MEMORANDUM ON THE POWER OF CONGRESSIONAL COMMITTEES TO INVESTIGATE THE CENTRAL INTELIGENCE AGENCY

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP59-00882R000300240120-7
• Release Decision: RIPPUB
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• Document Page Count: 17
• Document Creation Date: December 9, 2016
• Document Release Date: February 28, 2001
• Sequence Number: 120
• Publication Date: May 8, 1953
• Content Type: MEMO

()(3(; HAS REVIEWED.
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aerm OF
TO INVE3TTGATZ
AGENCY
FOIAb5
Although the issue has never been tested in the C the poLitical
history of the United States contains mummies Instances where the Presi-
dent and executive heads of departments have refused to furnish informa-
tion to Congressional committees for reasons or pOblic interest. On
each occasion vivre the President has supported the departmental head's
refusal to dive's, confidential inttruntion? the papers and isecrmation
have been withheld. This uniform result ateme from the fundamental
411 preposition that over the interrelation of the 'three great branches
of the Federal Government; that no one of the three has the power to
subject either of the other two to its unrestrained will. Weighed
against this, of coureel is our fundamental theory of checks and balances.
Where Congressional requests have been denied or politely turned aside,
the explanation of public interest has inverialy been given. Former
President William Howard Taft said on this subject:
"The President is required by the Constitution from time
to time to give to Congress information on the State of the
Union, and to recommend for its consideration such measures us
he shall judge necessary and expedient, but this does not
enable Congress or either HOW, of Congress to elicit frost him
confidential information which he has acquired for the purpose
of enabling his to discharge his constitutional duties, if he
does net deep the disclosure of such infareationsendent or in
the public interest." William Howard Taft, Our Chief Magistrate
and his Powers, p. 129.
The President and his departneutal heads have in the past on
occasion furnisbed classified information which the Cemnrese sought.
They live acne so in a spirit of comity, not because of any effective
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means to compel them to do so. It has become generally recognised
that a edbpoena duces tecum, issued by a Congressional committee to
an executive head of departmeet and calling for the production of
testimony and records, need not be complied with if disclosure of
contents would be detrimental to the public interest. As e. practi
cal matter, where the President has directednon-appearance in
response to the subpoena the person summoned has so advised the
committees or las seared and claimed privilege.
Although Congress has by statute provided the organic legisla-
tion for certain executive departments and agencies and can by law
change their duties abolish them, or withhold their appropriations,
it eay not use legi:lative pager to compel the heads of such depart-
ments or agencies to act contrary to what the President finds is in
111 the public interest. The President is the judge of the interest in-,
volved and in the exercise of his discretion must be accountable to
the country sad his conscience. ?be executive branch of the Govern-
ment is intended to assist him in the execution of his responsibilities.
There is annexed hereto as Appendix A. an historical summary
of certain occasions where the legislative has sought confidential
executive papers or information and has been refused.
Although there are no cases on the power of Congress to obtain
classified information from the executive there are many upholding the
executive's right to withhold such infarm,:tion in suits by private
parties. Appendix B. contains a summary of the more important of
these cases.
?
FOIAb5
r.
FOIAb5
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SIIARY OP OCCAS/ONS WREN TRE LEGISLATIVE RAS SOUGHT TO
COMPEL THE EXECUTTVE TO PRODUCE CONFIDENTIAL DOCUMENTS
In Mirth of 1792, the Rause of Representatives passed the following
resolution:
*Resolved, That a committee be appointed to inquire into
the causes of the failure of the late expedition under Major
General St. Clair; and that the said committee be empowered to
call for such persons, pipers, and records, aa may be necessary
to assist their inquiries." 3 Annals of Congress, p-. 493.
The expedition of General St. Clair had been under the direction
oft)* Secretary of War and the assertion of the House of Representatives
of its rights to investigmte vas predicated upon its control of the
expenditure of pu,blic monies. The Secretaries of War and Treasury
opperently appeared in person before the committee. However, when
President Wethington himself was asked for the papers pertaining to the
General St. Clair compaign, a cabinet meeting was called at which it
was unanimeusly'coneluded that the President should communicate only
such papers as the Relic good would permit and should refuse disclosure
of those which would injure the public. All but Secretary of the
Treasury Alasandar Hamilton believed this doctrine applied as va14 to
Heads of bessetemote who came under the President.
