THE PRESIDING OFFICER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP61-00357R000500120009-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 22
• Document Creation Date: December 23, 2016
• Document Release Date: March 12, 2014
• Sequence Number: 9
• Publication Date: September 14, 1959
• Content Type: OPEN SOURCE

Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 CONGRESSIONAL RECORD ? SENATE .
. -
of them; and tile Comptroller General, or
any of his assistant 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, docu??
ments, papers, or records of any such de-
partment or establishment. The authority
contained in this section shall not be ap-
plicable to expenditures made under the pro-
visions of section 291 of the revised statutes."
It will be noted that the only exception
In section 313 relates to expenditures made
,nder section 291, revised statutes (31 U.S.C.
07), which authorizes the Secretary of
'tate to account for certain confidential ex-
)enditures in connection with intercourse or
? eaties with foreign nations by certificate
'here, in his judgment, he may think it
dvisable not to .specify the details of such
spenditure. Since that is the only excep-
lon stated and following the legal maxim
..iat the specific. setting forth of one tyjie
1 exception precludes others from arising,
t seems clear that the Comptroller General
.iay require, and the departments are re-
luired to furnish, documents, etc., as to
ny other transaction or activity. Also, the
anguage of section 313 itself (except as to
the expenditures under 291 R.S.), in requir-
ng the departments to furnish such infor-
nation as the Comptroller General "may re-
(titre of them" and its requirement that he
ie given access to any documents of the de-
Jartments, clearly kives him access to all
.uch documentation. If he has access to any
locument, he has access to all. The legisla-
tive background of the Budget and Account-
ng Act, 1921, makes no qualification as to
"'hat records can be required; the provision
Aseif apparently being considered sufficiently
wecific. The legislative reports do bring
Jut that one of the principal functions of
the Comptroller General is to enable the
Congress to be kept advised as to expendi-
tures 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 in-
tend 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 exebutive branch of the Gov-
ernment 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 ac-
tivities 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 Re-
port No. 1400 on the Legislative Reorganiza-
tion Act of 1946.
The Congress has also directed that the
Comptroller General in performing his duties
-five full consideration to the administrative
reports and controls of the departments and
agencies. The Government Corporation Con-
trol 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 super-
vising administrative agency pursuant to
law." The legislative reports on that act,
Senate Report 694, page 10, contains the fol-
lowing 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 con-
sideration 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 requir-
ing the Comptroller General in making his
audits to utilize, to the fullest extent deemed
by him to be practicable, reports of examina-
tions of Government corporations by a su-
pervising 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 ef-
fectiveness of accounting organizations and
systems, internal audit and control, and re-
lated administrative practices of the re-
spective agencies."
The Comptroller General is required to
audit the activities of the executive depart-
ments 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
f unds ) .
There have been no court cases construing
the statutes giving the Comptroller General
access to records. However, in 1925, the At-
torney General in an opinion to the Secre-
tary of War (34 Op. Atty. Gen. 446), con-
cerning a request by the Comptroller Gen-
eral 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 deter-
mination. Moreover, section 313 of the
Budget and Accounting Act provides (p. 26) :
-"All departments and establishments shall
furnish to the Comptroller General such in,
formation regarding the powers, duties, ac-
tivities, 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 pur-?
pose of securing such information, have ac-
cess to and the right to examine any books,
documents, papers, or records of any such
department or establishment."
Questions as to whether the General Ac-
counting Office has a right to access to rec-
ords 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
17941
right to the information, even though cer-
tain provisions of law relating to disclosure
Might be applicable to it.
The General Accounting Office recognizes
that certain of the functions of the inspec-
tors 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 effective-
ness 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 func-
tions constitutes an important part of the
process of management evaluations and in-
ternal reviews as distinguished from crim-
inal or personnel investigations. They pro-
vide 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 re-
quired to consider and recognize in deter-
mining the audit procedures to be followed
in its reviews.
The scope of inspection and survey pro-
grams of the inspectors general is similar
in character to much of the work the Gen-
eral Accounting Office has scheduled in re-
quirements, procurement, supply' manage-
ment, and research and development areas.
The programs of the Deputy Inspector Gen-
eral for Inspection of the Air Force cover-
ing the period July 1, to December 31, 1958,
Include (1) a survey of Air Force procure-
ment methods (advertising versus negotia-
tion); (2) a survey of procurement quanti-
tative and qualitative program changes; (3)
a-survey of procurement of commercial com-
munications and utility services; (4) a sur-
vey 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 manage-
ment evaluations which would clearly be a
part of internal audit and control within
the meaning Of section 117(a) of the Ac-
counting 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 Inspec-
tor 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 re-
ports will, without exception, be kept within
the Department. The Secretary also stated
that the report in quesion 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 _ad-
ministration, and that the release of such
reports to pzrsons outside the Dspartment
Declassified and Approved For Release @ 50-Yr 2014/03/12: CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17942 CONGRESSIONAL RECORD - SENATE September 14
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 re-
fuses to furnish because of its confidential
nature has not been the subject of a court
decision. Where information sought 1
Congress by an executive department h.
been refused, the Congress has, at time
succeeded in bringing sufficient pressure I
bear to obtain the information, or the exec,
tive department has, upon reconsideratic
relented and furnished it. At other tim
the Congress has not pressed the matter-
possibly because of its feeling that the Pres
dent was in such a position that he shou
know whether the information should 1.
withheld, or that the Congress had no DID
chinery to force his compliance-and tl
information was not furnished. But, r.
gardless of whether such right or privileg
exists, it is clear that the Congress in pan
ing on future appropriations and other leE,
islation has a right to know whether tl.
funds appropriated are being properly an
efficiently used for the purposes it intende
and that any information available in the
regard should be available to the Comptro
ler General.
In view of the above, and in the absent-
of any judicial determination specificall
dealing with the rights of the Comptrollt
General under section 313, we do not belie
that the position of the Secretary of the Al
Force that the report in question can b
legally withheld is proper.
ROBERT F. KELLER,
General Counsel.
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 releas-
ing 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 Presi-
dent on February 8, 1951, through Executive
Order 10214, pursuant to the act of May 5,
1950 (61 Stat. 107), and on the general
basis that the heads of executive depart-
ments have the right to withhold informa-
tion or papers which they deem confidential,
in the public interest.
The Manual for Courts-Martial, 1951, Ex-
ecutive 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 in-
quiry, military commissions, and other mili-
tary tribunals may be prescribed by the
President by regulations which shall, so far
as he deems practicable, apply the prin-
ciples of law and the rules of evidence gen-
erally recognized in the trial of criminal
cases in the U.S. 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 con-
fidential agents of the Secretaries of the mili-
tary or executive departments concerned, or
of the military commander on whose staff
they may the serving. Their investigations
are privileged unless a different procedure is
prescribed by the authority ordering the in-
vestigation. Reports of such investigations
and their accompanying testimony, and ex-
hibits 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 in-
vestigation or superior authority. However,
when application is made to the authority by
court-martial certain testimony, or an ex-
hibit, accompanying a report of investiga-
tion, 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 exer-
cise 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 com-
municate such confidential or secret infor-
mation.
Since the Manual for Courts-Martial was
issued pursuant to the authority of the Presi-
dent 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 Gen-
eral Accounting Office to inspectors general's
reports determined by the Comptroller Gen-
iral to be necessary to the performance of
his work, particularly where the report re-
quested is not one dealing with personnel
or criminal investigations.
Air Force Regulation 120-3, paragraph 9,
October 11, 1954, and similar regulations pro-
vide:
"Disclosure of or access to matters per-
tinent to an inquiry or investigation will be
limited to persons whose official duties re-
quire such knowledge. The Manual for
Courts-Martial, 1951, states that inspector-
general investigations are privileged infor-
mation. The same privileged status applies
to inquiries and investigations conducted un-
der this regulation. Also paragraph 3, AFR
190-16, July 29, 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 incon-
sistent with law, for the conduct of his de-
partment 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 ac-
cess to the records, any construction of the
Air Force regulation denying the Comptrol-
ler General access is improper, and the reg-
ulation, 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 ac-
cess 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 war-
rants 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 con-
sidered in a study by the staff of the House
Committee on Government Operations en-
titled "The right of Congress to obtain in-
formation from the executive and from
other agencies of the Federal Government,"
committed 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. Daugh-
erty, 273 U.S. 135 (1921) 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 in-
formation from the executive agencies. This
was considered in a study an the matter
furnished the committee by the Attorney
General. See page 2938 of the printed hear-
ings before a subcommittee of the House
Committee on Government Operations on
June 20 and 22, 1956, on "Availability of
Information From Federal Departments and
Emma IV-B
GAO BRIEF OF CASES CITED IN 40 OP. ATTY
GEN. 45_(1941)
1. Marbury V. Madison, 1 Cranch 137 (Feb.
ruary 1803 ) :
William Marbury was issued a commissio.
as justice of the peace for the county o
Washington (Washington, D. C.). Presiden
John Adams signed the commission and thc
seal of the United States was affixed. Jame'
Madison, Secretary of State, refused to dc.
liver the commission. Application was mad
to the Secretary of State inquiring as t
whether or not the commission was signed
Explicit and satisfactory inforthation wa.
not given in answer to the inquiry, an
Marbury, along with others similarly sit
uated, brought action against Madison tc
show cause why a mandamus should not is-
sue commanding him to deliver the corn
mission.
The court laid down several constitutions
principles in this ruling. Particularly 'DI
Importance to the matter in issue was thal
the party who was acting as Secretary o
State when the transaction took place couh
not be made to relate matters to the court
which he had learned in his official capacity
and which he felt were confidential. Se?
page 144 of the report. Also, the court rulec
that there was no power in the court to con
trol an act of discretion by the Presiden
or his delegates. See page 165. See also a
page 179 the court's ruling that any law rt
pugnant to the Constitution is void.
All of the above-related principles have
general relation to the matter in issue. How-
ever, it must be remembered that what wi
are here concerned with is not a suit by
? private citizen to force executive disclosurt
of information, as was the case in Marbur_
v. Madison, but it is an attempt by an agencl
of the Congress, in its official capacity, tc
obtain information that is needed to enabl
It to carry out its statutory duty.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 . CONGRESSIONAL RECORD? SENATE
?
2. Totten, Administrator, v. -United States,
)2 U.S. 105 (October 1875) :
Case involved a suit by a private claimant
Cor salary allegedly due claimant's intestate
:or services rendered pursuant to a secret
:ontract between one William A. Lloyd and
?resident Lincoln. Lloyd was hired by the
'resident as a spy for the Federal forces
,uring the Civil War. The court dismissed
he petition because of the confidential na-
ure of the contract. The reason given was
uat public policy forbids the maintenance
any suit the trial of which would inevi-
oly lead to the disclosure of matters which
e law itself regards as confidential.
3. Kilbourn v. Thompson, 103 U.S. 168
ctober 1880) :
An action for false imprisonment brought
inst the Clerk, Sergeant at Arms, and
eaker of the House of Representatives. A
Jpena was issued to Kilbourn to appear be-
a committee of the House of Representa-
es. He was commanded to bring with
'n certain papers. Kilbourn refused to
)duce the papers he was ordered to de-
,er. Kilbourn was taken into custody by
.e Sergeant at Arms and was placed in the
Itrict jail. During the time Kilbourn was
bpenaed and arrested there was then pend-
; in the District Court for the Eastern
strict of Pennsylvania an action concern-
,g the subject matter over which the Con-
ess had initiated its investigation. The
?urt held that the subject matter of the
ivestigation was, therefore, judicial, not
gislative, and that the House of Repre-
mtatives lacked power to compel Kilbourn
testify on the subject, or to present the
-,pers demanded.
Of course, this case is one of the basic
dings on the matter of the separation of
awers and the lack of authority in any
se of- the three branches to interfere with
function of another. Be this as it may,
,le ruling is premised on the basis of in-
rference by the legislature with a matter
ending before the judiciary. The matter
I hand concerns a legitimate function of
a agency of the Congress carrying out its
7,atutory function: on this basis the Kil-
.ourn case is distinguished from proper
plication.
4. Vogel v. Gruaz, 110 U.S. 311 (February
, 1884) :
Action brought to recover damages for the
aeaking and publishing' of false, malicibus,
.:andalous, and defamatory words, charging
he plaintiff with being a thief and with
,aving stolen the money of the defendant.
:lase goes to the privileged communication
etween attorney and client. The words
omplained of were spoken by the defendant
-hen he approached the State's attorney
lid told him of his charge against the plain-
if. The . court ruled that the defendant
-as seeking professional advice as to his
ight, and that of the public through him,
> have a criminal prosecution commenced
y the State's attorney: The court went on
o say that "it is the duty of every citizen
o communicate to his Government any in-
orrnation which- he has of the commission
f an offense against its laws; and that a
aurt of justice will not compel or allow
uch information to be disclosed, by the in-
armer himself, of by any other person, with-
ut the permission of the Government, the
-vidence being excluded not for the protec-
on of the witness or of the party in the
.articular case, but upon general grounds
t public policy, because of the confidential
iature of such communications."
Here again we have a suit between private
.arties, and the case does not involve the
vailability of executive department records
the Congress or an agency of the Con-
ress.
5. In re Quarles and Butler, 158 U.S. 532
May 20, 1895) :
The petitioners had conspired to do bodily
'arm to one Henry Worley because in his
No. 163-14
reporting them to the authorities-for vio-
lating the internal revenue laws. The peti-
tioners had been accused of carrying on the
business of a distiller without having given
bond as required by law. One of the prin-
ciples laid down in the case is that a citi-
zen has a constitutional right to inform the
authorities of a violation of law and that
any information thus given is a privileged
and confidential communication. Case in-
volves a suit by private parties, and does
not in any way involve right of Congress or
its delegates to executive information. ?
6. Boske v. Comingore, 177 U.S. 459 (April
9, 1900) :
Action was instituted in a county court of
Kentucky by the Commonwealth of Kentucky
against Elias Block & Sons for the purpose
of ascertaining the amount and value of a
large amount of whisky which, it was alleged,
the defendant had in their bonded ware-
houses for a named period, but had not
been listed for taxation, and of enforcing
the assessment of payment of State and
county taxes. The collector of internal rev-
enue had certain books and papers on file
in his office that could prove to be of value
to the Commonwealth in its action. A Treas-
ury Department regulation forbade the dis-
semination of this information. When or-
dered to produce the books and records the
collector refused and was fined and ordered
to jail for contempt. The Supreme Court
held that the regulation in question was
proper under section 161 of the Revised
Statutes giving the departments authority
to issue regulations not inconsistent with
law for the use and custody of its papers,
and the collector was bound thereby and
justified in his refusal to give out the in-
formation. The question of access to docu-
ments between Federal departments was not
Involved.
7. In re Huttman, '70 F. 699 (November 1,
1895) :
Federal collector of internal revenue was
called upon to testify in a State court with
reference to something that transpired in his
office between him and a citizen that related
to enforcement orthe revenue laws. The
citizen had filed for a retail liquor dealer's
stamp. Although the State did not attempt
to secure the actual papers that were com-
piled -incident to the application, the State
did attempt to obtain testimony from the
Federal officer which would disclose the in-,
formation incorporated in the papers which
by regulation could not be made available
outside the Internal Revenue Service. It
was held that the fact thg information
sought was felt necessary for the proper en-
forcement of the State's prohibitory liquor
law could furnish no 'ground for ignoring a
Federal regulation prohibiting departmental
officers from disclosing fecords, and that if
the records were not for disclosure, the in-
formation therein also was not for disclosure.
As in the BoVee V. Comingore case, the
matter in issue here was not a question in-
volving the Congress and the executive agen-
cies but dealt with the supremacy of laws
and regulations having the effect of laws of
the Federal Government over State laws.
8. In re Lamberton, 127 F. 446 (July 28,
1903) :
A Federal deputy internal revenue collec-
tor refused to answer a question asked him
in an action in a State court where the State
was seeking information to enable it to pun-
ish persons for the violation of State laws.
The Federal collector refused to answer
these questions because he obtained the in-
formation sought by Virtue of his official ca-
pacity and he was not allowed to disclose
such information because Of directives from
his superior. The court held that the col-
lector could not be forced to testify as to
things he learned in his official capacity.
The case did not involve Congress seeking
information from the executive department.
9. In re Valecia Condensed Milk Co. v.
Warner, 240 F. 310 (February 6, 1917) :
17943
The secretary of a state tax commission
was served with a subpena to appear before
a referee in bankruptcy to testify and pro-
duce all reports, etc., in the possession of the
conimission relating to the bankrupts. The
secretary appeared and answered that the
only papers of the kind required were the in-
come tax returns of the respective bankrupts
and that a State statute prohibited him
from permitting such return to be examined
by anyone and he refused to produce them.
Court reversed the district court's ruling that
the secretary was in contempt. This in-
volved a suit against a State official. It did
not involve an attempt by the legislature to
secure the papers of the executive.
10. Elrod v. Moss et at., 278 F. 123 (Novem-
ber 1, 1921) : ,
In an action for alleged unlawful arrest
and illegal search of a vehicle on suspicion
that a man was transporting unlawful
whisky, a sheriff testified he communicated
to the defendant, Moss, a State constable,
that plaintiff was transporting liquor. Case
holds that the lower court properly refused
to require the sheriff to disclose the source of
this information, citing the Vogel v. Gruaz
and Quarles cases. The case does not in-
volve the right, or lack of a right, of the
Congress to have access to executive papers.
11. Arnstein et at. v. United States, 296 F.
946 (February 5, 1924) :
Appellants were indicted for a conspiracy
for bringing into the. District of Columbia
stolen stock in violation of section 836(a)
of the District Code. They were convicted
and alleged error. Case holds, among other
things, that statement made to an assistant
district attorney in his official capacity while
Investigating a crime are privileged and dis-
closure cannot be compelled without the
consent of the Government.
The case does not involve an attempt by
the Congress or its agent to obtain papers
belonging to or under the control of the
executive.
12. Gray v. Pentland, 2 Sergeant & Rawles
(Pennsylvania) 22 (September 1815) :
Case arose because of a deposition made by
Gray in which he alleged that Pentland was
unfit to perform the duties of the officer of
prothonotary of the court of common pleas
because of his frequent intoxication. The
deposition was sent to the Governor and the
court attempted to make the Governor de-
liver the deposition. The Governor refused.
The court in effect ruled that the Governor
best knows the circumstances under which
the deposition had been delivered to him and
consequently he should exercise his own
Judgment with respect to the propriety of
producing the writing.
The case does not involve a congressional
attempt to obtain papers from the execu-
tive.
13. Thompson v. The German Valley Rail-
road Company, 22 N.J. Equity Reports 111
(October 1871) :
Governor of New Jersey failed to deposit
a private bill with the secretary of State.
A subpena duces tecum was served upon him
ordering him to appear and to produce an
engrossed copy of the bill. This the Gover-
nor refused to do stating by letter that al-
though 'he had respect for the court he did
not feel that they could force his compliance.
The cou* held that the Governor cannot be
examined as to his reasons for not signing the
bill. No order was made upon the Governor
to appear. If the Governor felt that he
should testify he could do so of his own voli-
tion. The court could hardly entertain pro-
ceedings upon hint by adjudging him in con-
tempt. The court went on to say that there
may be cases where the court might proceed
against the Governor for contempt if he,
without sufficient or lawful reasons, refused
to appear and testify but such was not the
case in the proceedings at hand.
The case did not involve an attempt by the
legislature to obtain copies of papers in the
possession of the executive.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17944 CONGRESSIONAL RECORD ? SENATE ,
14. Worthington v. Scribner, 108 Mass. 437
(March 1872) :
? Plaintiff was engaged in importing books
into the United States. It is alleged that
the defendants reported to the Treasury De-
partment of the United States that the plain-
tiff had purchased books with the intention
of bringing them into the United States at
a fraudulent undervaluation. The plaintiff
requested advice of the defendants if such
was reported to the officials of the Treasury
Department and if so, to state fully all that
was done, and requested copies of all written
communications, and the substance of all
oral statements.
.Court held that it was discretionary with
the Government to decide whether or not
to produce the information requested on
grounds of public policy and that the dis-
covery of documents which are thus pro-
tected from disclosure upon grounds of pub-
lic policy cannot be compelled, either by bill
in equity or by interrogation at law.
Case ?did not involve attempt by Congress
to obtain executive papers.
15. Appeal of John re. Hantranft, Governor
of the Uommonwealth, et al., 85 Pa. 433 (No-
vember 1, 1877) :
A subpena was issued against the Gover-
nor of Pennsylvania and other State officials
to appear before a grand jury that was? in-
vestigating a riot that occurred incident to
a conflict between the State National Guard
and a group of strikers in the empioy of tne
\. Pennsylvania Railroad Co. in July 1877.
