Presidents' Secrets

The Use and Abuse of Hidden Power

Mary Graham

• Publisher: Yale University Press
• Year: 2017
• ISBN:
  9780300227680
• Topic: History
• Subtopic: North American History
• Index: History

A "succinct and well-written" look at how presidents use secrecy to protect the nation, foster diplomacy—and gain power ( The Wall Street Journal ). Ever since the nation's most important secret meeting—the Constitutional Convention—presidents have struggled to balance open, accountable government with necessary secrecy in military affairs and negotiations. For the first one hundred and twenty years, a culture of open government persisted, but new threats and technology have long since shattered the old bargains. Today, presidents neither protect vital information nor provide the open debate Americans expect. Mary Graham tracks the rise in governmental secrecy that began with surveillance and loyalty programs during Woodrow Wilson's administration, explores how it developed during the Cold War, and analyzes efforts to reform the secrecy apparatus and restore oversight in the 1970s. Chronicling the expansion of presidential secrecy in the Bush years, Graham explains what presidents and the American people can learn from earlier crises, why the attempts of Congress to rein in stealth activities don't work, and why presidents cannot hide actions that affect citizens' rights and values. "Engrossing... chilling and fascinating." — Publishers Weekly (starred review)

1

The Constitutional Convention:
The President’s Limited Power

George Washington presided over the nation’s most important secret meeting, the meeting that created the government he would lead as the nation’s first president. Faced with domestic and foreign threats to the nation’s survival, the delegates to the Constitutional Convention and the first Congress nonetheless created a government based on shared power and shared information, and explicitly protected privacy and freedom of expression. At the same time, they introduced the idea that secret deliberations had a place in open government. Closing the doors of the Convention itself encouraged delegates to speak candidly and reach constructive compromises. But secrecy also produced leaks, misinformation, and charges of conspiracy that nearly defeated their efforts.

“I KNOW NOT WHOSE PAPER IT IS, but there it is, let him who owns it take it,” George Washington thundered. He threw the papers down on the table in front of him and strode from the room. Someone had broken the vow of secrecy.

The three dozen men facing him were alarmed. Their leader was usually a silent and benevolent presence. But as they prepared to adjourn for the day, his anger vanquished his usual self-control. “I am sorry to find that some Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat Gentlemen to be more careful, lest our transactions get into the News Papers, and disturb the public repose by premature speculations.”

William Pierce, the delegate who later described this scene, put his hand in his coat pocket as the president spoke and was shocked to find his own copy of the papers missing. Approaching the president’s table with trepidation, he was relieved to find that the abandoned copy included notes that were not in his handwriting. When he returned to the Indian Queen, the boarding house where he and many others were staying, he was relieved to find his copy in the pocket of a coat he had pulled off that morning.

No one ever claimed the dropped papers.¹

Washington’s outburst reflected the desperation of the moment. The delegates to the Constitutional Convention of 1787 were engaged in a high-risk enterprise to remake the new nation’s government. It was not what they had been assigned to do. Washington feared that if word leaked out, the meeting’s failure would mean civil war or foreign occupation.

The four-year-old government had failed. The Continental Congress, the sole governing body, did not have the authority to collect revenue, regulate trade, or settle states’ disputes over boundaries and tariffs. Meanwhile, Britain and Spain schemed to pick off vulnerable frontier territory, and economic turmoil triggered farmers’ rebellions.

Instead of strengthening the Articles of Confederation as Congress and their state legislatures had instructed them to do, the delegates were debating an entirely new plan of government. It was an illicit enterprise with a seemingly impossible goal. There were too many competing interests—small versus large states, the south versus the north, the frontier versus the eastern seaboard, and national needs versus state and local autonomy. Only a secret meeting had a chance of creating a lasting representative government.

Over the next four months, the words and actions of these men, meeting behind closed doors in Philadelphia’s stifling summer heat, embedded in American governance two competing ideas. The first was that the government would be accountable to the American people. It would derive its legitimacy from the consent of the governed. The second was that secrecy had a legitimate place in an open government.