In 1796, President Washington was presented with a House resolution
requeeting that the House be Shown a cOPY Of the instructions to the
U. S. Minister who negotiated the peace treaty with Great Britain
togethmewithrelsted documents and correspondence. The House vas
insisting upon emamination of them mere as a condition precedent to
appropriating funds to implement the treaty.
Washington addressed a message to the House in which be discussed
the requisites of secrecy in international intercourse and expressed
the feeling that admission of the Rouse of Representatives into the
treaty :asking process would create dangerous precedence. He concluded
the address by a categoric refusal to divulge the information requested.
In January 1807, during Jefferson's administration, Representative
Randolph introduced the following resolution:
*Resolved, That, the President of the Milted States and
he hereby is, requested to lay before this House any ?nation
in possession of the ftecutive, except such as be may deem the
public welfare to require not to be disclosed, touching any
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illegal combination of private individuals against the peuee
and oofotY of the Thalatt, or oar military expedition planned by
such individuals ageinet the territories or any Power in amity
with the United States; together with the meaeures which the
Downtime has pursued and proposes to take for swing or
debating the sane.* 16 Annals of Comgress (1 7), P. 336.
This resoletion was overwhelmingly pealed at a tine when the
Eurr comspiracy was stirring the country. Jefferson's message to
the Senate and Nouse provided a summary of recent events and then
with respect to the accumulation of data in his hands stated:
"...In this state artb? evidence, delivered sametimes, too, under
the reetrietiou of private confidence, neither safety nor justice
will permit the exposing names except that of the principal actor,
whose guilt is placed beycod qUestien." Richardson, and
? P.. of th.Presidepts? Vol. I, p. 41e, dated &none*: 2, len.
On three different occasions President Andrew Jackson success-
fully resisted attempts by the Muse and Senate to extract informa-
tion and papers of the lkeoutive considered te be confidential. The
first of these was a request for a copy of a paper which had been
published and allegedly read by the Executive to the Heads of the
Departments. The second was a request for information in connection
with the investigation by the Senate respecting frauds in the sale
of pUblic lends. The third was a request in connection with a House
resolution to investigate the condition of the Executive Department
concerninc their integrity and efficiency.
In 1842 during John Tyler's administration principle was
established that all papers and documents relating to applications
for office are of a confidential nature, end an eppeal to a President
to make such records public should be refused. Tyler abjectly
denied a request to communicate to the Nouse the nemes of such mem.
bars of the 26th and 27th Ctogresses as had applied for office and
for what offices, and whether in person or by 'writing or through
friends.
President Tyler wassuccessful on a later occasion in withhold-
ing confidential informs ion from the Rouse in ccenection with an
inquiry into reports relative to the affnirs of the Cherokee Indians
and frauds alleged to have been practiced on then. In a masa&
to the House dated January 31, 1843, be stated:
"...Tba injunetion of the Constitution that the President 'shall
take care that the lews be faithi)aly executed' nwessarily confers
an authority, aammenanrate with the obligation impend, to inquire
into the manner in which all pUblic agents perform the duties as-
signed to theta by law. To be effective, these imptiries must often
be confidential. They nay result in the collection of truth or of
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or they say require fUrther pro-
secution. To maintain thet the President can exercise no discretion
as to the time in whieh the matters thus collected shall be promul-
gated, or in respect to the Character of the information Obtained,
would deprive him at one of the neon* of perfansing one of the moat
salutary duties of his office. An inquiry arightbsarrested at its
first stage, and the officers whose *endue% demanded Investigation
nay be enabled to elude or defeat it. To rewire from the Execu?
tive the transfer of this discretion to a coordinate branth of the
Government is equivalent to the denial of its poseession by him and
would render him dependent upon that brandh in the perftemence of
a. duty purely executive." Hinds, Precedents of the Home of
Representatives, Velumn 3, p. 181 Men
A few years later during James X. Folk's e inistrstcm a reso-
lution of the House of Representatives requested the President to
furnish the use an account of all payments sae on the President's
certificates, with copies of all memoranda regarding evidence of
such payments, through the agency of the State Department, for the
contingent expenses of farei intercourse from March 4, 1841, -until
the retirement of Daniel Webster from the Department of State. In
1841, Jahn Tyler was President with Webster his Secretary of State.