The State officials refused to comply with
the subpena for the reason that any infor-
mation which they might have that would
be of value to the grand jury could be priv-
ileged.
The court held that the Governor is the
absolute judge of what official communica-
tion to himself or his department, may or
may not be revealed and is the sole judge
of what his official duties are. Also, it was
held that the Governor is exempt from the
process of the courts whenever engaged in
any duty pertaining to his office and his
Immunity extends to his subordinates and
agents wnen acting in their official capacity.
This was an attempt by the randjury to
get the information. It did not involve an
attempt by the legislative to obtain the pa-
pers Of the executive.
.16. Volume 2, Robertson, Trials of Aaron
Burr (pp. 533-536) (summer term of lbu7):
This case involved the trial of Aaron Burr,
former Vice President of the United States,
arising from the so-called Burr Conspiracy.
Burr wanted to have produced into evi-
dence a certain letter in the possession of the
President which he felt might be of valtie
in his defense. The President did not refuse
to 'deliver the letter but simply turned it
over to the U.S. attorney witn tile advice that
he use his discretion as to wnat part, if any,
of the letter should be produced. The U.S.
attorney allowed part of the letter to be used
but withheld otner parts because ? he felt
that those parts were confidential.
The court ruled that although generally
the President may be subject to the general
rules applicable to others, he may have
sufficient motives for declining to ,produce
a particular paper and 'those motives may
be such as to restrain the court from en-
forcing the production of the papers which
the. President saw fit to withhold.
The President in the Burr case* gave no
reason at all for withholding the paper called
for. The court said, "The propriety of with-
holding it must be decided by himself, not
by another for him. Of the weight of the
reasons for and against producing it, he is
himself the judge. It is their operation on
his mind, not on the minds of others, which
must be respected by the .court."
This case, of course, involved the trial of
Aaron Burr for treason. It did not involve
an attempt by the Congress to obtain papers
from the executive. ,
Earn-Err IV?C
THE AUTHORITY AND DUTY OP THE COMPTROIe.
LER GENERAL To INQUIRE INTO EFFICIENCY
AND ECONOMY IN THE GOVERNMENT DEPART-
MENTS AND. ESTABLISHMENTS AND A REPORT
THEREON TO THE CONGRESS AND ITS COM-.
IVIITTEES
The General Accounting Office unquestion-
ably has the right and duty to inquire into
the efficiency and economy in the use of
public funds and property in Government
departments and establishments and to
make reports thereon to the Congress and
its Committees on Government Operations
and Appropriations. Such authority is
spelled out in section 312 of the Budget and
Accounting Act, 1921 (/12 Stat. 25, 31 U.S.C.
53), and section 206 of the Legislative Re-
organization Act of 1946 (60 Stat. 837, 31
U.S.C. 60) , and the legislative history of
those provisions.
Section 312(a) of the Budget and Account-
ing Act provides:
? "The Comptroller General shall investi-
gate, at the seat of Government or elsewhere,
all matters relating to the receipt, ditburse-
ment, and application of public funds, and
shall make to the President when requested
by him, and to Congress at the beginning of
each regular session, a report in writing of
the work of th.e General Accounting Orrice,
containing recommendations concerning the
legislation he may deem necessary to facili-
tate the prompt and accurate rendition and
settlement of accounts and concerning such
other matters relating to the receipt, dis-
bursement, and application of public funds
as he may think advisable. In such regular
report, or in special reports at any time when
Congress is in session, he shall make recom-
mendations looking to greater economy or
efficiency in public expenditures."
House Report No. 14, 67th Congress, 1st
session, on the bill H.R. 30, which with some
modification became the Budget and Ac-
counting Act, clearly indicates that criticism
of wastefulness and inefficiency in the Gov-
ernment departments and agencies was the
most cogent reason for creating the General
Accounting Office. On pages 7 and 8 of the
report the Select Committee on the Budget
stated: ?
"The bill creates an independent estab-
lishment known as the General Accounting
Office, * * *. Under the present plan the
Congress has no power or control over appro-
priations after they have once been made.
It has no knowledge as to how the expendi-
tures are made under these appropriations,
and inasmuch as the Comptroller of the
Treasury and the six auditors owe their ap-
pointment to .the President, they could not
hope to hold their positions if they criticized
/ wastefulness or extravagance or inefficiency
in,,any of the departments. * * *
"The only way by which Congress can hold
a check on expenditures is to continue a con-
trol and audit of the accounts by an inde-
pendent establishment. * * * The creation
of this office will enable it to furnish infor-
mation to Congress and to its committees re-
garding the expenditures of the Government.
He [the Comptroller General] could and
would be expected to criticize extravagance,
duplications, and inefficiency in executive
departments. He' could do this without fear
of removal. Under the present plan, neither
the Comptroller of the Treasury nor the six
auditors make such criticism. The reasons
why they do not are apparent, yet opportunity
for wholesome criticism abound in every
department."
The debates on HR. 9783, 66th Congress,
an earlier form of the Budget and Accounting
Act which was passed by the Congress but
vetoed by President Wilson for reasons not
connected with section 312 of the Budget and
Accounting Act, indicate that section was in-
tended to provide authority for inquiries as
to inefficiencies in the use of public funds by
Government agencies. Section 13 of that bill,
September 14
prior to its amendment on the floor of the
House, contained the-phrase-"receipt and dis-
bursement of public funds" in the two places
where the phrase "receipt, disbursement, and
application of public funds," appear in sec-
tion 312 as finally enacted. Congressman
Luce expressed the view that, although the
committee report stated that the Comptroller
could and would be expected to criticize ex-
travagance, duplication, and inefficiency, the
bill did not tell him to do so. In the course
of the debate, he stated:
"All' I am asking is, if you mean to author
ize this man to criticize, to study, and inve:.
tigate for the purpose of securing econom-
that the committee shall, if they do not ay
prove my way of directing it, suggest son
way of their own, so that no man when 1.
goes into that office can rely upon ti
statute and say, 'This law imposed on me bt
a purely ministerial function, made .me
human adding machine, and my only duty,
to total up the figures that are laid befo?
me and transmit them to the Congress.'"
Congressman Luce therefore offered a
amendment to change the language of di-
phrase to its present form. After a fu.
discussion of the matter, appeasing at [-
CONGRESSIONAL RECORD (pt. 7) 7291-729
in which the intent of the Congress w
fully explained the amendment was agrec
to. The language as thus perfected was car
ried to the conference report and, followin
the Presidential veto of that bill, include.
in identical import in section 312 of th
1921 act.
A few selected remarks from the House de
bate on Ha. 9783 are attached.
Section 206 of the Legislative Rebrganiza
tion Act of 1956, supra, is explicit in it.
direction that the General Accounting Offic
shall make inquiries concerning the econom
and efficiency with which public funds hay-
been administered or expended. That sec.
tion reads as follows:
"SEc. 206. The Comptroller General is au-
thorized and directed to make an expendi
ture analysis of each agency in the executir
branch of the Government (including Gov-
ernment ' corporations), which, in th
opinion of the Comptroller General, wil;
enable Congress to determine whether pub
lic funds have been economically and effi-
ciently administered and expended. Report:
on such analyses shall be submitted by th
Comptroller General, from time to time, ti
the Committees on Expenditures in th?
Executive Departments, to the Appropria
tions Committees, and to the legislative
committees having jurisdiction over .
lation, relating to the operations of the re-
spective agencies, of the two Houses."
The legislative history, pertaining to tilt
act indicates' that section 206 was a part o,
the comprehensive reorganization of th,
Congress itself. Numerous witnesses ap?
peering before the Joint Committee on Re-
organization advocated that the Congres.
establish more effective machinery for th?
surveillance of budgetary estimates as wel.
as execution of the laws, and advocatec
among other measures that the General Ac-
counting Office be used to greater advantag?
for this purpose. For example, the follow
ing colloquy between Vice , Chairman Mon
roney and Senator Burton, discussing th.
Heller report on strengthening the Congress
appears at page 825 of the transcriptis
hearings before the joint committee on th
organization of Congress pursuant to Hous.
Concurrent Resolution 18, 79th Congress, is
session:
? "The VICE CHAIRMAN/I agree we need
great many more auditors and accountant
to help the committees, but I think the in
dividual Members are in need of hel;
through such agencies as the _Comptroller
General, so as to have access to inside re
ports as to the wisdom with which th
money has been spent. * * *
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 CONGRESSIONAL RECORD ? SENATE
"Senator BURTON. I do wish to commend
the work of the Comptroller General. I
think it is helpful and should be extended."
Particularly noteworthy also is Mr. Robert
Heller's discussion of his report on page 856
of the hearings, as follows:?
"Recommendation IX: Congress should
insure that the General Accounting Office is
an effective instrument for control of execu-
tive expenditures.
"1. By giving it audit power over all Fed-
eral Agencies, Departments, and Corpora-
tions.
"2. By insisting on current and useful re-
ports from the Office.
"3. By establishing a Joint Committee on
Public Accounts to insure action on these
reports.
"A joint committee to review and obtain
action on reports emanating from the Gen-
eral Accounting Office is favored, rather than
having the Office report direct to the several
regular standing committees for the follow-
ing reasons:
"1. Since the joint committee would have
no other duties, consideration of new leg-
islation and other matters would not inter-
fere with analysis of audit reports."
See, also, the comment on pages 7 and 8,
33, 525-550, particularly 536, 775, 984, and
1,000, of the hearings.
The bill resulting from these hearings, S.
2177, 79th Congress, provided for such a plan,
except that, instead of a joint committee,
the Committee on Expenditures in the Exec-
utive Departments in each House was given
the specific duty to receive and review re-
ports of the Comptroller General and to
study the operation of Government activities
at all levels with a view to determining its
economy and efficiency. To insure that
these and other committees would receive
necessary information, provision was made in
section 206 for the making of expenditure
analyses by the General Accounting Office,
upon which such determinations could be
based. This relationship is made clear on
page 6 of Senate Report 1400, 79th Congress,
Which In pertinent part reads:
"A third group of provisions in the bill is
designed to strengthen congressional surveil-
lance of the execution of the laws by the
executive branch. Congress has long lacked
adequate facilities for the continuous in-
spection and review of administrative per-
formance. * * *
"To remedy this situation, S. 2177 would
authorize the standing committees of both
Houses to exercise continuous surveillance
of the execution of the laws by the admin-
istrative agencies within their jurisdiction.
Armed with the power of subpena and staffed
with qualified specialists in their respective,
provinces of public affairs, these committees
would conduct ,a continuous review of the
activities of the agencies administering laws
originally reported by the legislative com-
mittees. * * *
"As a further check upon the financial
operations of the Government and its care
in handling public funds, the bill author-
izes and directs the Comptroller General
to make administrative management analy-
ses of each agency in the executive branch,
including Government corporations. Such
analyses, with those made by the Bureau
of the Budget, Will furnish Congress a double
check upon the economy and efficiency of
administrative management. Reports on
such analyses would be submitted by the
Comptroller General to the Expenditures,
Appropriations, and --appropriate legislative
committees, and to the majority and minor-
ity policy committees of the two Houses."
The designation of each of these com-
mittees has since been changed to Commit-
tee on Government Operations.
The Budget and Accounting Procedures
Act of 1950 in no way lessened the responsi7
bility of the General Accounting Office to
make inquiry concerning efficiency in the
use of public funds and property. On the
contrary, section 117(a) of the act (31 U.S.C.
67(a) ) specifically provides that:
"Except as otherwise specifically provided
by law, the -financial transactions of each
executive, legislative, and judicial agency,
including but not limited to the accounts of
accountable officers, shall be audited by the
General Accounting Office in accordance
with such principles and procedures and
under such rules and regulations as may be
prescribed by the Comptroller General of
the United States."
Mr. Taylor, October 18, 1919:
"They will have to be cold blooded and
cut down appropriations in every direction
that they deem proper and eliminate dupli-
cation and any superfluous employees and
antiquated methods and antiquated people
and inaugurate efficiency and up-to-date
business methods, and they have very great
and far-reaching responsibilities, and they
must have a free hand to properly perform
their very great duties."
Mr. Hawley, October 18, 1919:
"Yes, he is our officer, in a measure, get-
ting information for us, to enable us to
reduce expenditures and to keep advised of
what the spending departments are doing.
If he does not do his work properly, we, as
practically his employers, ought to be able
to discharge him from his office."
Mr. Fess, October 18, 1919:
"The auditing, then, is entirely independ-
ent of the spending departments."
Mr. Purnell, October 20, 1919:
"The third step, and a most important
one, is the audit and control of the expendi-
tures of the Government. Heretofore the
executive branch of the Government has
occupied the awkward position of auditing
its own accounts. All are agreed that this
is wrong in principle. It was the unanimous
judgment of the committee that the power
of audit and control sheuld be lodged with
the legislative rather than the spending
branch of the Government. We propose to
clothe the executive with full power to sur-
vey and determine the financial needs of
the Government as well as make , estimates
therefor. We reserve to the Congress the
power of making the appropriations and of
seeing that the money is properly spent.
This bill provides for an officer to be known
as the Comptroller General, whose duty it
shall be to audit and pass upon the legality
of all Government expenditures. He shall
be responsible only to Congress and shall be
removable by Congress alone, and then only
for cause. He and his assistant are to be
appointed by the President, with the ap-
proval and consent of the Senate."
Mr. Good, October 21, 1919:
"The ideal system of Government finance,
so far as appropriations and expenditures
go, embraces two distinct and separate func-
tions. In the first place, it is the duty of
the office that pays out the money to make
an estimate of what its requirements will
be. Congress acts upon that estimate.
Then comes this separate and distirict office,
semijudicial in character, which determines
whether or not expenditures made are legal,
and then audits the account. That depart-
ment is intended as a check against ex-
travagance. That department is intended
to have a reflex influence upon the Bureau
of the Budget. The Bureau will know at all
? times that that department is watching it;
and that for every appropriation that is
made there will have to be a legitimate use."
Mr. Williams, October 20, 1919:
"The bill then provides for the appoint-
ment of an official termed the 'Comptroller
General,' whose duty it is to follow every
appropriation made by Congress and see
17945
that the money is properly spent. This will
be of invaluable service to Congress, as this
official, being entirely independent of every
other branch of the Government, is directly
responsible to Congress."
Mr. Lanham, October 20, 1919:
"The primary dual purpose of the pro-
posed act is evidently to foster and promote
economy and to discover and prevent dupli-
cation both in governmental effort and gov-
ernmental expenditure. Conflicting claims
and overlapping of functions is an expensive
incident of our administrative system.
? "It seems to me that the adoption of
some such method as that here suggested
will likely insure economy by enabling the
discovery of duplication and extravagance."
Mr. Bland, October 21, 1919:
"Did not the committee Contemplate that
the Comptroller General might not only be
brought into conflict with the executive de-
partment and with the executive branches
of the Government, but sometimes with one
side or the other of the aisle in Congress,
and possibly both sides, in the impartial
discharge of his duties?"
Mr. Good, October 21, 1919:
"Absolutely. That department ought to
be independent and fearless to criticize
wrong expenditure's of money wherever it
, finds them. It ought to criticize inefficiency
in every executive department where ineffi-
ciency exists, and one of the troubles with
our present system is that the auditors dare
not criticize. If they criticize, their politi-
cal heads will come off."
EXHIBIT IV-D
MEMORANDUM OF LAW?RIGHT OF ACCESS BY
THE COMPTROLLER GENERAL (AN AGENT OF
THE CONGRESS) TO AN Arit FORCE INSPECTOR
GENERAL'S REPORT ENTITLED "SURVEY OF
MANAGEMENT OF THE BALLISTIC MISSILE
PROGRAM" -
(Prepared for the Special Subcommittee on
Government Information of the Committee
on Government Operations, House of Rep-
resentatives)
I. JURISDICTION OF SPECIAL SUBCOMMITTEE ON
GOVERNMENT INFORMATION
The Special Subcommittee on Government
Information was chartered on June 9, 1955,
by Congressman WILLIAM L. DAWSON, chair-
man of the committee on Government Op-
erations of the House of Representatives. He
directed the subcommittee to study,charges
that Federal executive and independent
agencies have withheld pertinent and timely
information from the Congress, the press,
and the public. His chartering letter to
Congressman JOHN E. Moss, subcommittee
chairman, stated that the subcommittee's
study was to cover the operations of "the ex-
ecutive branch at all levels" to determine
the "efficiency and economy of such opera-
tion in the field of information." He stated
that the subcommittee's reports should "fully
and frankly diSclose any evidence of unjusti-
fiable suppression of information or distor-
tion or slanting of facts" and concluded that
the subcommittee was to "seek practicable
solutions for such shortcomings, and rem-
edies for such derelictions, as you may find
and report your findings to the full commit-
tee with recommendations for action." (Sub-
committee -hearings, p. 20.)
I/. SECRETARY OF THE AIR FORCE DENIES THE
COMPTROLLER GENERAL ACCESS TO AN INSPEC-
TOR GENERAL'S REPORT ENTITLED "SURVEY OF
MANAGEMENT OF THE BALLISTIC MISSILE PRO-
GRAM"
The Secretary of the Air Force has refused
to give access or make available to the Comp-
troller General a final, official report made by
the Inspector General of the Air Force en-
titled "Survey of Management of the Bal-
listic Missile Program." The Secretary has
stated that "Inspector General's reports are
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17946 CONGRESSIONAL RECORD ? SENATE
prepared solely for the use of responsible
officials Within the Department of the Air
Force."
"In addition, the report which you re-
quested is a report concerning the internal
management of this Department, and it was
prepared solely for the benefit and use of
those officers and employees of this Depart-
ment who are responsible for its adminis-
tration. The release of such reports to per-
sons outside the Department would have a
serious adverse effect on the effective ad-
ministration of the Department.
"These considerations compel me to con-
clude that the public interest would best be
served by not releasing the report which you
have requested." 2
III. QUESTIONS OF LAW
This withholding of information by the
Secretary of the Air Force from the Comp-
troller General raises some pertinent ques-
tions which warrant precise legal analysis.
These questions involve:
1. The constitutional duties and functions
of the Congress and the President.
2. The authority of the head of a depart-
ment, created by Congress, to ignore, act
contrary to, or to refuse to act in accord-
ance with a law enacted by the Congress
and signed by thaPresident.
3. The authority of the head of a depart-
ment to deny "access to, and the right to
examine, any books, documents, papers, or
records," to an agent of the Congress (the
General Accounting Office) and an agent
Of the President (Bureau of the Budget),
both specifically authorized by act of Con-
gress for the purpose of securing such in-
formation.,
4. The authority of the head of a depart-
ment considering the importance of the law
here involved to act without seeking specific
advice and instruction from the President
of the United States who has the constitu-
tional responsibility to "take care that the
laws be faithfully executed."
5. The authority of the head of a depart-
ment to ignore an opinion of the Attorney
General specifically interpreting this law.
? 6. The authority of the head of a depart-
ment to decide what books, documents, pa-
pers, or records are necessary to the proper
p.erformance of the duties and functions of
an independent officer of the Government
vested with the authority to make such de-
terminations by statute.
7. The authority of the head of a depart-
ment to prevent an independent review of
matters "relating to the receipt, disburse-
ment and application of public funds" un-
der the control of the department head with
the result that there is no review of the
performance of that organization (Inspector
General).
IV. NO SECURITY QUESTION, NAMES OF CONFI-
DENTIAL INFORMANTS, PERSONNEL OR CRIMI-
NAL INVESTIGATIONS INVOLVED
It is important before proceeding with
? this legal analysis to note that the Secre-
tary of the Air Force does not base his with-
holding of access to the Inspector General's
Report on Executive Order 10501. Hence,
there are no matters of security or national
defense involved concerning the availability
of this report to the Comptroller General.
The chairman of the subcommittee re-
quested the following question be an-
swered in writing prior to this hearing:
"Does your refusal of access to the -report
stem in any way from the fact that the re-
port is classified under Executive Order
10501? If so, explain fully and cite the
2 See letter of July 39, 1958, from Secretary
of the Air Force to the Comptroller General
(p. 3572).
3 Public Law 13, 67th Cong., Budget and
Accounting Act, 1921 (42 Stat. 20).
statutory authority for withholding from the
GAO on those grounds."
The Department of the Air Force replied:
"No. The Secretary of the Air Force did
not base his refusal to furnish the report to
the Comptroller General on. the ground that
It was classified under Executive Order
10501.
In addition, the chairman was specific in
his question relative to the names of con-
fidential informants as follows:
"Does the report include the names of
confidential informants?"
The Department of the Air Force replied:
"The report does_ not include the names
of confidential informants."
With respect to personnel or criminal in-
vestigations the chairman asked:
"Does the 'report involve a personnel or
criminal investigation?"
