet agent. But it didn't much matter until World War II came in sight.) Unlike the anti-German hysteria of the First World War, and the anti-Japanese hysteria of the Second, concern with Communist subversion from the 1930s into the Cold War was entirely appropriate. Even so, the Soviet success was limited, and was waning by the time we began to be aware of it. (The Soviet threat was another matter; an adversary with nuclear weapons, comething wholly new to the human condition.) `The American visage began to cloud over,' Shils wrote:

`Secrets were to become our chief reliance just when it was becoming more and more evident that the Soviet Union had long maintained an active apparatus for espionage in the United States. For a country which had never previously thought of itself as an object of systematic espionage by foreign powers, it was unsettling.'

The larger society, Shils continued, was `facing an unprecedented threat to its continuance.' In these
circumstances, `The phantasies of apocalyptic visionaries now claimed the respectability of being a reasonable interpretation of the real situation.' A culture of secrecy took hold within American government which abetted a form of threat analysis which led to all manner of misadventure.

The permanent crisis perceived in Washington was surely overdone.

I offer what follows somewhat as conjecture, but with a measure of conviction. The Soviet Union never intended to invade Western Europe, or generally speaking, engage in a third World War with the West. The leaders in Moscow were, for a while there at least, Marxist-Leninists. That doctrine decreed that class revolution would come regardless. It had been hoped for in 1919-20, again in 1945-48. It hadn't occurred, but it surely would. In the meantime, build socialists at home. Early in the Cold War the United States developed surveillance techniques, beginning with the U-2 `spy plane' and leading on to satellite imagery of today's National Reconnaissance Office.

I conjecture that this technology, and associated underwater devices, gave us first of all the security of knowing we would get a heads up on any serious Soviet preparations for an attack. Not, perhaps, a spasmodic nuclear strike by a crazed commander but anything approaching mobilization of the sort that said to have triggered World War I. (Once one side starts, the other must start, else a five-day advantage prove decisive, etc., etc.)

Similarly, in time, the Soviets had their own satellites: could track NATO forces, the various U.S. Fleets, our bombers and so forth. We never planned to invade the Soviet Union. We were obsessive about the Western Hemisphere: nothing new since Monroe's time. And seemingly incapable of understanding that when an idea dies in Madrid, it takes two generations for word to reach Managua. But never warlike as regards the Soviet Union itself.

A second lesson is less sanguine. The Cold War has bequeathed us a vast secrecy system, which shows no sign of receding. It has become our characteristic mode of governance in the Executive Branch. Intelligence agencies have proliferated; budgets continue to grow, even as the military subsides. Every day we learn of some new anomaly. As, for example, the Commerce Department employee who took his Top Secret clearance with him to the Democratic National Committee. (Look for the day when it is a mark of institutional prestige to have an honest-to-goodness spy discovered within one's ranks!) In 1995, there were 21,871 `original' Top Secret designations and 374,244 `derivative' designations. Madness.

In the meantime, as old missions fade, the various intelligence agencies seek new ones.

This has been painful to observe. I cannot say I could wish for the return of J. Edgar Hoover, as he thought I was a skunk. But someone needs to learn from Hoover's caution about taking on problematic missions. For example, keep the CIA out of drug trafficking. Stick to terrorism and weapons technology, including, of course, biological weapons. Same for most of the other agencies that now fill up our embassies, turning our ambassadors into room clerks.

And so to sum up. The twentieth century saw the rise of the administrative state. Government regulation has become the norm. However, we have developed not one, but two regulatory regimes. The first is public regulation for which we developed all manner of disclosure, discovery, and due process. This regime is under constant scrutiny. Thus, the 104th Congress enacted the Congressional Review Act which establishes a sweeping procedure whereby Congress, with Presidential approval, can nullify regulations.

There is, however, a second regulatory regime concealed within a vast bureaucratic complex. There is some Congressional oversight: some Presidential control. Do not overestimate either. Not that the public is excluded altogether, save as bureaucracies or bureaucrats think it to their advantage to make some things pubic. As, for example, it being budget time, we find on the front pages the report that:

`The Central Intelligence Agency has severed its ties to about 100 foreign agents because they committed murder, torture and other crimes. . . .'

This is surely a welcome development. Although it could be asked why in the first instance public monies were disbursed to murderers, torturers and sundry criminals.

This second regime is in need of radical change. We have sensed this for some time. But I now submit that change will only come if we recognize it as a bureaucratic regime with recognizable and predictable patterns of self-perpetuation which will never respond to mere episodic indignation.

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Mr. DeWINE addressed the Chair.

The PRESIDING OFFICER. The Senator from Ohio.

Mr. DeWINE. Mr. President, I yield such time as he may need to the sponsor of the bill, the Senator from Missouri.

The PRESIDING OFFICER. The Senator from Missouri is recognized.