The reqaest, therefore, WAS for the details of certain payments made
by the State Department during the preceding administration.
Polk replied to the request:
An *portant qaestion arises, whether a sabsequent President,
either voluntarily or at the request of one branch of Congress, can
without a violation of the qpirit of the law revise the acts of his
predecessor and expose to public view that which he had determined
should not be 'node public.' If not a matter of strict duty, it
would certainly be a gee general rule that this should not be done.
Indeed, it may well happen, and probably would hems% that the
President for the time being would not be in possession of the infor-
mation upon ehich his predecessor meted, and could not, therefore,
have the means of judging whether he had exercised his discretion
wisely or not. Richardson, Messages and Posers of thir;Prooldentop
Vol. IV, p. 433.
This action illustrates the principle that what a poet President
has done, whether or not by law he was entitled to keep iiconfiden-
tial, a subsequent President will net reveal. President Poli felt
obliged to maintain secrecy became of the dangers of precedence
despite strong pane feeling than existing against secrecy et' any
kind in the adninistration of the government, especially in letters
of public expenditures. Polk was able to point to a law that had
enabled his predecessors in office, in the public interest, ta.heep
expenditures of a certain kind secret in nature. Cengress, of course,
could have repealed the law had it chosen to do so.
Appendix A (3)
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President James Budhanan an Mira 28, 1860 wee ecieUo4 to
protest an attempt by the Rouse at Representative$ to investigate
whether any MOSIM of influence hadbeentrcugnt to bear awn the
Congress for or against the passage of any law relating to the
rights of any state or territorY.,
In April 1876, President Grant retie* a hostile Reuse inquiry
into the discharge of his purely Efteutive ?Moe acts and duties.
Grant recognised the constitutional Authority given the abuse of
Representatives to require of the Enedutive information necessary
for legislation or impeadhment. The inquiry involved was not far
legislative pmrposes, and if far impendbment, Grant Objected that
it was an attempt to deny Math. basic right not tote a witness
against himself. It became evident that the Rouse royalist was a
Opolitical move to embarrass the President by reason of his laving
spent same hot months at Long Branch.
During the first adelnistration of Grover Cleveland the greut
debate on !Relations Between the Senate end Enecutive Departments"
took place. The debate arose out of Cleveland's d/smissal from
office of approcisstely 650 persons in the Executive branch.
Cleveland disclaimed any intent to withhold official mere, but.
he denied that papers and &Moments inherently private or confiden-
tial, addressed to the President or a Head of a Menertnent bovine
reference to an act entirely Eneeutivw, were Changed in their nature
and became official when placed far convenience in custody of public
departments. Concerning such papers the President felt that be
could with entire propriety destroy them or take them into bin own
perscaal custody. Cleveleed von his victory. His action establisned
a precedent far setting sport far the first time private papers in
the Bicecutive Departments from Willie documents. The President was
411 the one who established the cbaracter at the papers.
President Theodore Roosevelt prayed suecessful in his resist-
ance to a Senate resolution calling for the production of all docu
mints in connection with federal antiNtruet actions. Roosevelt re-
fused to disclose the reasons vtivyartieular notions had not been
taken. The Senate was equally thwarted in its attempt to get its
information from two bends of departments. Subsequently there was
introduced the relieving resolution in the Senate.
!Resolved by the Senate, That any and every public document,
paper, or record, or copy thereof, en the files of any department
or the Government relating to any abject whatever over which Con-
gress has any grant of power, jurisdiction, or ?antral, under the
Constitution, and any information relative thereto within the pos-
session of the offices of the department, is *Object to the call or
inspection of the Senate for its use in the exercise of its consti-
tutional powers and jurisdiction." 43 Cong. Bee. 839 (1909)
ppandix A (4)
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Out of the lively debate that ensued the following points seem
to be established:
1. That there was no law which compelled heads of departments
to give information and papers to Congress.