The Air Force replied: "No." 4
It is significant to note that in this par-
ticular instance no claim has. been made or
referred to relating to the President's unique
role as Commander in Chief of the Army and
the Navy.,
V. CONSTITUTIONAL GRANTS OF POWERS, DUTIES,
AND RESPONSIBILITIES TO THE CONGRESS
For the purpose of this legal analysis it is
deemed advisableto consider the grants of
power, duties, and responsibilities conferred
by the Constitution on the Congress and
to ascertain if the Congress has made laws
to carry out its responsibilities. The sec-
tions of the Constitution which are consid-
ered to be pertinent to this subject matter
(withholding of information by Air Force
Secretary) and the availability of informa-
tion to the Comptroller General are as fol-
lows:
(a) "All legislative powers herein granted
shall be vested in a Congress of the United
States, which shall consist of a Senate and
House of Representatives"; 6
(b) "All bills for raising revenue shall
originate in the House of Representatives"; 7
(c) "Every bill which shall have passed
the House of Representatives and the Sen-
ate shall, before it becomes a law, be pre-
sented to the President of the United
States";
(d) "The Congress shall have power to
lay and collect taxes, duties, imports, and
excises, to pay the debts and provide for
the common defense and general welfare of
the ;United States"; 9
(e) [The Congress shall have the power]
"To make rules for the government and reg-
ulations of the land and naval forces"; 10
(f) [The Congress shall have the power]
"To make all laws which shall be necessary
and proper for carrying into execution the
foregoing powers, and all other powers vest-
ed by this Constitution in the Government
of the United States, or in any department
or officer thereof." ',
(g) "No money shall be drawn from the
Treasury, but in consequence of appropria-
tions made by law; and a regular statement
and account of the receipts and expendi-
tures of all public money shall be published
from tirne to time." 12
To perform its constitutional responsibili-
ties as set forth in the above-quoted sections
?4 See letter to chairman, Government In-
formation SUbcommittee, Committee on
Government Operations, dated Oct. 27, 1958,
and attachment (p. 3740).
5 Constitution of the United States, art. II,
sec. 2.
6 Constitution of the United States, art. I,
sec. 1.
7 Id., sec. 7.
81d., sec. '7.
91d., sec. 8.
10 Id., sec. 8.
11Id., sec. 8.
1, Id., sec. 9.
September 14
?
of the Constitution and "to make the laws,"
it is absolutely essential that Congress have
access to or establish the means to obtain,
information and that such information
should be accurate, pertinent, - factual,
timely, and authentic. No one will deny
that most of the information needed by
Congress to enable it to perform its legisla-
tive functions on "appropriation" and "ex-
penditure of the public money" must neces-
sarily come from departments and agencies
of the Government. Congress has provided
the necessary laws and machinery for the
President and for itself to obtain the in-
formation on which to base recommenda-
tions or legislative proposals. It is not for
the heads of Federal departments and agen-
cies, all created by Congress, to determine
what information the Congress needs or re-
quires to perform its constitutional func-
tions. Under the Constitution, it is incum-
bent and mandatory upon the President and
the heads of departments and agencies to
comply with and take care that laws en-
acted by the Congress be executed in ac-
cordance with the law.
VI. CONGRESS MAKES THE LAW?"BUDGET AND
ACCOUNTING ACT, 1921"
The Congress in 1921, and in accordance
with the above-quoted paragraphs (a) and
(1) of its constitutional powers, enacted the
Budget and Accounting Act,1921, entitled,
"An act to provide a national budget system
and an independent audit of Government
accounts, and for other purposes.", The
legislative history of this act makes it abun-
dantly clear that its main purpose was to
establish Presidential and congressional du-
ties and responsibilities which should lead to
greater economy and efficiency in the admin-
istration and operation of Government de-
partments and agencies.
By this act the Congress provided the
necessary law and machinery to enable it to
carry out the constitutional grants of powers
as quote above in paragraphs (b), (d), (e),
and (g). For example,- section 201 states:
"The President shall transmit to Congress
? * * (a) estimates of the expenditures and
appropriations necessary in his judgment for
the support of the Government for the en-
suing year; * * ? (c) the expenditures and
receipts of the Government during the last
completed fiscal year; (d) estimates of the
expenditures and receipts of the Government
during the fiscal year in progress; * *."
Section 202(a) provided:
"If the estimated receipts for the ensuing
fiscal year contained in the budget * ? ?
are less than the estimated expenditures for
the ensuing fiscal year contained in the.
budget, the President in the budget shall
make recommendations to Congress for new
taxes, loans, or other appropriate action to
meet the estimated deficiency."
It is interesting to note, that with re-
spect to the budget preparation the Con-
gress provided the necessary means and ma-
chinery for the President to execute the law
and obtain all the necessary information,
books, documents, papers, or records, to
carry out its direction. Section 207 of the
act created a Bureau of the Budget and
stated:
"The Bureau, under such rules and regu-
lations as the President may prescribe, shall
prepare for him the budget."
In addition, section 209 provided:
"The Bureau, when directed by the Presi-
dent, shall make a detailed study of the de-
partments and establishments for the pur-
pose of enabling the President to determine
what changes (with a view of securing great-
er economy and efficiency In the conduct olle
public service) should be, made ? in (1) the
existing organization, activities, and methods
13 Public Law No. 13, elth Cong., approved
'June 10, 1921, 42 Stat. 10.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 CONORESSIONAL RECORD ? SENATE
of business of such departments or estab
lishments, (2) the appropriations therefor,
(3) the assignment of particular services, or
(4) the regrouping of services."
The Congress to insure that this law Was
to be properly executed and to enable an
executive agent of the President to have ac-
cess to all information provided in section
213:
"Under such regulations as the President
may prescribe (1) every department and es-
tablishment shall furnish to the Bureau such
information as the Bureau may from time to
time require, and (2) the Director and the
Assistant Director, or any employee of the
Bureau when duly authorized, shall for the
purpose of securing such-tinformation, have
access to, and the right to examine, any
books, documents, papers, or .records of any
such department or establishment."
Note that the law does not provide for any
exceptions in departments and agencies; it
specifically states "every." Neither does the
law provide that the head of any department
or agency may decide or judge what infor-
mation the Bureau "may from time to time
require" to perform its statutory functions
prescribed in accordance with law. Nowhere
in thea entire legislative history of this act
did any Member of Congress object or ques-
tion these sections of the act, nor did the
President.
Now consider the position the Secretary of
the Air Force has taken as set forth in his
letter of July 30, 1958, to the Comptroller
General, as compared with the law, the
"Budget and Accounting Act, 1921." The
Secretary states that the report is entitled
"Survey of Management of the Ballistic Mis-
sile Program." Such a report clearly falls
within section 209 of the act. It certainly
must contain itcms connected with the
Budget and with "economy and efficiency" in
the Department of the Air Force. Yet, the
Secretary writes to the Comptroller General:
"Inspector General's reports are prepared
solely for the use of responsible officials
within the Department of the Air- Force."
Does he mean by this statement that such
reports would not be made available to the
Bureau of the Budget or that even the Pres-
ident cannot have access to this "Survey of
Management of the Ballistic Missile Pro-
gram"? Every head of a department is re-
sponsible for knowing the law he adminis-
ters, and its legislative history. He is also
under oath to support the Constitution, in-
cluding the recognition that "This Constitu-
tion, and the laws of the United States
which shall be made in pursuance thereof,
shall be the supreme law of the land."" In
this case the law is crystal clear: No excep-
tion has been made for Inspector General's
reports. Legally there is but one inescapable
interpretation or conclusion; namely, said
report should and ought to be made avail-
able outside the Department of the Air
Force, if it is requested by proper authority.
The attention of the President and all of-
ficials in the departments and agencies of
the Government should be directed to
mother section of this act. Section 212
reads:
"The Bureau shall, at the request of-any
lommittee of either House of Congress hav-
ing jurisdiction over revenue or appropria-
tions, furnish the committee such aid and
-nformation as it may request."
This language is clear and concise. It was
enacted without any qualification by either
House of Congress or any objection from
the President of the United States. The
legislative history is devoid of any criticism
by auy Member of Congress or executive of-
ficial. It is also to be noted that the 'an-
.?
;nage in this section does not give any
discretion .to the Bureau of the Budget to
withhold any information it_posses,ses from
"Constitution of the United States, art.
VI. clause 2.
the proper congressional committees. Only
the Congress and its committees can decide
what information they desire from the
Bureau of the Budget. Thus Congress un-
equivocally established its right to obtain
from the Bureau of the Budget all of the
information it empowered the Bureau to
secure.
VII. CREATION or THE GENERAL ACCOUNTING
OFFICE
The Budget and Accounting Act, 1921, cre-
ated the General Accounting Office, and sec-
tion 301 specifically stated: "There is created
an establishment of the Government to be
known as the General Accounting Office,
-which shall be independent of the executive
departments and under the control and di-
rection of the Comptroller General of the
United States." As well as other functions,
'duties, and responsibilities, the act specifi-
cally enumerated statutory requirements
which are germane to the subject matter
under consideration, namely:
"SEC. 312. (a) The Comptroller General
shall investigate, at the seat of Government
or elsewhere, all matters relating to the re-
ceipt, disbursement, and application of pub-
lic funds, and shall make to the President
when requested by him, and to Congress at
the beginning of each regular session, a re-
port in writing of the work of the General
Accounting Office, containing recommenda-
tions concerning the legislation he may
deem necessary to facilitate the prompt and
accurate rendition and settlement of ac-
counts and _concerning such other matters
relating to the receipt, disbursement, and
application of public funds as he may think
advisable. In such regular report, or in
speCial reports at any time when Congress
is in session, he shall make recommendations
looking to greater economy or efficiency in
public expenditures.
"(b) He shall make such investigations
and reports as shall be ordered by either
House of Congress or by any committee of
either House having jurisdiction over reve-
nue, appropriations, or expenditures. The
Comptroller General shall also, at the re-
quest of any such committee, direct as-
sistants from his office to furnish the com-
mittee such aid and information as it may
request.
"(c) The Comptroller General shall speci-
ally report to Congress every expenditure or
contract made by any department or es-
tablishment in any year in violation of law.
(d) He shall submit to Congress reports
upon the adequacy and effectiveness of the
administrative examination of accounts and
claims in the respective departments and
estab/ishments and upon the adequacy and
effectiveness of departmental inspection of
the offices and accounts.
(e) He shall furnish such information re-
lating to expenditures and accounting to the
Bureau of the Budget as it may request from
time to time.
We have already considered how Congress
by law created the necessary means and ma-
chinery for the Bureau of the Budget and
the President to have access to information.
books, documents, papers, or records, of any
department or establishment. Let us now
Gprisider the law on this subject as it per-
tains to the Comptroller General. In lan-
guage almost identical to that relating to the
Bureau of the Budget, the law reads as
follows:
"SEc. 313. All departments and establish-
ments shall furnish to the Comptroller Gen-
eral 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 employ-
ees, 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
17947
such department or establishment. The au-
thority contained in this section shall not be
applicable to expenditures made under the
provisions of section 291 'of the Revised
Statutes."
The difference between section 313 and sec-
tion _213 is significant and should be noted.
Section 213 limits the Bureau of the Budget's
access to information by the phrase "such
regulations as the President may prescribe."
It does not, however, limit the President. On
the other hand, section 313 does not limit
the Comptroller General's access to informa-
tion by' Presidential regulation; rather it im-
poses a duty on all departments and estab-
lishments to furnish information which "he
[the Comptroller General] may from time to
time require of them."
VIII. LEGISLATIVE HISTORY
In addition to the statutory law, any legal
analysis without a full and thorough study of
the legislative history and intent of the Con-
gress would be incomplete and could be mis-
leading. With respect to the availability of
and access to, any books, documents, papers,
or records of any department or establish-
ment, by the General Accounting Office and
the committees of Congress, the record is
demonstrably clear. (The only exception
being to sec. 291 of the Revised Stat-1
utes, applying to confidential State De-
partment funds.) It should be noted ? here
--that there is a legal maxim applicable, viz,
expressio unius est exclusio a1terius.1, It
must be emphasized that every Member of
Congress and the President was in accord
with this provision of the law (sec. 313) .
The chairman of the select committe on page
'7085, CONGRESSIONAL RECORD dated October
17, 1919, with reference to' the establishment
of the Comptroller General's position stated:
"At present Congress has no power or con-
trol over appropriations .af ter they are once
made. This control passes to the executive
departments, and these departments practi-
cally audit their own expenditures, and the
legality of expenditures by an executive de-
partment is passed upon by an official .ap-
pointed, and who can be removed at any
time, by the Executive. After appropriations
are once made by Congress, the control over
expenditure of the money appropriated
passes from Congress. * * * The position
is a semijudicial one and the tenure of office
is made secure so long as the official per-
forms his work in a fearless and satisfactory
way. * * * Congress and its committees
will at all times be able to consult with offi-
cials of this department (GAO) regarding ex-
penditures and from it Will be able to obtain.
the most eliable information regarding the
use to which any appropriation has been put
or the efficiency of any department of the
Government. a a a If duplication, ineffi-
ciency, waste, and extravagance exist as the
result of any expenditure, the President will
be held responsible therefor if he continues
to ask for appropriations to continue such
practices. The knowledge on the part of
every executive and bureau chief that such
an independent and fearless department
exists, and that every act and deed they per-
form will come under the closest scrutiny of
this department, will in itself force a much
higher degree of efficiency in every depart-
ment of the Government. a * a The crea-
tion of an independent auditing department
will produce a wonderful change. The offi-
cers and employees of this department will
at all times be going into the separate de-
partments in the examination of their ac-
counts. They will discover the very facts
that Congress ought to be in possession of
and can fearlessly and without fear of re-
moval present these -facts to Congress and
its committees."
U.S. v. Barnes, 222 U.S. 513 (the expres-
sion of one thing is the exclusion of another.)
? Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17948
CONGRESSIONAL
Another Member of Congress, Mr. Madden,
of Illinois, on page 7094, CONGRESSIONAL REC-
ORD dated October 17, 1919, stated:
"I predict that with this measure enacted
into law economy in Government expendi-
tures will result, system will be inaugurated
where chaos now reigns, and opportunity for
information to the American people, such as
has never been afforded before, will be at the
disposition of any man who cares to know
about the finances of his country. And
there can be no doubt that a system of econ-
omy is bound to result when we throw the
limelight of publicity upon the acts not only
of the Congress and of its individual Mem-
bers, but on the President and every man
who owes allegiance to him in the executive
branches of the Government. I thank you."
One of the most pertinent exchanges
which took place during the debate on this
act and which emphatically, shows the legis-
lative intent in creating the General Ac-
Counting Office appears on page 7132, CON-
GRESSIONAL RECORD dated October 18, 1919:
"Mr. CLARK of Missouri. The chiefs of de-
partments, the heads of bureaus, and all that
kept exceeding the appropriations here until
Congress had to pass a law making it a crim-
inal offense for them to do it.
"Mr. GOOD. Yes; that is true.
"Mr. CLARK Of Missouri. Is this Comp-
troller General, or whoever or whatever he is
going to ber, supposed to be more economical
than the rest of these departments?
"Mr. GOOD. Absolutely so. This depart-
ment is created to put a stop to that sort of
thing in the executive department, and the
only way you can do it is to have men going
out through these other departments 365
days in the year to bring the Congress the
information as to the real status in those
departments. That is, in part, the purpose
of this department."
The importance of the position of the
Comptroller General and the requirement
that he have access to all the information he
determines is necessary and that Congress
intended he should have such information
is amply set forth on page 7136, CONGRES-
SIONAL RECORD, October 18.'1919:
"Mr. FESS. How independent do you make
the auditing system?
."Mr. HAWLEY. Absolutely independent
from the spending departments. We give it
a judicial status. It examines questions as
a court examines questions, upon the law
and upon evidence. * * * Yes; he is our of-
ficer, in a measure, getting information for
us, to enable us to reduce expenditures and
to keep advised of what the spending depart-
ments are doing."
Mr. Hawley emphasized the point further
on page 7138, CONGRESSIONAL RECORD, October
18, 1919, by stating:
"With the independent auditing system,
we .can get immediate information. Every
committee will have in the auditor's depart-
ment a staff that can be put, in case of need,
to gathering information quickly. We will
not have to introduce a resolution in the
House, have it considered, send it down to
a department, and, after waiting a time,
politely inquire whether or not they received
our letter; and then, when we do get the
information, have it practically of no value.
We will have an expert accounting depart-
ment that will quickly submit authentic in-
formation. That will increase the povVer of
Congress over appropriations, but at the
same time it Will increase our responsibility
in the matter of making appropriations."
Mr. Andrews, of Nebraska, on page 7199,
CONGRESSIONAL RECORD, October 20, 1919, dur-
ing his discussion of this act stated:
Efficiency
"This idea of efficiency is an indispensable
factor in correct accounting. The primary
duty of the accounting system is to enforce
a strict abservance of legal methods in the
collection and. disbursement of public reve-
RECORD ? SENATE
nues: The proper discharge of that duty
make it necessary for the officers and clerks
entrusted with that business to possess clear,
accurate knowledge of statutes, regulations,
and methods of public business. These facts
cannot be repeated too frequently or em-
phasized too strongly, because a great many
public officials act upon the assumption that
the accounting offices are chiefly, if not ex-
clusively, engaged in the posting of debts
- and credits that have been previously jour-
nalized by someone else. They do not seem
to think that a knowledge of law, regula-
tions, and Government business is of any
consequence whatever. But whether they do
or not those who are charged with the de-
velopment of ways and means to promote
the efficiency of the service should take into
account actual conditions and facts and
formulate plans accordingly."
Again Mr. Parrish, on page 7204, CONGRES-
SIONAL RECORD, October 20, 1919, stated his
views concerning the Comptroller General
and his duties:
"In other words, under the present system
Congress makes appropriations and the
money is turned over to the heads of the
various departments of Government, and
unless expensive investigation is ordered,
Congress does not know whether the money
was expended according to its wishes or not,
but under the auditing system there will be
made by the Comptroller General a careful
audit of all expenditures of the Government,
and the effect will be to advise Congress and
the people whether or not those intrusted
with the expenditures of public money have
carried out the wishes of Congress and the
people, and it goes without saying that this
check, no doubt, will encourage caution and
eeonomy in the public expenditures."
During consideration of the bill in the
House, Representative Byrns, of Tennessee,
ranking minority member of the House
Select Committee on the Budget, which had
initiated similar legislation in the preceding
Congress, and later chairman of the Com-
mittee on Appropriations, majority leader,
and Speaker of the House, said:
"The Comptroller General is the represen-
tative of Congress. He does not represent
the Executive in any sense of the word, and
the whole idea of the Budget Committee
was to make him absolutely and completely
independent of the Executive" (61 CONGRES-
SIONAL RECORD 1081).
The above-quoted statement by Congress-
man Byrns to the effect that the Comptroller
General is to be an arm of Congress was
categorically emphasized, and affirmed by
Congressman Good (chairman, Select Com-
mittee on the Budget, in charge of the bill
on the floor of the House), as follows:
"Under the law it is his duty to come to
the committees of Congress that have juris-
diction over appropriations, expenditures,
and revenues, and explain to them at all
times when there is any inefficiency, when
there is a waste or a lack of economy; and
when the Commissioner from the Bureau of
the Budget, or the President's staff, come
and explain the budget, sitting right there
they are brought to face the Comptroller.
General of the United States; and if a rep-
resentative of the Bureau of the Budget
states something that is not true, if he fails
to state the whole truth, the Comptroller
General sits there with the Committee on
Appropriations as an ,arm of Congress and
can supply the desired information" (61
CONGRESSIONAL RECORD 982) .
Congressman Bankhead stated:
"This office of Comptroller General which
we are seeking to establish is not a consti-
tutional one. It is clearly within the juris-
diction and province of the Congress to
establish an office of this character, and it
may be that without any constitutional
restraint Congress itself could name the of-
ficial to administer the law. But be that as
it may, it is a safe provision to allow this
SwtemIzer
man who is to perform the great duties of
Comptroller General to be absolutely free
and independent of any restraint by Execu-
tive interference. If he is to exercise the
functions of that office independently, if he
is to carry out the will of Congress as pro-
posed in this House bill, and protect the
Treasury and interest of the taxpayers, he
should be free and untrammeled from any
sort of interference from any source" (61
CONGRESSIONAL RECORD 986).
IR. PRESIDENT WILSON VETOES H.R. 9783 AND
STATES REASON -
Ha. 9783 was the original Budget and
Accounting Act. In his veto message, the
only objection raised by the President con-
cerned the constitutionality of the removal
authority pertaining to the Comptroller Gen-
eral's position. President Wilson's message,
contained on page 8610, CONGRESSIONAL REC..