The delegates created an open government at a time of national emergency. The thirteen colonies had won the Revolutionary War but had not yet secured the peace. After the treaty of 1783 that secured the nation’s independence, the British, who still controlled Canada, continued to give military support to hostile Indian tribes, block exports to the West Indies, negotiate separate trade agreements with individual states, and occupy forts in American territory. Spain barred trade through New Orleans, effectively cutting off commerce on the Mississippi River, and bribed frontier politicians in attempts to sever Appalachian lands and attach them to the Spanish empire. Washington feared that western settlers would be driven into the arms of these foreigners.²

Writing to Thomas Jefferson soon after he arrived in Philadelphia, Washington warned that “the general government, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.” The fifty-five-year-old general had come out of retirement reluctantly to risk his reputation on the success of these secret sessions because he viewed them as the last hope to save the nation. He had served in the French and Indian War, commanded the army in the Revolutionary War, and served in the Virginia House of Burgesses and the First Continental Congress, and now the Convention had unanimously elected him its leader. But he craved a respite from public service. This was not the kind of gathering he felt comfortable leading. A man of action with less formal education than many of the delegates, he was not in his element debating about the structure of government.³

Nor was there peace among the states and territories. They made conflicting foreign policies, maintained their own navies, and fought over borders. Western migrants decreed a new state called Franklin in what later became eastern Tennessee. Connecticut claimed Pennsylvania’s Wyoming Valley. Vermont claimed parts of New York and New Hampshire, and threatened to secede from the union. New York imposed heavy fees on New Jersey and Connecticut vessels using its ports. South Carolina, New York, and Pennsylvania taxed the goods of competing states.

In letters and in their debates, the delegates often referred to the breakdown of law and order and the impotence of the Continental Congress. Four months before the Convention convened, 1,100 debt-ridden farmers, threatened with imprisonment for failing to pay their creditors, marched on the Springfield, Massachusetts, courthouse and arsenal in what became known as Shays’ Rebellion. With no authority or funding to send in troops, Congress stood by helplessly.

It was these fears that emboldened the delegates to defy Congress’s orders. The Convention was to meet “for the sole and express purpose of revising the Articles of Confederation.” Secrecy would prevent the members of Congress who had authorized their meeting and the state legislators who had paid for their attendance from knowing that the delegates were not following their instructions.⁴

The delegates had not planned to meet behind closed doors. On a rainy Friday, May 25, their first meeting day, they named three of their number to serve as the Convention’s Rules Committee. George Wythe of Virginia, senior in age and stature, served as the committee’s chair. Respected for his honesty, integrity, and legal learning, Wythe, who was sixty-one, had helped organize Virginia’s government. He had served as speaker of that state’s House of Delegates, and as a member of Congress. He had taught future presidents Thomas Jefferson and James Monroe, and future Supreme Court justice John Marshall, at the College of William and Mary. He was joined on the committee by Alexander Hamilton, a generation younger at thirty-two, Washington’s aide during the Revolutionary War and a member of Congress from New York, and Charles Pinckney, thirty, of South Carolina, who had served in both Congress and his state legislature.

When the delegates reconvened after the weekend, the committee’s report did not include a recommendation of secrecy. Wythe explained that each state delegation would have one vote, and that delegates of seven states had to be present for a quorum. In an effort to counter legislative multitasking, apparently already endemic, he warned that while a delegate was speaking, “none shall hold discourse with another, or read a book, pamphlet or paper, printed or manuscript.” But at the end of the day, Pierce Butler of South Carolina made a motion that the rules also forbid “licentious publications of their proceedings.”⁵

By the next morning, Tuesday, May 29, the committee had broadened Butler’s suggestion into three sweeping rules that closed all of the Convention’s deliberations:

That no copy be taken of any entry on the journal during the sitting of the House without leave of the House.

That members only be permitted to inspect the journal.

That nothing spoken in the House be printed, or otherwise published, or communicated without leave.