2. That if a head of a department refused to Obey a subpoena
of either of the Houses of Congress, there was no effective punishment
which Congress could mete out.
The resolution never came to a vote.
President Coolidge in 1924 was Compelled to thwart a Senatorial
attempt to vent a personal grievance on the Secretary of the Treasury
by ostensibly obtaining information from him upon which to recommend
reforms in the law and in the administration of the Internal Revenue.
Nr. Coolidge in a special message to the Senate dated April 11, 1924
stated it was recognized both by law and custom that there was certain
confidential information which it would be detrimental to the public
service to reveal.
In Jim of 1930 the Senate Foreign Relations Committee sought
from the Secretary of State confidential telegrams and letters
leading up to the London conference and. treaty. SecrWtfuryStimson
provided such information as he could which evidently fell short of
satisfying the committee. A resolution of the committee to the
effect that it regarded all facts which entered into the antecedent
and negotiations of any treaty as relevant and pertinent when question
of ratification was involved. A message from President Hoover to the
Senate on July 110 1930 culminated this lengthy bitter debate. In this
he pointed out the number of informal statements and reports given our
government in confidence. To publish such statements and reports would
be a breach of trust of which the Executive should not be guilty. The
debate wound up in the adoption of a face-saving resolution by
Senator Norris.
The administration of Franklin D. Roosevelt affords numerous
instances of legislative attempts to obtain confidential executive
papers. The first of these occurred In Nay of 1935. The President
successfully avoided a precedent of sending to the Congress the text
of remarks made at a bi-weekly press conference.
In April of 1941, Attorney General Jackson was requested by the
Chairman of the Rouse Committee on Naval Affairs to furnish all Federal
Bureau of Investigation reports since June 1939, together with "all
future reports, memoranda, and correspondence, of the Federal Bureau of
Investigation, or the Department of Justice, in connection with investi-
gations made by the Department of Justice arising out of strikes,
subversive activities in connection with labor disputes or labor
disturbances of any kind in industrial establishments which have Naval
contracts, either as prime contractors or subcontractors.
Appendix A (5)
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Attorney General Jacksous opinion, printed in loo op. A. 0. 45
(April 30, 1941), stated inpart:
"It is the position of this Department, restated
the approval of and at the direction of the President, that all
investigative reports are confidential documents of the execu-
tive department of the Governeent, to aid in the duty laid upon
the President by the Constitution to "take care that the less
be faithfully executed," and that congressional or public access
to them would not be in the public Interest..."
"Disclosure of the reports at this particular time would
also prejudice the potions' defeassand be of aid and comfort
to the very subversive element' against which youvisihto pro-
tect the country. Per this reason vs hove seile entrededinery
efforts to see that the resets of counterespicnags activities
and intelligence activities of this Departmeet inwaleing- thorn...
elements are kept within the fewest possible hands. A catalogue
of persons under investigation or suspicion, and Vlat we know
about them, would be of inestimable service to foreign asencies;
and information which could be so used cannot be too closely guarded
"Moreover, disclosure of the reports would be of serious
preNdice to the future usefulness of the Federal bureau of
investigation. As you prdhably know, such of this infarmation
is given in confidence and can only be dbtoined upca pledge not
to disclose its souroes. A disclosure of the sources would
eabarrass informants--saistines in their employment, sometimes
Lu their Social relations, and in extreme eases might even
en-
danger their lives. We regard this keeping or faith with con-
fidential informants as an indispensable coalition of Mere
efficiency." ho Op. A. Oe 43, 46 47.
"This discretion in the executive branch (to vi
Montle" information) has been upheld and respected
judiciary. The courts have repeatedly held that they
and cannot require the executive to produce such papers when in the
opinion of the executive their production is eontrary to the
public interests. The courts have also held thet the question
whether the production of the papers would be against the
public interest is one for the executive and not for the courts
to determine." (4o Op. A. G. 450 49)
Accordingly Jackson refused to divulge the requested information.
On January 20, 1944 at the Bearing before the Select Committee
to Investigate the FCC, the Director of the Federal Bureau of In,.
vestigetion called upon to testify, vas sustained by the Committee
Chairman in his claim of privilege not to testify as to certainnat-
Osendis A (6)
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tire cs w silent. The
Chairman suggested to the Citttee Counsel thet he interrogat. me.