ORD, June 4, 1920, States:
"To the House of Representatives:
"I am returning without my signature
H.R. 9783, an act to provide a national
budget system, an independent audit of Gov-
ernment accounts, and for other purposes.
I do this with the greatest regret. I am in
entire sympathy with the objects of this bill
and would gladly approve it but for the fact
that I regard one of the provisions contained
in section 303 as unconstitutional. This is
the provision to the effect that the Comp-
troller General and the Assistant Comptrol-
ler General, who are to be appointed by the
President with the advice and consent of the
Senate, may be removed at any time by a
concurrent resolution of Congress after no-
tice and hearing, when, in their judgment,
the Comptroller General or Assistant Comp-
troller General is incapacitated or inefficient,
or has been guilty of neglect of duty, or of -
malfeasance in office, or of any felony or con-
duct involving moral turpitude, and for no
other cause and in no other manner except
by impeachment.
"The effect of this is to prevent the re-
moval of these officers for any cause except
either by impeachment or a concurrent reso-
lution of Congress. It has, I think always
been the accepted construction of the Con-
stitution that the power to appoint officers
of this kind carries with it, as an incident,
the power to remove. I am convinced that
the Congress is without constitutional power
to limit the appointing power and its inci-
dent; the power of removal derived from the
Constitution * * S. I am returning this
bill at the earliest possible moment with the
hope that the Congress may find time before
adjournment to remedy this defect.
"Woonnow WILSON,
"THE WHITE Honsn, June 4, 1920."
The message of the President does not ob-
ject to any other provisions in the bill. It
must be assumed, without fear of contradic-
tion, that all other duties and responsibili-
ties vested by the bill in the President, the
Bureau of the Budget, and the General Ac-
counting Office were acceptable. In fact, the
language of the President gives every indi-
cation that all other features in the bill were
perfectly acceptable, including the provisions
relative to "access to any books, documents,
papers, or reports."
The objection raised by President Wilson
was considered by the Congress and the sec-
tion was changed to provide for a joint rather"
than a concurrent resolution of Congress.
This particular section 303 now reads in the
Budget and Accounting Act, 1921, as follows:
The Comptroller General or the Assistant
Comptroller General may be removed at any
time by joint resolution of Congress after
notice and hearings, when, in the judgmeKt
of Congress the Comptroller General or As-
sistant Comptroller General has become
permanently incapacitated or has been In-
efficient, or guilty of neglect of duty, or of
malfeasance. in office, or of any felony or
'conduct involving moral turpitude, and for
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 . CONGRESSIONAL RECORD ? SENATE 17949
no other cause and in no other manner ex-
cept by impeachment."
The ,legal 'effect of a joint resolution of
Congress is that such a resolution is sent to
'the President for approval. With this minor
:modification the Budget and Accounting Act,
1921, was enacted and sent to President War-
ren G. Harding who approved it on June 10,
1921. Thus we find two Chief Executives,
Presidents Wilson and Harding, approving
'tection 313 of the act as written.
X. ATTITUDE OF PRESIDENT WILSON
President Woodrow Wilson, who was one
?of the greatest supporters of the establish-
ment of a national budget system and who
had the opportunity to consider and object
to this law concerning the availability of in-
formation to the Congress, its communities,
and its agent, the Comptroller General, be-
lieved in the principles established in this
act. His attitude is significant because re-
search fails to reveal any instance wherein
he ever refused or denied access to informa-
tion requested by Congress although he was
the Chief Executive during World War I. As
recently as 1953 the United States Supreme
Court in United States v. Rnmely,10 quoted
President Wilson as follows:
"Unless Congress has and uses every means
of acquainting itself with the acts and dis-
position of the administrative agencies of
Government, the country must be helpless
to learn how it is being served and unless
Congress both scrutinizes these things and
sifts them by every form of discussion the
country must remain in embarrassing and
crippling ignorance of the yery affairs it is
most important that it should understand
and direct. The informing,function of Con-
gress should be preferred even to its legisla-
tive function."
XI. ADDITIONAL ACTION BY CONGRESS CONCERN-
ING THE COMPTROLLER GENERAL
Twenty-five years after the enactment of
the "Budget and Accounting Act, 1921," Con-
gress again clearly set forth its intention on
the duties and functions of the Comptroller
General in the Legislative Reorganization
Act of 1946, section 206 of Public Law No. 601,
enacted August 2, 1946 (79th Cong., 2d sess.)
provides:
"The Comptroller General is authorized
and directed to make an expenditure analyses
of each agency in the executive branch of
the Government (including Government
corporations) 'which, in ?the opinion of the
Comptroller General, will enable Congress to
determine whether public funds have been
economically and efficiently administered and
expended. Reports on such analyses shall
be submitted by the Comptroller General
from time to time, to the Committees on
Expenditures in the Executive Departments,
to the Appropriations Committee, and to the
legislative committees have jurisdiction over
legislation relating to the operations, of the
respective agencies, of the two Houses."
During the hearings before the Joint Com-
mittee on the Organization of Congress, 79th
Congress, 1st session, the* following state-
ment was made by Comptroller General Lind-
say C. Warren (p. 530) :
"And by increasing use of the General Ac-
counting Office on particular maters relating
to the expenditure and application of funds,
the Congress could better inform itself as to
how expenditures have been made and as to
the soft spots in the organization or activi-
ties of the agencies requesting funds. This
information would be available for use when
the agencies appeared before the Appro-
priations Committees requesting funds. In
other words the committee would have both
sides of the story. While the present man-
power situation and the tremendous job the
General Accounting Office now has, due to
10 U.S. v. Rumely, 345 U.S. 41.
war expenditures and the new corporations
audit work enjoined upon .us by the George
Act, would make it impossible for the Gen-
eral Accounting Office to undertake the job
immediately on a governmentwide basis,
this function could be developed gradually
and, I sincerely believe, would in time be-
come a great aid to the Congress and its
committees dealing with appropriations and
expenditures." 17
Congress thus reaffirmed and thereby
strengthened the statutory authority of the
'Comptroller General. The Congress in no
way authorized the President, the head of a
department or any officer of the Government
to decide what information the Comptroller
General should have to perform his statutory
duties.
The Congress by Public Law No. 784, en-
acted September 12, 1950, amended the act,
and reiterated and reemphasized a congres-
sional intent of 29 years. The Budget and
Accounting Procedures Act of 1950 provided
in section 111:
"It is the policy of the Congress in enacting
this part that?
"(d) The auditing for the Government
conducted by the Comptroller General of the
United States as an agent of the Congress be
directed at determining the extent to which
accounting and related financial reporting
fulfill the purposes specified, financial trans-
actions have been consummated in accord-
ance with laws, regulations, or other legal re-
quirements, and adequate internal financial
control over operations is exercised, and af-
ford an effective basis for the settlement of
accounts of accountable officers."
The ,House Committee on Expenditures in
Executive Departments, under Chairman
William L. Dawson, issued House Report No.
2556, to accompany HR. 9038, which became
the public law stated, at page 2 thereof:
"The auditing of the Federal Govern-
ment's financial transactions will continue
to be conducted by the Comptroller General
of the United States, as an agent of the Con-
gress, under provisions permitting more com-
prehensive and more selective audits, to be
developed in line with improved agency ac-
counting systems, internal controls, and
related administrative practices."
And at page 16, under the heading "Con-
clusions," it was stated:
'The continuation of the functions of the
General Accounting Office, as an s,gency of
the Congress, is essential to the mainte-
nance of -adequate appropriation and ex-
penditure control by the Congress over the
Federal Government * * S.
"It is also the opinion of your committee
that there is an urgent need for the im-
provement of budgeting, accounting, and fi-
nancial reporting of the Government. These
fields should be simplified, modernized, and
made effective to the maximum extent pos-
sible * * *. While HR. 9038 provides the
means for accomplishing these objectives it
does not in any way lessen the control over
public expenditures which is exercised by the
Congress itself and by its agent, the General
Accounting Office."
During the debate on R.R 9038, the fol-
lowing statement was made by Congressman
HOLIFTELD, a member of the committee:
"The bill incorporates all of the recom-
mendations of the Hoover Commission re-
port on budgeting and accounting with a
single exception, that for the appointment
of an Accountant General in the executive
brandh with authority over the prescribing
of accounting systems and the supervising
of accounting operations. That recommen-
dation is contrary to a consistent congres-
sional policy that the Comptroller General,
as agent of the Congress, prescribe account-
17 H. Rept. No. 1884, 85th Cong., 2d seas.,
p. 231,
-ing requirements for the executive agencies
so that jappropriate audits may be made of
the agencies and that Congress may exer-
cise control over appropriations and ex-
penditures.
"We know because that has been at-
temlited before. In 1932 and 1937, I believe,
such a proposal was attempted legislatively
and was turned down by Congress. We
members of the committee knew that the
Congress would not relinquish this arm of
the Congress, and the Comptroller General
is the arm of the Congress, the watchdog
of the Congress on expenditures in the ex-
ecutive departments." 18
The importance of this legislative history
must not be overlooked or minimized by
anyone because section 313 of the Budget
and Accounting Act, 1921 has remained in-
tact and unchanged throughout 37 years.
Research fails to reveal any attempt by a
Member of Congress or an executive officer
of the Government to recomxnefid that sec-
tion 313 be amended or modified 'in any
way. It is also significant to note_ at this /
point that no exception has been it lade or
even claimed for Inspector General's reports.
Later in this memorandum of law we will
discuss the fact that there is an Attorney
General's opinion specifically interpreting
the Budget and Accounting Act, 1921 for the
then Secretary of War.
XI/. CONSTITUTIONAL' GRANTS OF POWERS,
DUTIES, AND RESPONSIBILITIES TO THE PRESI-
DENT
We have considered the constitutional re-
sponsibilities and duties of the Congress and
the law enacted in compliance thereof and
also the legislative history establishing the
intent of the Congress. Now we should con-
sider the constitutional responsibilities and
duties of the President which directly relate
to the withholding of access to an Air Force
Inspector General's report from the Comp-
troller General by the Secretary of the Air
Force. The following sections of the Con-
stitution are considered pertinent:
(h) "The executive power shall be vested
in a President of the United States of Amer-
ica." 10
(i) "lie may require the opinion, in writ-
ing, of the principal Officer in each of the
executive Departments, upon any subject
relating to the duties of their respective
offices,".2?
(j) "He 'shall from time to time give to
the Congress Information of the state of the
Union, and recommend to their considera-
tion such measures as he shall judge neces-
sary and expedient."11
(k) "He shall take care that the laws be
faithfully executed." 22
To attempt to define or enumerate all the
"executive power" vested in the President is
beyond the scope of this memorandum. We
are not concerned with such matters as
emergency powers, or where Congress has
taken no legislative action and a void exists
which the President may attempt to fill by
executive power, or where a leg,islative act
needs "filling in." Rather we are concerned
here with the Budget and Accounting Act in
which the Congress has established specific
rules by law for the guidance of the Pifesi-
dent and the Comptroller General, a statute
Which needs no "filling in." More specifi-
cally, we are concerned with the exercises of
"executive power" as it relates to section 313
of the Budget and Accounting Act, 1921. In
this context we should consider the consti-
19 Ibid. at p.231.
10 Constitution of the United States, art. II,
sec. 1.
20 Constitution of the United States, art. It,
sec. 2.
20 Constitution of the United States, art. II,
sec. 3,
2 Ibid.
neclassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17950 CONGRESSIONAL RECORD -- SENATE
. tutional grants set forth above in paragraphs
(h), (i), (j), and (k).
The Supreme Court in the Neagle Case in-
terpreted the "executive power" with respect
to the take-care clause in the following
language:
"The Constitution, section 3, article 2, de-
clares that the President `shall take care that
the laws be faithfully executed,' and he is
provided with the means of fulfilling this
obligation by his authority to commission
all the officers of the United States, * * *
The duties which are thus imposed upon
him he is further enabled to perform by the
recognition in the Constitution, and the
creation by acts of Congress, of executive
department, * * the heads of which are
familiarly called Cabinet ministers. These
aid him in the performance of the great
duties of his 'office, and represent him in a
thousand acts to which it can hardly be
supposed his personal attention is called,
and thus he is enabled to fulfill the duty of
_ his great department, expressed in the
phrase that 'he shall take care :that the laws
- be faithfully executed.' "0
The Neagle case was decided in 1889 and
was quoted extensively by the Supreme
Court in Myers v. United States, handed
down in 1926. In the Myers case, Mr. Chief
Justice Taft, speaking for the Court, con-
cerning the "executive power," stated:
"The vesting of the executive power in the
President was essentially a grant of the
power to execute the laws. But the Presi-
dent alone and unaided Could not execute
the law. He must execute them by the
assistance of subordinates. This view has
since been repeatedly affirmed by this
Court."
In this same ea:se Mr. Chief Justice Taft
stated that the "executive power" was not an
unlimited grant in these words:
"The executive power was given in gen-
eral terms, strengthened by specific terms
where emphasis was regarded as appropri-
ate, and was limited by direct expressions
where limitation was needed.",
? Thus, the sections and Clauses quoted
above in paragraphs (h), (i), (j), and (k)
?are specific terms where "emphasis was re-
' garded as appropriate." The sections and
clauses quoted in paragraphs (a) through
(g) in section V of this memorandum are
direct expressions "where limitation was
needed." Consequently, we find that the
"executive power" is limited by the Consti-
tution with respect to the President's own
duties as well as by those enumerated in
article I of the Constitution.
As recently as 1952 the Supreme Court in
the Youngstown Steel seizure case set forth
? in no uncertain terms the limit of executive
power and the effect of an "Executive order"
which is most appropriate for the matter
under consideration, namely, access to in-
formation, documents, and records. The
Court stated:
"And it is not claimed that express con-
stitutional language grants this power to the
President. The contention is that presi-
dential power should be implied from the
aggregate of his powers under the Constitu-
tion. Particular reliance is placed on pro-
visions in article II which say that 'The
executive power shall be vested in a Presi-
dent'; that 'he shall take care that the laws
be faithfully executed'; and that he 'shall
be Commander in Chief of the Army and
Navy of the United States.' * * * In the
framework of our Constitution, the Presi-
" In re Neagle, 135 U.S. 63.
24 Myers v. U.S., 272 U.S. 117; Wilcox v.
Jackson, 13 Peters' 498, 513; United States v.
Eliason, 16 Peters 291, 302; Williams v.
United States, 1 Howard 290, 297; Cunning-
ham v. Neagle, 135 U.S. 1, 63; Russell Co. V.
United States, 261 U.S. 514, 523.
" Ibid., at p. 118,
dent's power to see that the laws are faith-
fully executed refutes the idea that he is
to be a lawmaker. The Constitution limits
his functions in the lawmaking process to
the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And
the Constitution is neither silent nor equiv-
ocal about who shall make the laws which
the President is to execute. The first section
of the first article says that 'All legislative
powers herein granted shall be vested in a
Congress of the United States.' After grant-
ing many powers to the Congress, article I
goes on to provide that Congress may 'make
all laws which shall be necessary and proper
for carrying into execution the foregoing
powers, and-all other powers vested by this
Constitution in the Government of the
United States, or in any Department or offi-
cer thereof.' " 26
With respect to the "Executive order"
which the President had issued in the Steel
Seizure case and which is quite similar to
the position taken by the Department of
Defense when it issued DOD Directive
7650.1 dated July 9, 1958 (to be discussed
later in this memorandum), the Supreme
Court stated:
"The President's order does not direct that
a congressional policy be executed in a man-
ner prescribed by Congress?it directs that
a presidential policy be executed in a man-
ner prescribed by the President. The pre-
amble of the order itself, like that of-many
statutes, sets out reasons why the President
believes certain policies should be adopted,
proclaims these policies as rules of conduct
to be folldwed, and again, like a statute, au-
thorizes a Government official to promulgate
additional rules and regulations consistent
with the policy proclaimed an& needed_to
carry the policy into execution. The power
of Congress to adopt such public policies as
those proclaimed by the order is beyond
question.. ? * * The Constitution does not
subject this lawmaking power of Congress
to presidential or military supervision or
control." 28
The Court in this opinion emphasized the
fundamental basis of the "Constitution and
hence the very core of our system of gov-
ernment in these words:
"The founders of this Nation entrusted
the lawmaking power to Congress alone in
both good and bad times.. It would do no
good to recall the historical events, that
fears of power and the hopes for freedom
that lay behind their choice." 28
Mr. Justice Douglas' in his concurring op-
inion in the Youngstown case relative to the
sections and clauses of the Constitution
quoted above in paragraphs (h), (j), and
(k) of this memorandum made the follow-
ing relevant statement:
"Article II whi'ch vests the 'executive
power' in the President defines. that power
with particularity. Article II, section 2
makes the Chief Executive the Commander
In Chief of the Army and Navy. But our
history and tradition rebel at the thought
that the grant of military power carries with
it authoriy over civilian affairs. Artiole II,
section 3 provides that the President shall
'from time to time give to the Congress in-
formation of the state of the Union, and
recommend to their consideration such
measures as he shall judge necessary and
expedient.' The power to recommend legis-
lation, granted to the President, serves only
to emphasize that it is his function to rec-
ommend and that it is the function of the
Congress to legislate. Article II, section 3
also provides that the President 'shall take
care that the laws be faithfully executed.'
2? Youngstown Sheet & Tube Co., et al. v.
Sawyer, 343 U.S. 587, 588.
27 Ibid. at p. 588.
2, Ibid. at p. 589.
,Seeember 14,
But, as Mr. Justice Black and Mr. Justice
Frankfurter point out, the power to execute
the laws starts and ends with the laws Con-
gress has enacted." "
The statements of Mr. Justice Jackson, a
former Attorney General, in his concurring
opinion in the Youngstown case have par-
ticular significance with respect to the re-
fusal of the Secretary of the Air Force- to
give the Comptroller General access to the
Inspector General's report. After referring
to himself as one "who has served as legal
adviser to a President in time of transition
and public anxiety." 0 he stated:
. "When the President takes measures in-
compatible with the expressed or implied
will of Congress, his power is at its lowest
ebb, for then he can rely only upon his own
constitutional powers minus any constitu-
tional powers of Congress over the matter.
Courts can sustain exclusive presidential
control in such a case only by disabling the
Congress from acting upon the subject.
(Footnote omitted.) Presidential claim to
a power at once so conclusive and preclusive
must be scrutinized with caution, for what
is at stake is the equilibrium established by
our constitutional system." '1
Thus we find the Supreme Court inter-
preting the "executive power" grant in the
Constitution and stating unequivocally that
the President does not have an unlimited
discretionary power. The President is
bound to faithfully execute the law as en-
acted by the Congress under its constitu-
tional authority.
XIII. EXECUTIVE PRIVILEGE PLEADED
In this particular case the Secretary of
the Air _ Force is refusing the Comptroller
General access to a document or report not
on the basis of any statutory law or judicial
precedent. In fact the decision of the Sec-
retary is bordering closely, on action con-
trary to law. The Secretary bases his ac-
tion on a nebulous claim of so-called ex-
ecutive privilege. This claim is allegedly-
"derived from the constitutional power of
the President, which we are claiming now.
We are claiming it by and through the au-
thority of the President." 08 This language
implies that the Secretary of the Air Force
is acting in this matter as an agent of the
President; the language does not convey the
understanding that the decision to refuse
access to the report was done at the specific
direction of the President or that the matter
was even submitted to the President for his
consideration. Therefore, we must assume
that this decision to refuse the Comptroller
General access to the report was made by
the Secretary in his capacity as an officer
of the Government charged with the duty
"to take Care that the .Laws be faithfully
?executed." The validity and weight which
should be accorded "the myth of executive
privilege", has been amply described by
Mr. Justice Jackson, in the Youngstown case,
in his statement:
"The Solicitor General lastly grounds sup-
port of the seizure upon nebulous, inherent
powers never expressly granted but said to
have accrued to the office from the customs
and claims of preceding administrations.
The plea is for a resulting power to deal with
a crisis or an emergency according to the
necessities of the case, the unarticulated
sumption being that necessity knows no
law.
"Loose and irresponsible use of adjectives
colors all nonlegal and much legal discus-
sion of Presidential powers. 'Inherent' pow-
ers, 'implied' powers, 'incidental' powers,
2, Ibid. at pp. 632, 633.
0 Ibid. at p. 634.
'Ibid. at pp. 637, 638.
212 Hearing record (p.8691).
" CONGRESSIONAL RECORD, 85th Cong. ?cl
sees., vol. 104, No. 145, p. A7448.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 - CONGRESSIONAL RECORD ? SENATE
`plenary' powers, 'war' powers, and 'emerg-
ency' powers are used, often interchangeably
and without fized or-ascertainable meanings.