Sitting alone at the president’s table, a sober Washington immediately stopped entering the day’s deliberations in his personal diary. At the end of the Convention’s first week he wrote: “No minutes of the proceedings has been, or will be inserted in this diary.”⁶

The decision was controversial at a time when open deliberations had become a prevailing practice. Colonial legislatures generally recorded their proceedings. The Articles of Confederation required that Congress publish its journal, even during the Revolutionary War, providing for a secret journal for sensitive matters. The constitutions of Pennsylvania and New York explicitly required open legislative sessions. In Britain, parliamentary debates were officially reported beginning with the reign of George III in 1760. Often legislative journals included only actions and votes. Open doors came later.⁷

Respected leaders pointed out the virtues of publicity. Open debate would lead to better decisions that would benefit from a diversity of views from leaders outside the meeting room. Such decisions were likely to more accurately reflect the will of the people. And open proceedings would promote free discussion among the delegates themselves both in the assembly room and in the boarding houses and taverns where they spent leisure hours.

Informed by James Madison about the rule, Thomas Jefferson, who was serving as minister to France, wrote to John Adams: “I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of their intentions, & ignorance of the value of public discussions.”⁸

Delegate Luther Martin of Maryland protested that “so far did this rule extend that we were thereby prevented from corresponding with the gentlemen in different States upon the subjects under our discussion. . . . I had no idea, that all the wisdom, integrity, and virtue of this State, or of the others, were centred in the convention. I wished to have corresponded freely and confidentially with eminent political characters in my own and other States . . . to give their sentiments due weight and consideration. . . . The members were prohibited even from taking copies of resolutions on which the convention were deliberating, or extracts of any kind from the journals, without formally moving for, and obtaining permission . . . thereby precluding even the members themselves from the necessary means of information and deliberation on the important business in which they were engaged” (emphasis in the original).⁹

Patrick Henry, the acclaimed orator who had served four terms as Virginia’s governor but who had declined to serve as a delegate, asked at the state’s ratification convention: What dangers of “such awful magnitude” warranted such a fundamental change in government? “What right had they to say We, the people? . . . The people gave them no power to use their name.”¹⁰

The Pennsylvania Herald reported that “such circumspection and secrecy mark the proceedings of the federal convention, that the members find it difficult to acquire the habit of communication even among themselves, and are so cautious in defeating the curiosity of the public, that all debate is suspended upon the entrance of their own inferior officers.”¹¹

However, to the delegates, there were compelling reasons why the Convention represented a legitimate exception to the emerging idea of open deliberations. Secrecy would make it easier for delegates to alter their stands on issues, compromise, and quickly reach agreement. Furthermore, the Constitution was only a proposal. Secrecy would last only four months. After that, the results of their deliberations would be revealed and representatives chosen by the voters of each state would decide whether to approve the new government. Finally, their efforts could be obstructed by popular passions. When Washington berated the delegates for not being careful enough with their papers, he was concerned that revelations would “disturb the public repose by premature speculations.” The Convention’s work would inevitably disturb the public repose, but only after the proposed Constitution was printed and circulated in September.

It is significant that the delegates voted to close their doors on the same day that Edmund Randolph, governor of Virginia and an influential leader, proposed that they consider an entirely new national government. It would consist of a president, a two-chamber legislature with the power to veto state laws, and an independent judiciary. The proposal became known as the Virginia plan. Most of the delegates had come to consider only modest changes in the Articles of Confederation. Many were passionately committed to preserving state sovereignty and deeply suspicious of concentrating power in a national government. Suddenly, they were being asked to consider an entirely new and powerful president and legislature.

Washington himself had a pragmatic view of the enterprise. His close friend Henry Knox had warn...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction
• 1 The Constitutional Convention: The President’s Limited Power
• 2 George Washington: A Culture of Openness
• 3 Woodrow Wilson: A Foundation for Secret Government
• 4 Harry Truman: Institutional Secrecy
• 5 Lyndon Johnson: Stealth Attacks on Openness
• 6 Gerald Ford: A Time of Reckoning
• 7 George W. Bush: A Test of the Limits
• 8 Barack Obama: A Twenty-First-Century Bargain?
• Conclusion
• Notes
• Index