Hoover on other matters. As to thee., Mr. Hoover still refused to
testify; the Chairman then pointedly ordered me. Hoover to answer
onetime put to hia by the Counsel. Again Mr. Hoover obdurately
refused. The record of the hearings is silent as to any action taken
by the consittee following Mr. Hoover's refusal.
This sane special Committee on another occasion sought the pro-
duction of records and testimony from the various Beads of Depart-
ments and Directors of Agencies. On each occasion the President or
hie cabinet menhers or Heeds of Departments exercised their gm
discretion concerning the propriety of furnishing testimoey and
papers. Where there was refusal, the Committee thought it vise not
410 to press the issue.
In the autumn of l9i5 when the tragedy of Pearl Harbor was the
object of legislative scrutiny the Joint Congressional Committee
attempted to elicit tense subpoenaed witnesses information regarding
the Cryptanalytic it. The President did everything possible to
assist the invest/esti= recognising the public desire for full and
complete disclosure. A minority of the ccenittee believed that the
President was imposing restraints on those whom be allowed to appear.
To an extent this was true because the President quite evidently
assumed responsibility of guiding and directing the Heads of the
Departments concerning the oral testimony and written material which
they to furnish the Committee. In so doing, Mr. Truman was
exercising historically precedented executive prerogative.
In 1948 the House of Representatives passed Haase Joint Resolution
342 directing all executive departments and agencies of the Federal
? Government to mese available to any and all committees of the House
of Representatives, and the Senate, any information which eight be
deemed necessary to enable them to prqperly perform the duties del...
gated to then by the Congress. This resolution never came to a vete
in the Senate.
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APP B
CERAIN WES /NVOLVM3
IPLOMATIC, STATE AND MILITARY SECRETS
Merbury v. Madison. In the leading case of Marbury v. Madison, 1 Crandh
13-7 (1B03), the plaintiff, William Marbury, was seeking by mandamus to
cove' Secretary of State James Madison to issue his commission as one
of John Adams' nmlinight judges." Although the appointment had been
made just prior to the assumption of the Presidency by Jefferson the
commission bad not been issued by John Marshall, Madison's predecessor
111 as Secretary or State during the Adams/ administration. Marshall, in the
meantime, bad become Chief' Justice of the United States and sat on the
case. The Attorney General was summoned for questioning and Objected to
answering one question as to the disposition or the commission, attributing
his refusal to his Obligation to the executive. The Court stated:
?
"By the constitution of the United States, the president
is invested with certain important political powers, in the
exercise of which be is to use his own discretion, and is
accountable only to his country in his political character, and
to his own conscience. To aid him in the performance of these
duties, he is authorised to appoint certain officers, who act
by his authority, and in conformity with his orders. In such
cases, their acts are his acts; and whatever opinion may be
entertained of the manner in which executive discretion may
be used, still there exists, and can exist, no power to control
that discretion. The subjects are political: They respect
the nation, not individual rights, and being entrusted to the
executive, the decision of the executive is conclusive." I
Cranch 137, 164.
"The province of the court is, solely, to decide on the
rights of individuals, not to inquire how the executive, or
executive officers perform duties in Which they have a dis-
cretion. Question: in their nature political, or which are,
by the constitution and laws, sUbmitted to the executive, can
never be made in this court." 1 Craneh 137, 170.
The court decided that if intrusion into cabinet records was not
ineblved, if the matter respected papers of public record and to a copy
of which the law gave a right on payment of a small amount, and if the
subject in issue was not one over which the executive can be considered
an exercising control, a citizen may, as to such a paper, assert the right
given his by an act of Congress. The court could issue a mardssms directing
performance of a ministerial duty not depending on administrative discretion
but on particn1fIr acts of Congress and the general principles of law.
Appendix B (1)
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As to the action prayed for, the court held that the Secretary
of State was subject to the writ of mandamus but denied the writ on
the ground that the provision of the act of Congress giving the
original Jurisdiction under which the suit bed been brought was
unconstitutional.