"The vagueness and generality of the
clauses that set forth Presidential powers
afford a plausible basis for pressures within
_ and without an administration for Presi-
dential action beyond that supported by
those whose responsibility it is to defend
his actions in court. The claim of inherent
and unrestricted Presidential powers has
long been a persuasive dialectical weapon in
political controversy. While it is not sur-
prising that connsel should grasp support
from such unadjudicated claims of power,
a judge cannot accept self-serving press
statements of the attorney for one of the
interested parties as authority in answering
a constitutional question, even if the ad-
vocate was himself. But prudence has coun-
seled that actual reliance on such nebulous
claims stop short of provoking a judicial
test." 84 .
xxv. 34 OPINIONS ATTORNEY GENERAL 446
(1925) V. DOD DIRECTIVE 7650.1
Bearing in mind the above-quoted words
of Mr. Justice Jackson, we should now con-
sider the evidence and circumstances which
resulted in an opinion of the Attorney Gen-
eral specifically interpreting section 313 of
the Budget and Accounting Act of 1921. Al-
though research fails to reveal any judicial
decision concerning this act, we have avail-
able a 1925 Attorney General's opinion. This
opinion is a construction of the statutory law
and is most important because in the exact
words of the distinguished General Counsels
of the Department of Defense, including the
Air Force, an Attorney General's opinion "is
controlling within the executive branch."
These words are:
"The Attorney General is the legal adviser
to the President under title 5, United States
Code, section 306, and on the basis of selec-
tive requests as distinguished from day-to-
day operating advice, he is the adviser to the
heads of departments under title 5, United
States Code, section 304. On matters of the
President's powers is opinion is controlling
Within the executive branch." 33
We should now consider whether an opin-
ion of the Attorney General is in fact "con-
trolling within the executive branch." In a
letter dated January 2, 1925, from the Secre-
tary of War to the Attorney General the Sec-
retary aZked:.
"Since the statutes governing the purchase
of supplies and engagement of services under
the War Department repose judgment. and
discretion in the contracting officers in pro-
miring supplies to the extent that they 'shall
he purchased where the same can be pur-
thased the cheapest, quality and cost of
transportation and the interests of the Gov-
ernment considered' (act of June 30, 1902, 32
Stat. 514), and, as to Quartermaster supplies,
that 'the award in every case shall be made
to the lowest responsible bidder for the best
:nd most suitable article' (act of July 5, 1884,
:3 Stat. 109) , it seems to this Department
,hat the accounting officers may not assume
o exercise in any degree a supervision over
he exercise of such judgment and discretion
appears to be contemplated by the Comp-
roller General's decisions. There appears to
a no more justification for the review of
uch matters in the General Accounting Of-'
.ce than there would be for a like review or
upervision of other matters purely of ad-
ministration such as the prescribing of speci-
ications or the receipt of supplies and their
tpplication to Government uses. Will you,
therefore, oblige me with your opinion as to
thether, according to law, I am bound to
irnish to the General Accounting Office the
nformation relative to the awarding of con-
13 U.S., at pp. 646, 647.
iearings, pt. 7, Department of Defense,
:ec., p. 1981.
No. 163-15
tracts by officers under this Department, as
indicated in that part of the Comptroller
General's decision of March 8, 1924." "
The Secretary enclosed with his letter an
opinion of the Judge Advocate General,
which conclues: 1
"This office is clearly of the opinion that
the General Accounting Office has no au-
thority to review the decisions of the con-
tracting officers under the War Department
made in the exercise of their judgment and
discretion in connection with making of
awards for contracts, and that consequently
the Comptroller General had no power to
require the furnishing of data necessary for
such review. In order, however, that the
controversy may be authoritatively disposed
of, it is recommended that this question be
submitted to the Attorney General for his
opinion ."57
On March 21, 1925, the Attorney General
Specifically laid down the rule of law, for
the guidance of the heads of departments,
relative to section 3-13 of the Budget and
Accounting Act (31 U.S.C. 54) in these co-
gent words:
"You request an opinion 'as to whether,
according to law,' you are bound to furnish
this information.
"It will be observed that the Comptroller
General states that this requirment 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 deter-
mination. 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 Comptrol-
ler General, or any of his assistants or em-
ployees when duly authorized by him, shall,
ifor the purpose of securing such informa-
tion, have access to and the right to examine
any books, documents, papers, or records of
any such department or establishment.'
"Respectfully,
"JOHN G. SARGENT." "
It has been contended that this Attorney
General's opinion was a very limited deci-
sion as indicated by the following colloquy:
"Mr. MITCHELL. On the question Mr. FAS-
CELL just asked you?there is a law involved.
The Comptroller General has a statutory re-
sponsibility under that law. We had testi-
many that this law had been interpreted by
the Attorney General who stated:
"'You requested an opinion as to whether,
according to law, you are bound to furnish
this information. 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.'
"And then the opinion goes on to quote
the access section 313, of the Budget and
Accounting Act. In view of the lack of any
other ruling, by a court or otherwise, is that
not a compelling interpretation of the
Budget and Accounting Act?
"Secretary DOUGLAS. I am sorry. I do not
hear the whole question and Mr. Golden said
he would like to answer it.
?..
?
- GOLDEN. May I?
"Mr. MITCHELL. Yes.
"Mr. GOLDEN. You are talking about an
opinion of Attorney General in 1925?
"Mr. MITCHELL. Yes.
17951
"Mr. GOLDEN. The Attorney General was
there asked a very limited question which
involved the situation where a low bidder
had been rejected. The Comptroller General
? wanted to know the reason for the rejection
of the low bidder and the award to the sec-
ond low bidder. The Comptroller General
did make the statement you said. However,
, there was no assertion of any executive priv-
ilege in this case. It was a limited situation
Involving the property of award of a con-
tract. We routinely give this kind of infor-
mation to the General Accounting Office
every day." ,9
We submit that even a casual reading of
the Secretary of War's letter, the attached
Judge Advocate General's opinion and the
resulting Attorney General's opinion clearly
refutes the contention that the decision was
in any way limited. The question arises here
as to whether the Department of Defense and
the Secretary of the Air Force are relying
solely on the Attorney General's opinion
on its face for their interpretation of the
decision. If the letter of the Secretary of
War and the attached Judge Advocate Gen-
eral's opinion were not considered, then the
construction, of the Attorney General's opin-
ion is unfortunate and inexcusable.
We should now consider if the Department
of Defense adequately considered this At-
torney General's opinion before DOD Direc-
tive 7650.1 was issued on July 9, 1958. On
June 16, 1958, the Committee on Government
Operations considered and approved House
Report No. 1884 relative to information prac-
tices in the Department of Defense. In-
cluded in this report is a staff memorandum
entitled: "Statutory Authority of the Gen-
eral Accounting Office in Relation to Infor-
mation from Executive Departments and
Agencies" (pp. 228-234). On July 9, 1958,
the very day the directive was issued the
Hebert subcommittee of the House Armed
Services Committee specifically questioned
Mr. Robert Dechert, General Counsel of the
Department of Defense relative to this 1925
Attorney General's opinion and the following
colloquy ensued: 88
"Mr. HEBERT. Was that opinion taken?
rather, that opinion of the then Attorney
General taken into consideration, Mr. Dech-
ert, when you were figuring out a way how
you were going to supplement the law, or im-
plement the law, or circumvent the law? We
will use all the words to be sure we cover
everything.
"Mr. DECHERT. Yes, sir. The situation
which is presented in that opinion is one
in which we follow exactly the lines there
laid down. That opinion arose from a ques-
tion of whether the proper person had re-,
ceived a contract.
"But the problems inherent in this new
directive, and particularly amendment to the
other directive on the question of security
information (to which Mr. Courtney was di-
recting my attention), are vastly beyond
that limited situation.
"Mr. COURTNEY. But, under the directive
7650.1, which was signed today, dealing with
unclassified information, you would have
the right, whether it be intended to be exer-
cised or not?you would have the right to
withhold the very information which Attor-
ney General Sargent said the Comptroller
General had the full responsibility for de-
termining?
"Mr. DECHERT. Yes, sir."
It is evident that the Department was
aware of the Attorney General's decision as
written, but what about- the Secretary of
War's letter and attachment thereto?
The Secretary of Defense by his action in
issuing DOD Directive 7650.1 severely im-
peded i,nd prevented the Comptroller General
from carrying out his statutory duties, as
" See exhibit IV-E, p. 3791.
87 Ibid. at p. 3796. " Hearing record, pp. 3690-3691.
83 34 Op. Atty. Gen. 446, exhibit IV-E, p. Hearings, Special Subcommittee No. 6 of
3796. the Committee on Armed Services, p. 194.
?
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17952 CONGRESSIONAL RECORD ? SENATE
required by law, and the Comptroller General
so notified the Secretary on June 26, 1958,
prior to the issuance of the directive." Since
an Attorney General's opinion is "controlling
within the executive branch" the least that
one could expect before such a directive is
issued would be for the Secretary to seek the
advice of the Attorney General. The issue of
the right of an independent officer of the
Government to "have access 'Co and the right
to examine any books, documents, papers, or
records" as provided by law, was not an
emergency situation, and if any doubt ex-
isted concerning the 1925 opinion, clarifica-
tion should have been sought from the At-
torney General. No evidence has been made
available that such advice was sought or ob-
tained.
On March 10, 1958, and before this directive
was issued, Mr. Robert Dechert, General
Counsel of the Department of Defense, testi-
fied before the Hebert subcommittee con-
cerning the General Accounting Office as fol-
lows: 42
"Mr. COURTNEY. Let me ask you specif-
ically: We are interested for the recoird here,
as to the interpretation of the Department,
specifically, of the statute relating to the
General Accounting Office.
"Its authority is initially from the Budget-
ing and Accounting Act of 1921, and I refer
specifically to section 53, which is a mandate
to the Comptroller General, and says:
"'To _nvestigate at the seat of'government
or elsewhere, all matters relating to the re-
ceipt, disbursement, and application of pub-
lic funds.'
"Now do I take it within the interpreta-
tion which you have given that the matter
of relevancy in relation to such an inquiry
would be determined, in your opinion, within
the Department or would the question Ofrel-
evancy never arise?
. "Mr. DECHERT. The question of relevancy,
I hope, would never arise. If it did arise,
it would be a matter of joint determination.
"Mr. COURTNEY. Is the matter of relevancy
in your opinion; and as you conduct your
office now, a matter to be determined within
the Department of Defense?
"Mr. DECHERT. I think this issue hasn't
arisen, Mr. Courtney, and therefore I think
I cannot answer it.
"Mr. HEBERT. May I suggest you be respon-
sive to the question?
"Mr. DECHERT. I say, I think this hasn't
arisen and therefore I can't answer from the
point of view of precedent.
"Mr. HRBERT. We have asked you for an op-
inion. Now what is your opinion?
"Mr. DECHERT. I want to be sure I get it
correctly.
"As I understand it, the question is, Sup-
pose that an issue arose between the Gen-
eral Accounting Office and the Department of
Defense as to whether a particular paper
was or was not relevant?
"I think if the Department of Defense,
atter a joint consultation, felt that its view
was correct, the only 'thing it could do would
be to refer it to the President."
In view of this testimony and the fact
that the Comptroller General had requested
the Inspector General's report on June 13,
1958, we can only conclude that DOD Di-
rective 7650.1 was ill-advisedly issued. In
this context we should consider and ponder
the words of Mr. JUstice Jackson.
"But I have no illusion that any decision
4loy this Court can keep power in the hands
of Congress if it is not wise and timely in
meeting its problems. * * * If not good law,
there was wordly wisdom in the maxim at-
tributed to Napoleon that 'The tools belong
to the man who can use them.' We may say
"Hearing record, exhibit VI-A through J,
p. 3799 through p. 3827, specifically p. 3826.
42 Hearings, Special Subcommittee No. 6 of
the Committee on Armed Services, p. 19.
that power to ?legislate for emergencies be-
longs in the hands of Congress, but only
Congress itself can prevent power from slip-
ping through its fingers.
"The essence of our free Government is
"leave to live by no man's leave, underneath
the law'---to be governed by those imper-
sonal forces which we call law." 42
The Congress did not let the legislative
power slip through its fingers in this case,
because it had enacted clear and precise
rules for the preparation and submission of
.the national budget and at the same time
created an independent officer of the Gov-
ernment, the Comptroller General, as an
agent of the Congress to "have access to and
the right to examine any books, documents,
papers, or records of any such department
or establishment. In no sense of the word
was there an emergency connected with the
issuance of the directive unless it be a self-
serving one. It is interesting to note that
the official request of the Comptroller Gen-
eral for access to the Inspector General's
report titled "Survey of Management of the
Ballistic Missile Program" was made to the
Secretary of the Air Force on June 13, 1958.
The DOD Directive 7650.1 restricting access to
Inspector General's reports was issued on
July 9, 1958." The official refusal of access,
relying on this directive, was made by the
Secretary of the Air Force in a letter to the
Comptroller General dated July 30, 1958."
XV. DOD DIRECTIVE 7650.1 BASED SOLELY ON
EXECUTIVE PRIVILEGE
There is no doubt that the DOD Directive ?
7650.1 was based on executive privilege. The
directive itself does not cite any statutory
authority. In fact, the directive itself makes
not the slightest claim to so-called constitu-
tional, Presidential, or Secretary of Defense
powers, implied, inherent or whatever word
might best fit a self-serving document which
by its very issuance over the signature of the
Secretary of Defense should be binding on
officers and employees of the Defense Estab-
lishment.
During the course of the subcommittee's
hearings with the Secretary of the Air Force
on this subject matter, the chairman finally
pinpointed the alleged authority as being
executive privilege in the following colloquy:
"Secretary DOUGLAS. May I just say one
word one that. I think the regulation which
says that the reports will not be released
except with my approval rests solely for its
validity on executive privilege.
"Mr. Moss, Would you quote for me the
pertinent section of the Constitution?
"Mr. Golden?
"Mr. GOLDEN. We are relying primarily?
and I think it would be almost impertinent
for me as General Counsel, not to so rely?
upon the opinions of the Attorney General in
this matter.
"We rely upon the well-known opinion of
the Attorney General-40th Opinions of the
Attorney Genei'al, page 45. We also rely on
the May 17, 1954, letter, which had enclosed
with it, as you know, a memorandum to the
President from the Attorney General.
"Now, both of these are based upon the
constitutional power of the President.
"The Attorney General has ruled that this
privilege exists. I certainly, as General
Counsel of the Air Force, am bound by his
Interpretation of the law and his ruling on
the law. I am also bound by the President's
acceptance of that interpretation.
"Mr. Moss. Can you quote the pertinent
section of the Constitution?
"Mr. GOLDEN. I can quote the pertinent
section of the Constitution that the Attorney
General relies upon.
"Mr. Moss. Would you do so, please?
" 343 U.S. at p. 654.
" Hearing record, exhibit VI-A, p. 3799.
Hearing record, p. 3572.
,eptember 14
"Mr. Gor..nEN. Those sections of the Con-
stitution are that an executive power is
vested in the President and that the Presi-
dent shall take care that the laws are faith-
fully executed.
"Mr. Moss. We are talking now about a
law that has been written, and it says that
the Comptroller General shall have access
to all records.
"Mr. GOLDEN. You are now asking about
the rationale of the Attorney General's de-
cision and how he concludes from those pro-
visions what the law is?
"Mr. Moss. No. You are now testifying
and giving the Secretary's views as counsel
to the Secretary of the Air Force.
"Mr. GOLDEN. Yes, sir.
"Mr. Moss. I don't think he has sought an
Attorney General's opinion in that instance.
"Mr. GOLDEN. No.
"Mr. Moss. I would be interested in what
you are relying upon, particularly what con-
stitutional provision. -
"Mr. GOLDEN. The Attorney General's opin-
ions that deal with questions of legal prin-
ciples do not have to be reiterated in every
case that arises.
"Mr. Moss. Well?
"Mr. GOLDEN. I might add that when the
President accepted the Attorney General':
opinion on May 17, 1954, and recognized
the confidential nature of communication:
among the employees of the executivE
branch, it seems to me to fit. this case like
a glove.
"Mr. Moss. This is not a communication
This is an official report reflecting an official
judgment.
"Secretary DOUGLAS. Mr. Chairman; if yor
are requesting the authority for the DefensE
Department regulation, there is every reason
to take that up with the Secretary of De-
fense and with the General'Counsel of thE
Defense Department.
"I have no difficulty myself in reading thE
regulation issued by the Secretary of DefensE
and -saying. that I am given the authority
In operating the Air Force under his direc-
tion and control, to withhold Inspector Gen-
eral's reports. The regulation does not ever
state it on the basis that I can withhold;
the regulation is on the basis that they shal
not be given unless I approve their release
"Mr. Moss. I am quite conscious of that
Mr. Secretary.
"Secretary DOUGLAS. Right.
"Mr. Moss. And I might also say that I an
in sharp disagreement with the basis for th(
authority. I am mindful dl the statement
of the courts in the Youngstown Sheet a
Tube v. Sawyer:
"'In the framework of our Constitutim
the President's power to see that the law:
are faithfully executed refutes the idea tha
he is to be a- lawmaker. The founders o
this Nation entrusted the lawmaking powe:
to the Congress alone in both good and bar
times.'
"We are talking now of a law which say.
that this information shall be available, an.
here we have departments laying down th
rules and saying what you can have.
"How broad is the authority to withhold
notwithstanding a clear statutory expressio
by Congress?
"Secretary DOUGLAS. I would not like to g
into the problem of personal appraisal r
the scope of presidential discretion.
"I might express the view that I wou,
think it complete. But I don't have to d
that, because I have a very clear authorit
given to me with respect to this kind of
report.
"I will try to exercise it as I am, as rea
sonably as possible.""
It is appropriate at this time to recall +
mind the words of Mr. Justice Story in tl.
Orono case.
" Hearing record, pp. 3691-3693.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5 ,
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 -
CONGRESSIONAL RECORD ? SENATE
"For the executive department of the Gov-
ernment, this court enter-tains the most en-
tire respect; and amidst the multiplicity of
cares in that department, it may, without
any violation of decorum, be presumed, that
sometimes there may be an inaccurate con-
struction of law."
XVI. JUDICIAL DECISIONS AND OTHER COMMENTS
ON THE MYTHICAL DOCTRINE OF EXECUTIVyw
PRIVILEGE
We have already noted the statements of
Mr. Justice Jackson in the Youngstown case
which are pertinent to the claim of exec-
utive privilege in political controversy. The
Justice also stated that such claims are
unadjudicated. He also cautioned that ac-
tual reliance on such nebulous claims stops
3hort of provoking a judicial test. The
Justice is factually accurate when he states
that such claims have never been adjudi-
cated on the Federal level probably, because
of the exercise of good judgment by the par-
ties concerned and the fact that a specific
statutory law has rarely, if ever, been in-
volved as it is in this Particular case.
The Justice was probably unaware of a
1951 decision of the Supreme Judicial Court
of Massachusetts. This case arose out of an
,,ttempt by an executive official to withhold a
report from the Senate of Massachusetts on
;he basis that "the legislature may not at-
tempt to interfere with action taken by the
executive department, which includes the
department of labor and industries and the
Massachusetts Development and Industrial
Commission set up therein." " This claimed
privilege of the executive to a power to with-
hold documents from the legislature (or in
he case we are dealing with, an independent
)fficer, as an agent of the Congress) on the
ground of official privilege was squarely pre-
ented to a court. The court expressly re-
tnidiated the gratuitous assumption of such
power in the executive to frustrate the
.3enate's access to a report in these words:
"None of the reasons given by Del Monte
(chairman, Massachusetts Development and
ndustrial Commission) for not producing
the report was valid. The attempt of the
lenate.to secure such information as might
le contained in the report was not an inter-
erence with the executive department of the
government. It was a permissible exercise
t an attribute pertaining to legislative
ower. If the legislative department were to
s shut off in the manner proposed from
,ccess to the papers and records of executive
nd administrative departments, boards, and
?=missions, it could not properly perforni
Gs legislative functions."
No contention has been made that the
longress when it enacted section 313 of the
'udget and Accounting Act was not exercis-,
a permissible attribute pertaining to leg-
slative power.
There exists a fallacious theory running
=pant throughout the executive depart-
.ents today that availability or access to
overnment information, papers, documents.
'id reports is an interference with the exec-
tive duty to take care that the laws be
Lithfully executed. This is probably due
? the legally unsupportable?and as Mr.
1stice Jackson said, unadjudicated?claims
executive privilege set forth by President
.senhower in his letter to the Secretary of
efense on May 17, 1954, and the attached
smorandum by Attorney General Brownell,
the time of the Army-McCarthy hear-
rigs. In fact, the Secretary of the Air Force
nil his counsel have specifically relied on
his very questionable document as author-
-37 to withhold the Inspector General's re-
ort from the Comptroller General. The
act statement is:
'47 The Orono, 18 Fed. Cas. No. 10,585 (Cir.
.t. D. Mass. 1812)..
48 Opinion of the Justices, 328 Mass. 656.
" ibid., at p. 661.
"We also rely on the May 17, 1954, letter,
which had enclosed with it, as you know, a
memorandum to the President from the At-
torney General. '
"Now, both of these are based upon the
Constitutional power of the President. ?
"The Attorney General has ruled that this
privilege exists. I certainly, as General
Counsel of the Air Force, am bound by his
Interpretation of the law and his ruling on
the law. I am also bound by the President's
acceptance of that interpretation." 88
It is to be noted that the instance which
caused the issuance of the May 17, 1954,
letter did not concern an interpretation of
any statutory law. Furthermore, the occa-
sion pertained basically to conversations
among executive officials about which a Sen-
ate subcommittee was endeavoring to have
the General Counsel of the Army testify.
From a legal point of view it is most impor-
tant to note that the matter was submitted
to the President on a specific point, on a
specific occasion, with reference to a specific
subject matter and his direction was to a
specific person. What is more important is
the fact that the President himself has sub-
sequently clarified his letter in words which
are extremely significant and have particular
relevance to this case; namely, the Comp-
troller General's access to the Inspector Gen-
eral's report. The President said:
"If anybody in an official position of this
Government does anything which is an offi-
cial act, and sulimits it either in the form of
recommendation or anything else, that is
properly a matter for investigation if Con-
gress so chooses, provided the national secu-
rity is not involved." "
In this case national security is not in-
volved, by admission of the Secretary of the
Air Force.= What is involved is a final, offi-
cial act by the Inspector General in a re-
port strictly concerned with the expenditure
of public funds appropriated by the Con-
gress." '
In addition, Gerald D. Morgan, special
counsel to the President, stated in a letter:
"In so writing to Secretary Wilson, and in
further amplifying these principles, the
President was exercising a right, which is
his, and his alone, to determine what action
is necessary to maintain the proper sepa-
ration of powers between the executive and
legislative branches of the Government." 55
Without admitting that such alleged right
exists in the President, we must point out
that the question of access to this Inspec-
tor General's report was not, insofar as the
subcommittee has been able to ascertain,
submitted by the Secretary of Defense or
Secretary of the Air Force to the President
for decision. It is strongly doubted that the
President was made aware of the facts in-
volved in this case or the fact that access
to the report is specifically provided for by
section 313 of the Budget and Accounting
Act. It must also be recognized' that the
President was asked very general questions
at 'a press conference which alluded to this
subject matter. There is, however, no rec-
ord that this entire matter was presented
to him for his decision.
Since in this section of this memorandum
we are concerned with the question of ex-
ecutive privilege, it is deemed appropriate to
consider some remarks made on the subject
on the floor of' Congress. Congressman
GEORGE MEADER, a distinguished member of
"Hearing record, p. 3692.
"Hearings, House Government Informa-
tion Subcommittee, pt. '7: Department of
Defense, second section, p. 1988.
" See hearing record, p. 3641.
53 See hearing record, p. 3652.
"See hearing record,. pp. 3683-3684; also
exhibit I-C, p. 3711.
55 Hearings, House Government Informa-
tion Subcommittee, p. 47; Department of
Defense, 2 ed., p. 1989.
17953
the Committee on Government Operations,
who has represented the Republican minor-
ity at hearings of this subcommittee and
who, before his election to Congress, served
as chief counsel for the Senate War In-
vestigating Committee, has made some co-
gent remarks concerning executive privilege
which warrant our consideration. Congress-
man MEADER said:
"Mr. Speaker, last Thursday, the Attorney
General of the United States, the Honor- ?
able William P. Rogers, appeared before the
Senate Judiciary Subcommittee on Consti-
tutial Rights to present his views on the
power of Congress to obtain information
from the executive branch of the Govern-
ment. His statement asserted a privilege in
the executive branch of the Government to
? withhold information from the Congress in
such broad terms that it should not go un-
answered.
"Increasingly, in recent years, as the ex-
ecutive bureaucracy has grown in power and
in numbers of officials, there has been a par-
allel tendency to assert limitations and re-
strictions upon the investigative power of
the Congress and its committees with respect
to documents, papers, and information in
the possession of the executive branch of the
Government.
"I fully realize that silence on the part
of Congress has no legal significance in for-
tifying these executive assertions. Yet such
statements, often enough repeatetl, create a
public impression of congressional acquies-
cence.
? ?
"The net effect of the Attorney General's
statement is that the executive branch of
the Government will give to the Congress
or, its committees such information as the
executive branch chooses to give, and no
more.
"I wonder if the American people and their
elected representatives in Congress appre-
ciate the significance of this latest pro-
nouncement of the executive branch of the
Government. If this is sound constitutional
doctrine, then it is permissible, without
amending the. Constitution, for the huge
executive bureauracy we have built up over
the years to become the master, not the
servant of the people. It places within the
sole and unfettered discretion of an organi-
zation of well over 2 million persons in the
executive branch of the Government the
power either wholly to deny Congress access
to facts about the public business, or to
make known only oh such terms, at such
times, and under such conditions as the Ex-
ecutive sees fit, those portions of the total
picture which the Executive wants the public
or the Congress to know. The latter course
makes possible a rigged, distorted, slante,d
factual foundation for the formulation of
public opinion, and thus grants the Executive
greater power over policymaking than is
healthy under a system of self-government
by the people.
? ? ? ? ?
"Mr. Speaker, it is difficult to prove that a
nonexistent thing does not exist. That is
the dilemma with the so-called Executive
privilege. The burden of proof should be
upon those who assert that there is Executive
privilege which, of course, is nowhere Men-
tioned in the Constitution or in any court
decision in any controversy concerning the
investigative power of the Congress.
? ? ? ?
"When, therefore, there is an attempt to
destroy, impair, or weaken the investigative
power of the Congress, the capacity to legis-
late intelligently is undermined. Afserting
an Executive privilege to deny to Congress
facts and information which Congress in its
legislative ?judgment believes it needs, is to
attick the legislative power itself.
"It is amazing to me that a nonexistent,
Imaginary, so-called Executive privilege, no-
where recognized in the Constitution, in
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17954 CONGRESSIONAL RECORD = SENATE
statutes or in court decisions, can seriously
be advanced to destroy the expressly vested
legislative power, as well as the investigative
power which inheres in it, so clearly estab-
lished in the Constitution and in an un-
broken line of court decisions throughout
the entire history of our Government.
?
"The doctrine of separation of powers can
have no relationship to the problem at hand
unless it is assumed that the power of Con-
gress to obtain information is an invasion of
the powers and prerogatives of the executive
branch of the Government. Congressional
access to information within the possession
of the executive branch would not seem, in
and of itself, to interfere in any way with
the orderly discharge of the responsibilities
and duties of officials of the executive branch.
The mere possession of information is not
tantamount to making administrative C.eci-
sions, directing and supervising officials in
the executive branch, employing_ or discharg-
ing subordinates, or performing any of the
functions commonly associated with execu--
tive or administrative authority. It is diffi-
cult to see how mere knowledge of facts
within the possession of the exec-tive
branch?not associated with any further ac-
tion whatever on the part of Congress?
could constitute legislative invasion of ex-
ecutive power.
* * *
"As to the latter, it is clear that what tho
Congress created by statute, it may destroy
or modify. Frequently, in statutes creating
agencies, a provision is included that re-
ports be made to the Congress from time to
time. The validity of such provisions has
never been challenged, to my Imowledge.. If
the Congress may create an agency in such
form as it desires, it obviously can provide
as a feature of the agency it creates that the
files, records, and papers in its possession
should be available to the Congress and its
committees upon such terms as the Congress
may specify. The Congress can repeal or
amend any statutes creating agencies and
specifically provide for congressional access
to information in the agency's possession. I
see no reason why, if it should be necessary,
Congress could not pass a general statute ap-
plicable to all agencies created by statute
specifying that, and the terms upon which,
the Congress and its committees should have
access to information in the possession of
such agencies. This power resides in the
Congress wholly aside from its power,
through subpena or otherwise, to make in-
quiries.
?
"The Attorney General, whose statement
am now analyzing, succeeded me as chief
counsel for the Senate War Investigating
Committee, and then stayed on with the
Senate after the expiration of that special
committee and served as chief counsel for
the Investigations Subcommittee of the Com-
mittee on Expenditures in the Executive De-
partments.
"We all know of the important role a com-
mittee counsel plays in the preparation or
committee reports.
"While Mr. Rogers, the present Attorney
General, was chief counsel for the Investi-
gations Subcommittee, a report was filed
September 4; 1948, on an investigation of
Federal employees loyalty program. On page
19 of that report?Senate Report No. 1775,
80th Congress, 2d session?is the following
interesting passage:
"'Nondisclosure policy of the executive
'branch on loyalty information,
" 'Under our constitutional form of gov-
ernment, Congress has the duty to enact laws
for the public welfare. To perform this duty
intelligently, it must have the complete facts
upon which to base its judgment. Congress
is entitled to learn by direct investigation
whether present laws are satisfactory or, if
not, then in.what respects they fail. Under
our system of checks and balances Congress
should not be placed in the position of enact-
ing legislation merely at the request of the
executive branch of the Government and
solely for reasons advanced by it. Congress
is entitled to know the facts giving rise to
the requests and to satisfy itself by firsthand
information that the reasons furnished are
valid. Any other course blinds the legisla-
tive branch and permits action only when
the President provides a "seeing-eye dog" in
the form of a request for legislation desired
by the Executive. Good legislation and
ignorance of the facts are incompatible.
President Truman, in discussing the impor-
tance of congressional investigations on the
floor of the Senate when he retired as chair-
man of the War Investigating Committee,
forcefully emphasized this basic fact by say-
ing: "An informed Congress is A wise Con-
gress; an uninformed Congress surely will
forefeit a large portion of the responsibility
and confidence of the people." ' "
To paraphrase the 'above question, Con-
gress, with respect to the National Budget
System, has through the Budget and Ac-
counting Act and the Comptroller General
provided for a "seeing-eye dog" and has by
this law attempted "to satisfy itself by first-
hand information" that the requests for, con-
trol of, and expenditure of public funds is
valid.
XVII. RULES APPLICABLE TO DEPARTMENT OF
DEFENSE_
The Congress, when it enacted the Budget
and Accounting Act, 1921, did not except the
Army and? the Navy from the provisions of
the laws. Neither did it except the Depart-
ment of Defense and the Department of the
Air Force after they were created. In fact,
as the law states, it is applicable to "all de-
partments and establishments" of the Gov-
ernment. In this context we should con-
sider the quote set forth in paragraph (e) ,
section V of this memorandum and with par-
ticular reference to the applicability of sec-
tion 313 of the Budget and Accounting Act.
Mr. Justice Jackson, in the Youngstown
case, summed up the rule of law which is
applicable in this manner:
"There are indications that the Constitu-
tion did not contemplate that the title Com-
mander in Chief of the Army and Navy will
constitute him also Commander in Chief of
the country, its industries, and its inhabi-
tants. He has no monopoly of 'war powers,'
whatever they are. While Congress cannot
deprive the President of the command of the
Army and Navy, only Congress can provide
him an Army or Navy to command. It is also
empowered to make rules for the 'Govern-
ment and regulation of land and naval
forces,' by which it may to some unknown
extent impinge upon even command func-
tions." ?
The law and the legislative history of the
Budget and Accounting Act, and amend-
ments, sharply indicate that Congress meant
the Comptroller General to have access to
any books, documents, papers, or records
necessary for him to carry out his statutory
duties and responsibilities. Since the De-
partment of Defense Establishment was not
excepted from the provisions of the law, the
Congress was exercising its constitutional
responsibility to make rules for the "Govern-
ment and Regulation of land and naval
Forces." This law is one of the rules it has
established.
XVIII. VOLUME 40 OPINIONS OF THE ATTORNEY
GENERAL, PAGE 45 (APRIL 30, 1941)
This opinion was also referred to as au-
thority to support the theory of Executive
" CONGRESSIONAL nECORD, MAR. 10, 1958, pp.
3280-3284.
67343 U.S., at pp. 643, 644.
,g,?ptember 14'
privileges.? The opinion was concerned with
the availability of investigative reports of the
Federal Bureau of Investigation. The Secre-
tary of the Air Force has not contended that
the Inspector General's report in any way
concerns the FBI files nor that this report is
of the investigatory type, such as personnel
security or criminal investigations.? In fact,
the report is entitled "Survey of Management
of the Ballistic Missile Program." With re-
spect to the relevancy of the court case:
relied upon by the Attorney General in this
opinion we are at a loss to comprehend their
significance because none of them pertainr
to information or records as far as avail
ability to Congress, or its agent, is concerned
The General Accounting Office has furnishes
the subcommittee with an analysis of eacl
of the cases cited and relied upon by th
Attorney General in his opinion.?
Although this particular opinion has Iv
relevancy with respect to the right of acces
to the Inspector General's report, as estab
lished by statutory law, we should 'conside-
it because the opinion has not withstood th
supreme test of judicial review. In th'
opinion one of the broadest claims for M
ecutive privilege was made in these terms:
"This discretion -in the executive brancl
has been upheld and respected by the jua
ciary. The courts have repeatedly held thc
they will not and cannot require the Execu
tive ? to produce such papers when, in th
opinion of the Executive, their production
contrary to the public interest. The cour'
have also held that the question whether th
production of the papers would be again:
the public interest is one for the Executi?
and not for the courts to determine." 61
The author of this statement in 1941, who
he was Attorney General, was none otho
than Mr. Justice Jackson, who, in tl-
Youngstown case in 1952, practically obli
erated and repudiated his own words.? ( A-
ready quoted in this memorandum.) Fu
thermore, Mr. Justice Jackson in 1953 in th
leading case of U.S. v. Reynolds 63 concurro
with the statement of Circuit Judge Mar
who spoke for a unanimous court in the:
words:
"Moreover we regard the recognition
such a sweeping privilege against any d'
closure of the internal operations of the e.
ecutive departments of the Government ,
contrary to a sound public policy. T'
present cases themselves indicate the bread'
of the claim of immunity from disclosu
which one Government department head h.
already made. It is but a small step to t
sert a privilege against any ' disclosure
records merely because they might prc
embarrassing to Government officers. L
deed it requires no great flight of imagin
tion to realize that if the Government's co
tentions in these cases were affirmed, t.
privilege against disclosure might gradua'
be enlarged by Executive determinations t.
til, as is the case in some nations today,
embraced the whole range of governmen
activities.
"We need to recall in this connection
words of Edward Livingston: 'No. nati
ever yet found any inconvenience from
close an inspection into the conduct of
officers, but many have been brought,
ruin, and reduced to slavery, by suffer
gradual imposition and'Abuses which W.
imperceptible, only because the means'
publicity had not been secured.' And it v
Patrick Henry who said that 'to cover w.
theveil of secrecy the common routine
68 Hearing record, pp. 3962-3694, also a
hibit p. 3741.
Hearing record, exhibit p. 3740.
**Hearing record, exhibit IV-B, pp. 3'
through 3761.
40 Ops. Atty. Gen. 49.
" 343 U.S. at pp. 646-647.
345 U.S. I.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959
Ike
business, is an obomination in the eyes of
every intelligent man and every friend of
his country.' "?
In addition, Dean Wigmore flatly rejected
the above-quoted statement in these words:
"But the solemn invocation in the prece-
dents above chronicled, of a supposedly in-
herent secrecy in all official acts and records,
has commonly been only a canting appeal
to fiction. It seems to lend itself natural:y
to mere sham and evasion. * * * But the
vast extension, in modern times, of adminis-
trative laws regulating the affairs of the in-
dividual citizen, is presenting a large scope
for this claim of privilege. The possibilities
of such abuse are plainly latent in thiLsup-
posed privilge. * * * The menace whicM this
supposed privilege implies to individual
liberty and private right will justify us in
repudiating it before it is solidly entrenched
in precedent." 65
The best summation which can be made
with respect to this Attorney General's opin-
ion is to refer to the famous case of 'Jencks
V. U.S. decided in 1957.07 The issue in this
ase dealt squarely with the problem of ac-
cess to files of the Federal Bureau of In-
vestigation. There is no need in this memo-
:andum to set forth any facts or belabor
the point we are considering, namely, the
so-called unlimited discretion in executive
officials, based on a claim of Executive privi-
lege, to withhold access to a Govermrient
:eport. This case was decided on June 3,
1957, and within a matter, of weeks the At-
torney' General, Mr. Brownell, appealed to
Congress for a statutory law to protect the
'MI files. Congress acted promptly and en-
'acted Public Law 85-269.0 This act pro-
Sided for an orderly procedure for the pro-
duction of statements and reports of wit-
nesses. The law did not state that the files
I the FBI or any other agency could be kept
'rom disclosure by virtue of a claim ,of "ex-
:cutive privilege."
To paraphrase the words of Mr. Justice
3tory, we think the Secretary of the Air
'orce is inaccurate in his citation of this
Attorney General's opinion.
*Ix. CITATION OF MANUAL OF COURTS-MARTIAL
1951
The Air Force cited the Manual of Courts-
lartial in support of their refusal to make
.vailable the Inspector General's report.
The irrelevance of this citation was estab-
:shed by this colloquy:
"Mr. MITCHELL. Mr. Golden, I have a couple
I detailed questions about your citation of
he Courts-Martial Manual.
"Paragraph 151(b) (3), Manual of Courts-
-artial, 1951, has been cited as an author-
for refusing information to the General
ocounting Office (exhibit UI-A, reply to
uestion 10). The paragraph states that the
aspectors General are confidential agents of
'deir departments and that reports of their
avestigations are privileged. The Manual
? the Courts-Martial prescribes procedures
? military trials, including investigations.
.ow does the prohibition against disclosing
ivestigative reports apply to tlie ballistics
,issile survey, which is a review of manage-
'ildt operations and does not deal with crim-
al or personnel operations?
"Mr. GOLDEN. In the first place you note
ar primary reliance is on the Attorney Gen-
al and we cite 40 Opinions of the Attorney
enert No. 8.
"We cited just before the paragraph to
hich you referred the President's letter to
de Secretary of Defense, May 17, 1954, which
nclosed another Attorney General's memo-
dclum of law. All we are saying is that the
CONGRESSIONAL RECORD ? SENATE
a Reynolds v. U.S., 192 F. 2d 995.
N VIII Wigmore on Evidence, 3d edition,
.cs. 3267, 3279. Also earlier sections.
4?353 U.S. 657.
6771 Stat. 595.
r
treatment of this report in the Manual of
Courts-Martial is in consonance?we were
referring to Inspector General reports gen-
erally?it is in consonance with the Attor-
ney General's opinions cited above.
"We had just referred to the Attorney
General's opinion, the President's letter, and
the reference to the memorandum of law of
the Attorney General's support for our ac-
tion in our discretion. And then I cited it.
"We wanted to show the special nature of
the Inspector General report. This was a
reference to one particular type of Inspector
General's report and we so indicated when
we referred to the Manual for Courts-Martial.
"Mr. MITCHELL. But it does not involve this
particular case whatsoever? ,
"Mr. GOLDEN. No; it does not. We wanted
to show how the Inspector General's reports
were treated by the Manual for Courts-
Martial approved by the President.
"Mr. MITCHELL. The-Manual for Courts-
Martial was laid out by Congress in an act;
was it not?
"Mr. GOLDEN. I believe so.
"Mr. MITCHELL. It is in 64th 'U.S. Statutes
at Large,- page 107. Executive Order 10214
was issued, under another law of Congress.
Is the GAO under the jurisdiction of the
Department of Defense with respect to
courts-martial?
"Mr. GOLDEN. I almost do not have answer
that, Mr. Mitchell.. I think your statement
answers the question itself.
"Mr. MrrcHELL. Well; what is the answer?
"Mr. GOLDEN. Certainly not.
"Mr. MITCHELL. I think that disposes of
the answer to the chairman with respect to
this.
"Mr. GOLDEN. Yes." 6R
X. MAY 17, 1954, LETTER AND ATTACHED
MEMORANDUM BY THE ATTORNEY GENERAL 6'
The completely irrelevant, inadequate,
legally unsupportable and ,unadjudicated
position of the Department of Defense and
the Secretary of the Air Force in reliance on
the May 11, 1954, letter and the attached
memorandum from the Attorney General
has already been made manifest in this
memorandum of law. However, for record
purposes we should consider some pertinent
facts.