The trial elbows Cooper for seditious libel in the Circuit
Court of Pennsylvania in 1800 produced a request for a subpoena to
issue directed against the President of the United States, John
Adams, who vas the person allegedly libelled. The court refused
to issue the subpoena and preemptorily informed the defendant that
if be undertook to publish a false libel against the President with-
111 out having proper evidence before him to justify his assertion, he
would do so at his risk. This appears to be the first recorded in-
stance of an effort to coepel a President Of the United States to
produce a document at a court trial.
In the famous trial of Aaron akar in 1807, President Jefferson
was directed by a subpoena duces tea to produce a certain letter
alleged to contain information belpfel to the defense. Judos Marshall
allowed the subpoena stating that the President was not emempt per se
from process, although he was free to keep from disclosure such as
he deemed confidential. Mershall evidently overlooked the Chase
opinion in the Cooler case. The Burr trial produced for the first
time judicial consideration of the problem of official records being
subjected to public disclosure. Marshall's ruling has not been fol-
lowed by subsequent court decisions nor adhered to by the Presidents
themselves. Hardball indicated that be believed the power of the
111 court fell abort of direct compulsion of the President to produce.
Jefferson refused to incknovledge the subpoena denying the right
of the judicial branch to order him as President to do amything. The
letter requested was given by Jefferson to the Attorney General with
instructions to keep out of court so much as the U. S. Attorney
deemed confidential. Jefferson subsequently stated his fundamental
legal position as follows:
"He, or course, (the President) from the nature of the
case, must be the sole judge of which of them the public inter-
est will permit pUblication. Bence, under our constitution, in
request of papers, from the legislative to the executive branch,
an exception is carefully =preened, as to those which he stay
deem the public welfare may require not to be disclosed."
Letter of June 17, 1807 to U. S. Attorney Bey, Thomas Jefferson
Writings, (Ford), Volumn 9, Pass 57.
Appendix B (2)
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Jerrerace was prepared to resist by force if necessary an at..
tempt toobtain the papers Which Farm sought. Quits fortunately the
issue was not pressed either as to the President himself or to the
Secretaries of War and Navy, who also were directedineeenally to
attend.
Totten. Ader v UoJ, The case of Totten. Administrator v., IL S" 92
U.S. 105 (1375), involved an action far paynant for services al-
leged to have been rendered by one William A. Lloyd under a contract
with President Lincoln. The services included uravel behind the
Confederate lines for the purpose of ascertaining the nuMber and
disposition of Confederate troops and the plans of Confederate forti-
ficatices. Lloyd accomplished his nission with considerable euccess
and made full reports of his findings to the Union authorities. The
Court of Claims found that the services were rendered as alleged and
that Lloyd was only reimbursed for his expenses. The Supreme Court
in denying recovery on the contract stated at peep 106:
"The service stipulated by the contract was a secret sem.
ice; the information sought was to be obtained clandestinely,
and was to be communicated privately; the employment and the
service more to be equally concealed. Both Employee and agent
must have understood that the lips of the other were to be
forever sealed respecting the relation of either to the natter.
The condition of the engagement was implied fron the nature of
the employments and is implied in all Emmet employments of the
government in time aver, or upon matters affecting our foreign
relations, where a disclosure of the service night compromise
or eMbarrass cur government in its public duties, or endanger
the person or injure the character of the agent."
The court went on to say that secrecy was a condition of the
agreement and that the disclosure of the information necessary to
the maintenance of the action defeated recovery. The opinion con.
tinued at page 107:
"It may be stated as a general principle, that public policy
forbids the maintenance or any suit in a court of justice, the
trial of which would inevitably lead to the disclosure of mat-
ters which the law regards as confidential, and respecting
which it will not allow the confidence to be violated. On this
principle, suits cannot be maintained which would require a dis-
closure of the confidences of the confessional, or those be-
tween husband and wife, or of coessunications by a client to his
ccunsel for prcdessional advice or of a patient to his physician
for a similar purpose. Much greater reason exists for the ap-
plication of the principle to cases of contract for secret serv-
ices with the government, as the existence of a contract of
that kind is itself a fact not to be disclosed."
B (3)
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. priq. In the later action of le Arnaud v. Ikdted States,
483 (189), presenting the question debether secret
services were to be distinguished frame "military =pert services",
the Supreme Court had ?cession to consider an appeal from a Court of
Claims judgment dismissing a complaint in Which $100,000 was sought
for services renderedlky De Arnaud as a %Jittery expert" employed
for *epeeist and important duties" by General Fremont for and in 'W-
heal!' of the Won Army. De Arnaud was &Russians resident in the
United States, with prior as a Lieutenant of Engineers
in the Russian Army. In 1.;:i Premeet had empleyed hie to pass
through the enemy line*, Observe the order of battle, and report
back. His mdssion resulted in the saving of Paducah, Kentucky. Be
was paid 000.00 for his services one receipt narked "for special
services rendered to the U. S. Government in travelling through the
rebel parts ofiDmetanky? Thonessee. ? aghieh led to successful
results." His claim was suppartalby certificates from GesernU
Grant and Premout. President Lincoln ordered the clai* paid if just
end equitable. The Secretary cd"WarpaidDe Armand $2000 which was
received under protest although the receipt acknowledged peyment in
full. Subsequently, De Arnaud instituted =esti= in the Court of
Claims.
The Supreme Court could recognise no distinction between "the
secret services" rendered in the 'fatten Cass and the %altary expert
services" which De Arnaud claimed to have rendered. The receipt
which De, Arnaud signed was considered to operate as a bar to sni
further demand. At page 490 of the cginion, the mart Stated:
"Accounting officers have no jurisdiction to open up & settlement
made by the War Department fro* secret :wrotee funds and detereine
unliquidated demos."
?Pia= of Atty. Oen. Speed. In i36, Attorney Generel Jwms eed ad-
visa President with regard to the Secretary of vy'sto
respond to Individual or state requests for the production e-
plified of military courts-martial records:
Upon principles of public policy there are scie kinds of
evidence which the law excludes or dispenses with. Secrets of
state, for instance, cannot be given in evidence and those who
are possessed of such secrets are not required to maks disclosure
of then. The official transactions between the beads of depart-
ments of the Government and the subordinates are, in general
treated as 'privileged communication.' The President of the
U. S., the heads of the great departments of the Government,
and the Governors of the several states, it has been decided,
are not bound to produce papers or disclose information com-
cated to than when, in their own judgment, the disclosure
would, on public considerations, be expedient. These are famil-
iar rules written down by every authority on the law of evi-
dence." 11 Op. I. 0. 137, 142 (1865).
Append (4)
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t. In the case of 'MeV, 8.Curtiss-W7W
zbe,,airk Cereal' 299 0. S. 3011 (1936), the Supreme C.mst, was
called upon to determine the cometitutionality and leeelitY of an
indictment charging vielation of a joint revolution of Congress, and
a Presidential proclamation issued pavement thereto, which ferbede
the Shipment of arms or ammunition to fereign nations swaged in
armed cooflict in the Chaco. The case arose ma demurrer to the
indictment and invert dhallemord asen improper delegation of -power
the unrestricted scope of Sellostivit actin& eithaut adhursite stands
imposed by the Congress. In *peeking of the inclusive prelims at
the evocative in the area of intereouree with !Orates nations, the
Court said at peeps 319 and 3201
*Not only, as we have Shown is the federal pa.sr over ex-
tarnal affeirs in origin and essential Character different from
that over internal affairs, but participation in the enemies of
the pcwer is significantly limited. le this vast external reline
with its important, eamplietted, delimits and maelfed preblems,
the President alone bas the pew tO speak or listen as a
representative of the z*tica. eEft,- treaties with the
advice and consent of the Sleets; It alms negotiates
Into the fiat' of losSotiation the Semite cannot intrude; and
Congress itself is 'queries* to Invade it."...
*It is quite apPerent that if, in the maintenance or our
international relations emberrassient-verhaps serious saber-
rassoint -As to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through
negotiation and inquiry within the international field must
often accord to the President a degree of discretion and free.
dam from statutory restriction which would not be admissible
yore domestic a:Mrs alone involved. Moreover, he, not
Cc-ogress has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true
in time at war. Be has his confidential sources of information.