1. This document is not an opinion of the
Attorney General in the legally considered
sense of an Attorney General's opinion. It
is simply and solely what it purports to be:
"a memorandum from the Attorney General
for the President." 74
2. The President did not even make refer-
ence to it in his letter of May 17, 1954, to the
Secretary of Defense, nor did he dignify it
by directing the attention of the Secretary
of Defense to it. Actually, we can only pre-
sume it may have been attached to the
letter.
3. The memorandum fails to cite any court
decisions or even refer in any way to any
legally supportable claims of privilege.
4. The memorandum is nothing more than
recitations of instances where previous
Presidents have withheld information or
records from Congress.
5. The memorandum is absolutely incom-
plete because it fails to set forth the in-
stances wherein Congress has demanded in-
formation and records from past Presidehts
and received them.
6. The reference in the memorandum to
so-called historical precedents as a legal basis
for any Presidential powers or claims of
executive privilege implied from the Consti-
tution, has been thoroughly repudiated by
a Hearing record, p. 3205.
Hearing record, House Government In-
formation Subcommittee, Pt. 7: Department
of Defense, 2d section, p. 1981.
7? Hearings, House Government Informa-
tion Subcommittee, p. 47, Department of De-
fense, 2d ed., p. 1981.
? 17955
the Supreme Court in the Youngstown
Steel Seizure case.
'7. The memorandum fails to cite a single
incident wherein a statutory law requiring
access to reports or records was involved
when any President refused information to
Congress. In fact the memorandum is silent
with respect to any statutory law.
8. The memorandum "was lifted almost
word for word from a law review article
which had appeared some years previous-
719. The document on which the memo-
randum relies for alleged authority was
transmitted by the then Deputy Attorney
General, Mr. Rogers, to the Special Subcom-
mittee on Government Information volun-
tarily " on June 18, 1956, and is entitled,
"Is a Congressional Committee Entitled To
Demand and Receive Information and Papers
From the President and the Heads of De-
partments Which They Deem Confidential,
in the Public Interest?", This same docu-
ment speaks for itself in these words: "None
of the foregoing cases involved the refusal
by a head of a department to obey a call for
papers or information. There has been no
Supreme Court decision dealing squarely
with that question." 74
"MARBURY V. MADISON"'
This famous case of Marbury v. Madison
seems to be the cornerstone for all the fal-
lacious claims for "executive privilege" ad-
vanced by the individuals who seem to think
that such a doctrine exists. This case in-
volved an original mandamus proceeding in
the Supreme Court by Marbury to require
Mr. Madison, then Secretary of State, to
deliver a commission signed by President
Adams which showed his appointment, un-
der an act of Congress dated February 27,
1801, as justice of the peace for the District
of Columl-ia, "to continue in office for 5
years." The act contained no provision con-
cerning removal. The Court considered
Marbury's right to demand the commission
and affirmed it. In this case Mr. Chief Jus-
tice Marshall said:
"It is, therefore, decidedly the opinion of
the Court, that when a commission has been
signed by the President, the appointment is
made; and that the commission is complete
when the seal of the United States has been
affixed to it by the Secretary of State."
The Court then went on to determine that
mandamus was P. proper remedy but that
such action does not lie within the province
of the Supreme Court.
The Court did lay down one rule of law
which is applicable to the matter we are
considering. Research fails to reveal where
the following principle has ever been over-
ruled by a court and we consider it to be
decisive for the instant issue:
"But where he is directed by law to do
a certain act affecting the absolute rights
of individuals, in the performance of which
he is not placed under the particular direc-
tion of the Presitent, and the periormance
of which the President cannot lawfully for-
bid, and therefore is never presumed to have
forbidden; "."
One of the basic rulings of Marbury v.
Madison is that "The President canmit au-
thorize a Secretary of State to omit the per-
formance of duties which are enjoined by
law." "
71 See Bishop. 66 Yale Law Journal 477. 4'78
(1957) and Wolkinson, 10 Federal Bar Jour-
nal 103, 223, 319.
"Hearing record, House Government In-
formation Subcommittee, Pt. 12: Panel Dis-
cussion With Government Lawyers, p. 2694.
73 Ibid., at p. 2892.
" Ibid. at p. 2938.
" 1 Cranch 1.
" Ibid., at p. 171.
17 Ibid., at p. 137.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17956 CONGRESSIONAL
The Budget and Accounting Act has im-
posed upon the Secretary of Defense and the
Secretary of the Air Force the duty by an
act of Congress to make available and give
access to the Comptroller General the In-
spector General's report. The statutory law
and its legislative history is such that the
President cannot lawfully forbid access to
the report.
For the purpose of emphasis we quote Mr.
Chief Justice Marshall who laid down the
underlying philosophy of our form of gov-
ernment. He stated:
"The Government of the United States
has been emphatically termed a government
of laws; and not of men. It will certainly
cease to deserve this high appellation, if the
laws furnish no remedy for the violation of
a vested legal right."
In our opinion the statutory law estab-
lished In the Comptroller General a vested
legal right to the Inspector General's re-
port.
mar. u.s. v. RITMELY 78
The case of U.S. v. Rumely was raised in
the course of the hearings with the Secretary
of the Air Force. A mere recitation of the
facts involved will show that it has no rele-
vancy concerning the Comptroller General's
access to the Inspector General's report. The
facts as stated by the Court are:
"The respondent Rumely was secretary
of an organization known as the Committee
for Constitutional Government (a nongov-
ernmental organization) which, among
other things, engaged in the sale of books
of a particular political tendentiousness. He
refused to disclose to the House Select Com-
mittee on Lobbying Activities the names of
those who made bulk purchases of these
books for further distribution."
Rumely was a private citizen, not an
executive officer of the Government, as con-
trasted with the matter we are considering.
XXIII. CONCLUSIONS OF LAW
The foregoing material of this memoran-
dum of law has demonstrated clearly the
validity of these conclusions:
1. The Special Subcommittee on Govern-
ment Information of the Committee on Gov-
ernment Operations is clearly within its leg-
islative jurisdiction to investigate and
consider this particular withholding from
the Comptroller General of access to an Air
Force Inspector General's final, official report.
2. The Congress when it enacted the
Budget and Accounting Act of 1921, and in
particular section 313, was exercising its con-
stitutionally granted legislative powers set
forth in article I as quoted.
3. The Congress when it enacted the
Budget and Accounting Act of 1921 laid
down specific directions for the President
and all executive officers within the Govern-
ment.
4. The Congress when it enacted the
Budget and Accounting Act of 1921 created
as its agent an independent officer of the
Government, the Comptroller General, es-
tablished his specific stattitory responsibili-
ties, and provided the statutory means for
him to carry out his duties.
5. There exists no legal authority for, the
head of a department, created by Congress,
to ignore, act contrary to, or to refuse to act
in accordance with a law enacted by the
Congress and signed by the President.
6. The President cannot legally direct the
head of a department to ignore, act con-
trary to, or permit him to refuse to act in
accordance with a law.
7. There exists no legal authority for the
Secretary of Defense or the Secretary of the
Air Force to deny "access to, and the right to
examine, any books, documents, papers, or
records" which the Comptroller General de-
" 345 U.S. 41.
" Ibid., at p. 42.
RECORD? SENATE Ssptember 1.
too?"' nr
stricting access of the Comptroller Gener:
to Inspector General's reports, documents,
papers.
23. The issuance of DOD Directive 7650
was ill advised an( based on an incorre(
construction of the ruling in 34 Opinions
the Attorney General 446 (1925) .
(24) . The promulgation of DOD Directis
7650.1 is not based on statutory authority (
on powers delegated to the Secretary of D(
fense and contravenes a validly enactE
statutory law; viz, the Budget and Account
ing Act of 1921.
25. The Comptroller General has detei
mined that in order to perform his stati
tory duties, as required by law, he should hal
aced to the Inspector General's report an
he alone can make such a determination.
26. The May 17, 1954, letter and the mem(
randum reciting historical precedents hi
no validity in law and is an incongruous a
tempt to establish an alleged claim of "execi
tive privilege."
JOHN J. MITCHELL,
Chief Counsel, Special Subcommittee on
Government,
termines may be necessary for the perform-
ance of his statutory duties.
8. The President, the Secretary of Defense,
and the Secretary of the Air Force have the
constitutional duty to "take care that the
laws be faithfully executed."
9. The Secretary of Defense and the Sec-
retary of the Air Force act as agents of the
President and as such can exercise no power
in their own right except from the President.
10. There exists no legal authority for the
President, the Secretary of Defense and the
Secretary of the Air Force to decide what
"books, documents, papers, or records" are
necessary to the proper performance of the
duties and functions of an independent offi-
cer of the Government (the Comptroller
General) who is vested with the authority to
make such determinations by statute.
11. There exists no legal authority for the
Secretary of Defense and the Secretary of the
Air Force to prevent an independent review
of the performance of the Inspector General's
organization.
12. The constitutional duties and func-
tions of the Congress and the President are
such that the President may not, contrary
to the expressed direction of a validly en-
acted law, interfere with congressional direc-
tion concerning the availability of informa-
tion to an,, independent officer of the Govern-
ment.
13. The power of the head of a department
is restricted by the Constitution to the ob-
servance of such laws as Congress validly
enacts.
14. The Budget and accounting Act of
1921 requires that information requested by
the Comptroller General from any depart-
ment or establishment be furnished (with
one exception as noted) .
15. The Attorney General in 1925 specifi-
cally interpreted the Budget and Accounting'
Act of 1921 as requiring the departments to
furnish information which the Comptroller
General determined was re,quired. This de-
termination is binding on all executive
officers of the Government.
16. The Congress by the Budget and Ac-
counting Act of 1921 has determined that it
is in the public interest to make "any books,
documents, papers, or records" available to
the Comptroller General which he deter-
mines necessary for the proper performance
of his statutory duties.
17. The Congress has determined that dis-
closure to the Comptroller General of a re-
port is the public interest and no head of a
department has any discretion to declare as
a basis for withholding that such disclosure
would not be in the public interest.
18. In the only court case of record we
have been able to find, where the issue in-
?volved access by the legislature to an execu-
tive report, it was decided in favor of the
legislature. It was determined that securing
of information in a report was not an inter-
ference with the executive department of
the Government (Opinions of the Justices,
328 Mass. 661 (1951) ).
19. The mythical doctrine of "executive
privilege" itself is not supported by law.
The court decisions discussed in this mem-
orandum reject the existence of such a claim.
In addition Dean Wigmore flatly repudiates
such a claim as "executive privilege." The
court cases cited by the proponents of this
"executive privilege" do not support their
contention. ,
20. The citation of the Attorney General
Opinion (40 Ops. Atty. Gen. 45 (1941) ) is
irrelevant and has not withstood the test
of judicial review.
21. The citation of the Courts-Martial
Manual is irrelevant as applying to the
Comptroller General, and is so admitted by
the Air Force.
22. The President and the Secretary of
Defense have no constitutional or legal au-
thority to issue DOD Directive 7650.1 re-
EXHIBIT IV-E
Contracts?Lemmond?pz/red?J.A.G. 1(
JANUARY 2, 1925.
The Honorable the ATTORNEY GENERAL.
MY DEAR MR. ATTORNEY GENERAL: Undl
a decision of the Comptroller General (
March 8, 1924 (3 Comp. Gen. 604), subs(
quently adhered to in a decision dated IsTi
vember 6, 1924, a copy of which is amor
the enclosures herewith, this Department
called upon by the General Accounting Off
to furnish information relative to contract
such information to show to the satisfa
tion of the accounting officers either th:
the lowest bid was accepted, or if otherwis
a detailed statement of the reasons for al
cepting other than the lowest bid. Und,
section 3713, Revised Statutes, a copy of a
contracts involving Government expend
tures is required to be deposited in the Ge]
eral Accounting Office and it is in connect(
with such copy of contracts that the Corm
troller General asserts that it is compete:
for his office to prescribe the papers whi(
shall constitute or accompany the contra
so deposited, including a statement in detE
of the reasons for not accepting the lowe
bid in cases where other than the lowest b
was not accepted. since the statutes go
erning the purchase of supplies and engag
ment of services under the War Depai
ment repose judgment and discretion in t
contracting officers in procuring supplies
the extent that they "shall be purchas
where the same can be purchased the chea
est, quality and cost of transportation a:
the interests of the Government considers
(act of June 30, 1902, 32 Stat. 514), and;
to Quartermaster supplies, that "the awe
in every case shall be made to the low(
reaponsible bidder for the best and mE
suitable article" (act of July 5, 1884, 23 SL
109), it seems to this Department that t
accounting officers may not assume to ex(
else in any degree a supervision over t
exercise of such judgment and discretion
appears to be contemplated by the Con-
troller General's decisions. There appear::
be no more justification for the review
such matters the General Accounti
Office than there would be for a like revi
or supervision of other matters purely of E
ministration such as the prescribing
specifications or the receipt of supplies a
their application to Government uses. NA
you, therefore, oblige me with your ?pin]
as to whether, according to law, I am boy
to furnish to the General Accounting 0,
the information relative to the awarding
contracts by officers under this Departme
as indicated in that part of the Comptrol
General's decision of March 8, 1924, read'
as follows:
Declassified and Approved For Release @ 50-Yr 2014/03/12: CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 Alb CONGRESSIONAL RECORD ? SENATE -17957
"The acceptance by an administrative of-
ficer of other Shan the lowest bid would
ordinarily not be questioned if the reasons
assigned for that action appeared satisfac-
tory, but the action in that respect 'by
administrative officers is not conclusive on
the accounting office. It appears, there-
fore, that a satisfactory audit of expendi-
tures, whether pursuant to formal or infor-
mal contracts, requires at least an affirma-
tive showing that the lowest bid was ac-
cepted, or, if otherwise, a detailed statement
of the reasons for accepting other than the
lowest bid.
"The information thus considered neces-
sary may be provided either by furnishing
the accepted proposal and all rejected pro-
posals or copies thereof, or by furnishing
the accepted proposal and an abstract of re-
jected proposals, or by a certificate on the
voucher by one having knowledge of the
facts that the accepted bid, attached or
otherwise deposited, was the lowest bid, if
that be a fact, or if the fact be otherwise, a
detailed statement as to the reasons for ac-
cepting other than the lowest bid. Such
requirement appears to be reasonable and
Is deemed necessary to a proper audit of the
expenditures; therefore, the items here in
question will be continued in suspension for
a reasonable period of time awaiting receipt
of the necessary information."
For your information, attention is in-
vited to the enclosed opinion of the Judge
Advocate General on the subject.
? Sincerely yours,
Secretary of 'War.
2ND IND.?WAR DEPARTMENT, J. A. G. 0., 29
DEC. 1924, TO THE ADJUTANT GENERAL
(Contracts?Lemmond?pz/red?J. A. G.
163)
1. Reference 1st Indorsement, 160 (11-26--
24) (Misc.) AGO, December 4, 1924, to this
office on QM 161 A-G (General) Office of
the Quartermaster General, November 26,
1924, subject: "Decisions of Comptroller
General?data in connection with con-
tracts: Lowest bidder, and lowest responsi-
ble bidder."
2. You have referred to me for remark
.The -Quartermaster General's commUnica-
tion and inclosures relative to a recent de-
cision of the Comptroller General to the ef-
fect that as to all contracts involving expend-
itures, executed on and after November
15, 1924, the General Accounting Office will
require an affirmative showing that the
lowest bid was accepted, or if otherwise, a
detailed statement of the reasons for ac-
cepting other than the lowest bid.
3. On March 8, 1924, the Comptroller Gen-
eral rendered a decision (3 Comp. Gen. 604)
in connection with the audit of certain
open-market purchases by the Public
Printer in which he held (quoting the syl-
labus);
"A satisfactory audit of expenditures pur-
suant to formal or informal contracts, re-
quires an affirmative showing that the low-
est bid was accepted, or, if otherwise, a de-
tailed statement of the reasons for accepting
other than the lowest bid."
This decision appears to be based upon
the following provision of section 3743, Re-
vised Statutes, as amended (made applicable
to the General Accounting Office by section
304 of the Budget and Accounting Act, 42
Stat. 24) :
.
"SEC. 3743. All contracts to be made, by
virtue of any law, and requiring the advance
of money, or in any manner connected with
the settlement of public accounts, shall be
deposited promptly hi the offices of the audi-
tors of the Treasury, according to the nature
of the contracts."
The Comptroller General's reasoning and
. conclusions were thus stated:
"The requirement of section 3743, Revised
Statutes, as amended, that all contracts shall
promptly be deposited in this office is obvi-
ously for the purposes of a satisfactory audit
of the expenditures pursuant thereto, and in
connection therewith it is competent for
this office to prescribe the papers which shall
constitute or accompany the contracts to be
so deposited.
"The acceptance by an administrative offi-
cer of, other than the lowest bid would ordi-
narily not be questioned if the reasons as-
signed for that action appeared satisfac-
tory, but the action in that respect by ad-
ministrative officers is not conclusive on the
accounting office. It appears, therefore, that
a satisfactory audit of expenditures, whether
pursuant to formal or informal contracts,
requires at least an affirmative showing that
the lowest bid was accepted, or, if otherwise,
a detailed statement of the reasons for ac-
cepting other than the lowest bid.
"The information thus considered neces-
sary may be provided either by furnishing
the accepted proposal and all rejected pro-
posals or copies thereof, or by furnishing the
accepted proposal and an abstract of rejected
proposals, or by a certificate on the voucher
by one having knowledge of the facts that
the accepted bid, attached or otherwise de-
posited, was the lowest bid, if that be a fact,
or if the fact be otherwise, S. detailed state-
ment as to the reasons for accepting other
than the lowest bid. Such requirement ap-
? pears to be reasonable and is deemed neces-
sary to a proper audit of the expenditures;
therefore, the items here in question will be
continued in suspension for a reasonable
period of time awaiting receipt of the neces-
sary information."
Pursuant to the said decision, the General
Accounting Office proceeded to call upon the
Quartermaster General of the Army, by nu-
merous letters, to supply information rela-
tive to the awarding of contracts to the "low-
est responsible bidder," each such letter con-
taining the following statement:
"The contract bears a certificate signed by
the contracting officer to the effect that the
award of the contract was made to the low-
est responsible bidder, but it is not shown
however that the lowest bid was actually ac-
cepted. An affirmative showing should be
made that the lowest bid was accepted, or, if
otherwise, a detailed statement of the rea-
sons for accepting other than the lowest bid
should be furnished. See 3 Comptroller
General 604 as to the information considered
neeessary to meet the above requirement.
"Prompt compliance with the requirement
is requested in order to avoid suspension
of payments in the disbursing officer's
account."
The Quartermaster General replied by let-
ter to the General Accounting Office dated
October 24, in which, after referring to the
laws and regulations under which the exist-
ing practice had become established of
showing only by certificate that award was
made to the lowest responsible bidder, he
said:
"It is generally admitted that the making
of a contract is purely an administrative
function, and that appropriate exercise of
administrative discretion is a matter not
open for review by the accounting officers.
The laws and regulations relative to the
business of the Quartermaster Corps pro-
vide, generally, that contracts shall be made
with the lowest responsible bidder for the
best and most suitable article. Determination
in this respect can only be regarded as an
administrative function. In conformity with
requirements an appropriate certificate by
the contracting officer is appended to the
number of the agreement to .be furnished
to the General Accounting Office. Distinc-
tion must be made between the terms 'low-
est responsible bidder,' as applied to the
Quartermaster Corps, and 'lowest bidder', as
? may be prescribed by law pertaining to some
other branch or branches of the Govern-
ment service. Therefore, it is regarded that
certificates furnished with the contracts, and
as has been followed in long established
practices, meet requirements and ought to
be sufficient for the General Accounting
Office.
* ?
"It is the policy of this office to cooperate
with the General Accounting Office, and in
view of the explanation set forth above re-
quest is made that such exceptions as you
have taken to the contracts in question, as
well as any similar ones noted before con-
sideration of this letter, be -withdrawn."
To the latter communication the Comp-
troller General replied, in a letter to the
Secretary of War, November 6, 1924, that the
provision of the act of July 5, 1884 (23
Stat. 109), requiring that awards for the
'purchase of Quartermaster supplies be made
to the "lowest responsible bidder" is but
declaratory of the general requirement ap-
plicable alike to all, though not expressly
required of all; and further?
"The fact that a showing as to the ac-
ceptance of the lowest bid, or a statement of
the reasons for accepting a higher bid, was
required only in specific cases is no reason
why the accounting officers could not have
made that, a general requirement as to all
purchases. I believe that the requirement
as announced in 3 Comp. Gen. 604, is a salu-
tory one, in. the interests of the United
States, reasonable, and with full warrant in
law; and must be adhered to.