Be has his aeents in the form or diplomatic coesular and
other officials. Secrecy in respect of inAreetion gathered
by than may be highly necessary, end the premeture disclosure
of It productive of harmful results. Indeed, so clearly is this
true that the first President refused to accede to a request
to lay before the House or Representatives the instructions,
correspondence and documents relating to the negotiation of the
Jay Treaty--a refusal the wisdom of which was recognised by the
House itself and has never since been doabted. In his May to
the request, President liaihiegton said:
'The Mature of foreign negotiations requires caution,
and their success must often depend an secrecy; and even
when brought to a conclusion a fUll disclosure of all the
measures, demands, or eventual commissions which mey have
Appendix B (5)
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been proposed or cactemplated would be extremely impolitic;
for this might have ? pernicious influence on nature ne-
gotiations, or produce inmediate inconveniences, perheps
danger and xdsehlef, in relation to other powers. The
necessity of such caution and secrecy was one cogent rea-
son for vesting the power at waking treaties in the Prost?
dent, with the advice end ecneent or the Senate, the prin-
ciple on which that body vas formed confining it to a small
umber of members. To admit, then, a right in the House of
Representatives to demand and to haw as a matter of course
all the papers respecting a negotiation with a foreign
power would be to establish a dengprous preeedint. 3.
Wessages and Papers of the Presidents, p. 194"
Chicago & Southern v. Waterman SS. A more recent case has ems down
O from he Noreme Court on the prelate of the exclusive domain of the
executive. The case of Chicew and Southern Air Lines v. Waterloo
SteamshipCorp4ton, 333 0. 103 (194e), arose on an eppeal from
a denial by the Civil Aerommties Ikard of a certificate of cameo-
ience and necessity fce an international air route to Waterman and
the award of the same to Chicago & Southern. The award could be
made only with the express approval of the President.
?
Oa this question, the court said:
The court below considered, and we think quite rightly,
that it could not review such provision* of the order as re*
salted from Presidential direction. The President, bathes
Commender-iniChief and am the Itticals organ fer /Weida
affairs, has available intelliesnoe services whore reverts are
not and ought not tote published to the world. Itieould. be
intoIereble that courts without the relevant information,
should review and Patois* ludliflr actions of the ftecntive
taken an informal= prcieraly held secret. Nor can courts sit
in camera in order Ube taken into executive confidences. Mut
el7irrnourts could require full disclosure, the very nature
of executive decisions as to foreign poli ey is political, act
judicial. Such decisions ere wholly confided by cur Cometitu-
tion to the political deportments of the government, Executive
and Legislative. Thayer. dentate, ample., sad involve large
elemsnts of prophecy. They ere and should be undertaken only
by those directly reeponsilkle to the potpie whose welfare they
advance or isperil? They ars declaims of a kind for which the
judiciary has neltber eptitude, ibeilities nor responsibility
and have leis been held to belong la lir &min of political
paw not **jest to judiciel. intreslom Cr inquiry. Coleman v.
Miller, 'nos 433, hgli; untuka state.v. curetimp.wriWicor.
poraticess 299 US E011, 319-321; Oet3en v. Central LeatiAr
2166 US an 3132. We therefore epee that whatever of this order
emanates ilieem the President is end 'suseeptible of review by the
Depsiteent. 333 us 103. 112. 112.*
Appendix B(6)
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It might be noted that the Waterman ease was a 5_4 decision.
Notwithstanding, it still is good lam todAY? ntio issue.??involves
a challenge to the conduct of diplomatic and foreign affeirs, tor
which the President is exclusively reepoesible." Johnson Y.
JUUmentimeNte 339 LIS 763 (1950), at page 789, citing?WEIS Curtiss-
Wright and Waterman cameos. "It is pert/neat to Observe that any
policy tcwards aliens is vitally and intricately interwoven with
contepporaneous policies in regard to the conduct of foreign relations,
the war power, and the saintenance of a repUblican farm of govern-
ment. Such matters are so exclusivelrentrusted to the political
branches of government as to be largely immune from judicial in-
quiry or interference." Herisiada* v. Shaughnessy, 342 CS 560, 588
589, (1952), again citing the CUrtiss4Wright and Waternen wanes.
Gee also Dilated States v. Bexpalds, 73 S. Ct. 528 (1953)