"You are advised, however, in view of the
past practice, the time will be extended so
that the requirements generally will be in-
sisted upon only as to contracts executed on
and after November 15, 1924, unless a par-
ticular need therefor arises in specific cases."
4. In order to protect, for the time being,
contracting and disbursing officers the
Quartermaster General has issued instruc-
tions that the information thus required by
the Comptroller General be furnished; and
in submitting this matter to The Adjutant
General for examination and such further
action as may be deemed advisable, he states
that the requirements thus set up by the
Comptroller General are regarded by his
office as "an unwalranted encroachment
upon the administrative prerogative and
not essential to the audit of accounts," and
he suggests whether in case the Comptroller
General's ruling be acceded to there will not
follow efforts to assume jurisdiction over
other administrative features in contract
matters. In this connection he further
states:
"(e) It appears to be well settled that the
making of contracts is an administrative
function?one with which the accounting
officers have nothing to do; and that the
accounting officers are concerned only to the
extent of the legality of the contract for the
purpose of passing payments thereunder,
and that the agreement contains terms ade-
quately set forth so as to admit of proper
audit. With those points in view, and giving
consideration to the language of the law of
1884, it is regarded by this office that deter-
mination as to who is the lowest respon-
Sible bidder for the best and most suitable
article' is purely an administrative 'function,
and that certificate by the contracting officer
in that respect, and as to advertising for pro-
posals (in accordance with the blank there-
fore upon the approved contract form) is
all that should be required by the General
Accounting Office. Similar information
should be submitted in cases of informal
contracts awarded after competition."
5. The Comptroller General does not base
his decision upon any express authorization
in section 3748, Revised Statutes, or any
other statute. He states that the require-
ment of that section (R.S. 3743) is obviously
for the purpose of satisfactory audit, and
that in connection therewith it is com-
petent for his office to prescribe the papers
which shall constitute or accompany the
Declassified and Approved For Release @ 50-Yr 2014/03/12: CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17958 CONGRESSIONAL
contract. It may be granted that the Gen-
eral Accounting Office is entitled to have
furnished to it all information necessary
for a proper audit of accounts; but without
undertaking to say what would constitute
a proper audit of contract accounts, I think
the authorities are clear to the effect that
the accounting officers have not the duty
or the responsibility of reviewing, for pur-
poses of approval or disapproval, matters
of administration or the decision of ques-
tions requiring the exercise of judgment and
discretion. All purchases and contracts for
supplies or services for the military service
are required to be made by or under the
direction of the Secretary of Wfr (ES.
3714), and he has a responsibility to tee that
contracts are properly made and faithfully
executed (U.S. v. Adams, 7 Wall. 465, 477).
Pursuant to the act of April 10, 1878 (20
Stat. 36, as amended by the act of March 3,
1883, 22 Stat. 487) Article I, Army Regula-
.tions, 1913, embodies the rules prescribed
for the government of contracting officers.
The following paragraphs are pertinent for
consideration here:
"541. Proposals will be opened and read
aloud at the time and place appointed for
the opening (bidders having the right to be
present), and each proposal will then and
.there be numbered and entered on an ab-
stract, the articles being entered, after the
reading of all proposals, and with the least
practicable delay, in the order in which they
are to appear on the returns. Articles to be
procured by cOntract will be abstracted sep-
arately from these to be procured on written
'acceptance. U the number of proposals is
large, those relating to specific articles or
classes of articles may be entered on sepa-
rate abstracts. The number of each pro-
posal, with the quantities and prices of ar-
ticles offered and dates of delivery, will ap-
pear in the proper columns, and a copy of
the advertisement or notice under which
the proposals are received, with a copy of
the specifications, if any, will be attached
to the upper lefthand corner of the abstract.
When two or more sheets are used for the
abstract, they will be properly fastened to-
gether? eend paged on the upper righthand
corner.
? ?
"543. When proposals are received at a
post, unless by an officer authorized to make
the award, as in cases involving small ex-
penditures, they and the abstract will be
forwarded to department headquarters, with
the recommendations of the receiving officer
and the post commander as to the person
to whom the award should be made. When
a purchasing officer, acting under the direct
supervision of a chief of bureau, has invited
and received proposals, he will make the
award and execute the necessary papers,
unless otherwise directed by the chief of
bureau.
"544. When proposals for supplies for the
general service of a department are received
at its headquarters, the chief officer of that
branch of the staff to which they pertain
will submit them to the department com-
mander, and, under his supervision, will
make the award and execute the necessary
papers, unless under existing orders the ac-
tion of higher authority is necessary.
"545. Except in rare cases, when the
United States elects to exercise the right to
reject proposals, awards will be made to the
lowest responsible bidder, provided that his
bid is reasonable- and that it is in the in-
terest of the Government to accept it.
"546. Slight failures on the part' of a
bidder to comply strictly with the terms of
an advertisement should not necessarily
lead to the rejection of his bid, but the
Interests of the Government will be fully
considered in making the award.
"547. When no guaranty is required, bid-
ders must, if called upon by the awarding
RECORD ? SENATE
officer, furnish satisfactory evidence, before
the award is made, of their ability to carry
their proposals into effect. .
"548. The accepted quantity and price will
be noted on the abstract of proposals in the
column of 'Remarks,' opposite the name of
the bidder. If a bid is rejected and one at
a higher price accepted, the reason for the
rejection will be written in the column of
remarks. When contracts are made, the fact
will be stated in the abstract.
"549. Abstracts and duplicate numbers of
proposals will be forwarded to the proper
bureaus of the War Department when spe-
cially directed by the heads of such bureaus
or required by the regulations thereof.
"564. The number of the contract for the
Auditor for the War Department will be sent
to him by the head of the bureau to which
the contract pertains, and in case of a pur-
chase made by an officer of the Quartermas-
ter Corps after public notice of 7 days
or more, this number must be accompanied
by a copy of the advertisement, a certificate
of the contracting officer as to the time and
manner of its publication, and his certificate
that the award was made to the lowest re-
sponsible bidder foethe best and most suit-
able article."
The Act of June 30, 1902 (32 Stat. 514),
provides that, except in cases of emergency
or where it is impracticable to secure com-
petition, the purchase of all supplies for the
use of the Army shall only be made after ad-
vertisement, "and shall be purchased where
the same can be purchased the cheapest,
quality, and cost of transportation and the
interests of the Government considered."
An earlier statute (Act of Tune 5, 1884, 23
Stat. 109) requiring purchases by the Quar-
termaster and Commissary Departments to
be made only after public notice except in
case of emergency, provides that:
"The award in every case shall be made
to the lowest responsible bidder for the best
and most suitable article ? *
There are other statutes regulating pur-
chases, including section 3709, Revised Stat-
utes, but they are all to the same intent and
in furtherance of the same policy (28 Ops.
Atty. Gen. 384, 388). Under these statutes
the contracting officer has to consider sev-
eral factors other than the price bid, and
his decision, in good faith, involves the ex-
ercise of his judgment and discretion. These ,
are the decisions that the Comptroller Gen-
eral would have reviewed and approved or
disapproved in the General Accounting Of-
fice. That the accounting officers have no
authority to exercise any such supervision
over contracting officers' decisions of this
character is, I think, conclusively estab-
lished by numerous- decisions and opinions,
some of which will be here cited.
In United States v. Speed (8 Wallace '77),
the validity of a contract was attached on
the ground that the statute (now R.S.
3709) requiring advertisement for bids had
not been complied with. The Supreme
Court said:
"But that statute, while requiring such
advertisement as the general rule, invests
the officer charged with the duty of procuring
supplies or services with a discretion to dis-
pense with advertising, if the exigencies of
the public service require immediate delivery
or performance. It is too well settled to ad-
mit of dispute at this day, that where there
Is a discretion of this kind conferred on an
officer, or board of officers, and a contract
is made in which they have exercised that
discretion, the validity of the contract can-
not be made to depend on the degree of wis-
dom or skill which may have accompanied
its exercise."
The case of United States v. Jones (59
How. 93), involved the right of the account-
ing officers to review and disapprove the ac-
tion of the Secretary of Navy in exercising
Septerber 14
his discretion in providing for the medical
care and treatment of a naval officer in
France. In deciding that the accounting
officers had no such authority the Supreme
Court said, inter alia:
"The Secretary of the Navy represents th.
President, and exercises his power on the
subjects confided to his Department. He is
responsible to the people and the law for any
abuse of the powers contracted to him. His
date and decisions, on subjects submitted to
his jurisdiction and controlled by the con-
stitution and laws, do not require the ap-
proval of any officer of another department
to make them valid and conclusive. Thr
accounting officers of the Treasury have not
the burden of responsibility cast upon them
of revising the judgments, correcting the
supposed mistakes, or aniauling the orden
of the heads of departments."
To the same effect is United States v. John-
ston (124 U.S. 236, 252).
In United States v. Waters (133 U.S. 208.
215) , the Supreme Court in considering the
powers and duties of the accounting officers
said:
"The Comptroller of the Treasury Depart-
ment decides whether or not the items are
authorized by statutes, and are legally
chargeable. He has no power to review, re-
vise, or altek items expressly allowed by
statute, nor items of expenditures or allow-
ances made upon the judgment and discre-
tion of other officers charged with the duty of
expending the money and making the al-
lowances. His duty extends no further that
to say that the officers charged with that
duty have authorized the expenditures or
made the allowances."
In 1,853 Attorney General Cushing held (6
Ops. Atty. Gen. 226) :
"A head of a department advertising ac-
cording to law for proposals for stationery
is the competent and only judge of the mat.
ters of fact involved in the acceptance anti
rejections of any of the proposals. In a
matter which the law confides to the purt
discretion of the executive the decision kr
the President or proper head of -the depart-
ment of any question of, fact involved, is
conclusive, and is not subject to revision
by any other authority in the United States."
In 1894 the Attorney General, in an opin-
ion (21 Ops. Atty Gen. 57) rendered to the
Secretary of the Navy, in the matter of ar.
award for supplies, said:
"The lowest bidder who fills the other re-
quirements is entitled to an award of th
contract, although you are the person
charged with the duty of ascertaining the-
facts in this regard, and your decision i
not reviewable in any court."
The same principle has been applied by
the Comptroller of the Treasury in 3 Comp-
troller's Decisions 242, it was held that i
the absence of evidence to the contrary th.
accounting officers will, in the settlement o
salary accounts assume that the civil-service
law and rules have been complied with b;
the officer having the power of appointment
To the same effect is 4 Comp. Dec. 72. Thi
same authority held that the questio,
whether a contractor has properly compile<
with the terms of his contract in executin;
the work thereunder is one of fact upo
which the decision of the head of the de-
partment made in good faith is conclusive
(2 Comp. Dec.'242).
6. By section 3744, Revised Statutes, Con-
gress has made provision for safeguarding
the Government against fraud in connec-
tion with the making of Government con-
tracts by requiring information in regard
to such contracts to be filed in the Returns
Office, Department of the Interior, and by
section 3745, the contracting officer is re-
quired to make a sworn statement as to his
good faith in making the contract. Speak-
ing of this statute, Attorney General Wick-
ersham said (29 Ops. Atty. Gen. 297) :
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
' Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 CONGRESSIONAL RECOIZD -- SENATE 17959
4411b
"The purpose of the statute with reference
to making returns (act of June 2, 1862, 12
Stat. 411), was, as the title thereof stated,
'to prevent and punish fraud on the part of
officers entrusted with making of contracts
for the Government.' This object Congress
aimed to accomplish by requiring the data
with respect to the making of such- 'con-
racts, bids, offers, proposals, and advertise-
nent to be filed with the contract, and
naking the whole of it open to inspection.
"Rich an inspection would show whether the
provisions of law governing the making of
,sny such contract had been complied with."
If it had been the intention of Congress
hat similar information should be filed in
he General Accounting Office, it is reason-
able to suppose that legislation to that effect
would have been enacted.
7. This Office is clearly of the opinion that
Ale General Accounting Office has no
iuthority to review the decisions of the con-
:,Tacting officers under the War Department
nade in the exercise of their judgment and
liscretion in connection with making of
:wards for contracts, and that consequently
be Comptroller General has no power to
.equire the furnishing of data necessary for
inch review. In order, however, that the
sontroversy may )be authoritatively disposed.
if, it is recommended that this question be
submitted to the Attorney General for his
)pinion. A draft of a letter to the Attorney
aeneral, for the signature of the Secretary
d War, is enclosed.
3. A. Hum,
. Major General, The Judge Advocate
General.
[34 Op. Atty. Gen. 446]
? DEPARTMENT OF JUSTICE,
March 21, 1925.
?
:he SECRETARY OF WAR.
SIR: Your letter of January 2, 1925, states
hat under a decision of the Comptroller
'ieneral your Department is called upon by
tie General Accounting Office to furnish in-
ormation relative to contracts showing that
ne lowest bid was accepted or, if otherwise,
detailed statement of the reasons for ac-
septing other than the lowest bid.
The decision referred to is that of March
, 1924 (3,Dec. Comp. Gen. 604). In it ref-
xence is made to the statute providing that
11 contracts requiring the advance of
-noney or in any manner connected with the
-ettlement of public accounts shall be de-
.osited in the General Accounting Office
R.S. 3743, sec. 304, Budget and Accounting
set of June 10, 1921, 42 Stat. 24), and it was
(p. 605) : ?
"The requirement of section 3743, Revised
_itatutes, qs amended, that all contracts
ball promiitly be deposited in this office is
bviously for the purposes of a .satisfactory
adit of the expenditures thereto, and in
onnection therewith it is competent for this
face to prescribe the papers which shall
mstitute or accompany the contracts to be
I deposited.
"The acceptance by an administrative of-
ler of other than the lowest bid would
'clinarily not be questioned if the reasons
-signed for that action appear satisfactory,
ut the action in that respect by adminis-
-ative officers is not conclusive on the ac-
sounting office. It appears, therefore, that
a satisfactory audit of expenditures, whether
pursuant to formal or informal contracts,
requires at least' an affirmative showing that
the lowest bid was accepted or, if otherwise,
a detailed statement of the reasons for ac-
cepting other than the lowest bid."
You request an opinion "as to whether,
according to law," you are bound to furnish
this information.
- 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
No. 163-16
should have to make such an audit would
seem to be a matter solely for his determina-
tion. Moreover, section 313 of the Budget
and Accounting Act provides (p. 26) :
"All departments and establishments shall
furnish to the Comptroller General such in-
formation regarding the powers, duties,
activities, organization, financial transac-
tions, and methods of business of their re-
spective offices as he may from time to time
require of them; and the Comptroller Gen-
eral, or 'any of his assistants or employees,7
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.
"Respectfully,
"JOHN D. SARGENT."
MEMORANDUM OF LAW
CASES INVOLVING ATTEMPTS TO CONTRAVENE,
MODIFY, OR AMEND STATUTES BY EXECUTIVE
ACTION "
This memorandum of law discusses the
chief legal issue relative to the controversy
which has arisen concerning the right of
.access by the Comptroller General to an Air
Force Inspector General's report entitled
"Survey of Management of the Ballistic
Missile Program." The fundamental legal
questions involve whether the Secretary of
Defense may promulgate and publish a di-
rective which, by its terms, is binding on all
employees of the Departrnent 80 if the direc-
tive.?
(1) was issued without statutory author-
ity;
(2) before issuance, was objected to in
writing by an independent officer of the Gov-
ernment, the Comptroller General; and
(3) has the effect of contravening and
modifying a statute enacted by Congress,
thus preventing the Comptroller General
from fulfilling his statutory responsibility
and duties.
The Department of Defense and its com-
ponent agencies are of statutory origin and
in no way can the Department be considered
to be of constitutional origin. The Consti-
ttition states that Congress shall have the
power "To raise and support armies * * *
to provide and maintain a Navy; to make
rules for the government and regulation of
the land and naval forces." 81 Hence, the
Secretary of Defense's only powers flow from
statutes and delegations of authority con-
tained therein. The Congress has delegated
authority to the Secretary of Defense and
the Secretaries of the military services to
prescribe "rules and regulations." 82 Only
Congress has the authority to amend or
modify a statute and can delegate that au-
thority to the President or officers of the ex-
ecutive branch only by legislative action.
There have been numerous attempts on the
part of the President and officers of the ex-
ecutive branch to contravene, modify, and
amend duly enacted statutes by proclama-
tion, Executive order, or rules and regula-
tions?just as the Department of Defense in
its directive is attempting to contravene and
modify a statute. The following cases were
79 This memorandum supplements memo-
randums entitled "Right of the Comptroller
General to Access to a Report of the Inspec-
tor General of the Air Force Entitled 'Survey
of Management of the Ballistic Missiles Pro-
gram'" and "Right of Adcess by the Comp-
troller General (an Agent'of the Congress) to
an Air Force Inspector General's Report En-
titled 'Survey of Management of the Ballistic
Missile Program,'" hearings, pt. 16, exhibits
IV-A and IV-D, pp. 3753 and 3764.
80 Ibid.. at p. 3799.
81 Constitution of the United States, art. I,
sec. 8.
82 Hearings, pt. 11, pp. 2588-2589.
submitted by the Special Subcommittee on
Government Information to the General Ac-
counting Office and were summarized by
James Masterson, GAO attorney:
I. Cases involving attempts by executive of-
ficials with, statutory authority to promul-
gate rules and regulations for the conduct
of their offices to use such rules and regu-
lations to contravene, modify, or amend
statutes
Gilchrist et al. v. Collector of Charleston
(10 F. Cas. 355, No. 5420) : Case involved a
writ of mandamus against a customs inspec-
tor at the Charleston, S.C., port.
The ship Resource, arrived in Charleston
port at a time when a lengthy stay could re-
sult in the destruction of its bottom by
worms which infested that harbor during
the summer months. An embargo that
would detain the ship was in effect and an
-attempt was made to secure cargo which
would justify the ship sailing to a more
northern port .(Baltimore) where the worms
would not be a danger. A cargo of cotton
was obtained. The ship needed ballast to
enable Safe negotiation; so it was agreed that
it would take on 140 barrels of rice, freight
free, to enable it to make its northern voyage.
The customs inspector refused debarkation
papers on the suspicion that the rice trans-
port was an attempt to circumvent the law.
Mandamus was sought and granted. The act
under which detention was sought was to
prevent a sailing to one American port under
the subterfuge of sailing to another. Here
the inspector knew and believed that Balti-
more was the port of destination. The in-
struction of the Plesident which allowed de-
tention for some other purpose was of no
effect. The court said, "All instructions from
the Executive which are not supported by
law are illegal, and no inferior officer is
bound to obey them." The Treasury Depart-
ment instruction was to detain (1) if the
cargo of a ship was for a port where the
cargo was ,not needed for consumption and
(2) for a port that usually exports that arti-
cle. This instruction did not follow the law
and therefore lacked authority of-Jaw.
McElrath v. United States (102 U.S. 426) :
After allegedly going a.w.o.l. McElrath, a Ma-
rine Corps lieutenant, tendered his resigna-
tion. The Secretary of the Navy refused to
accept the resignation and McElrath was dis-
missed. The President nominated one Hay-
cock to vice McElrath. Haycock was ap-
pointed by and with the consent of the Sen- ?
ate. Thereafter, McElrath obtained a letter
from his commanding officer saying he was
not a.w.o.l. but was granted permission to
leave his ship. The Secretary of the Navy.,,,
revoked the dismissal and accepted the resig-
nation as of the date of McElrath's appeal.
Suit was for the pay for the intervening pe-
riod; i.e., from the dismissal to the accepted
resignation.
The court did not allow payment for the
intervening period. It was held that at the
date the Senate approved the Haycock ap-
pointment the allowed number of Marine
lieutenants was complete and that the at-
tempted subsequent restoration and accept-
ance of resignation of McElrath by the Secre-
tary of the Navy was of no effect.
Muir v. Louisville and Nashville R.R. Co.
(247 F. 888) : This was an action in tort
agianst the L; & N. by the administrators of
the estates of persons killed in a train acci-
dent. The railroads had been seized by the
United States, so one of the defenses was
that the United States must be a party to the
action and, as the United States had not
consented to suit, the action mind not lie.
The court in its opinion stated that while
Congress may authorize heads of executive
departments or other officials to make regula-
tions within certain limits?and when made
within those limits such regulations have
the force and effect of law?the delegation
of authority to make regulatory orders giveS
?
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17960 CONGRESSIONAL RECORD-.- SENATE
no power to add to, take from, or modify the
limitations prescribed by Congress. As the
act only authorized the President to take
possession of and assume control of the
transportation system through the Secretary
of War and made no provision for a Presi-
dential proclamation providing an elaborate
scheme of control, such proclamation had
no force as law.
Panama Refining Co. v. Ryan (293 U.S.
288): Suit was brought by the owners of oil
refining companies to restrain Federal officials
from enforcing a regulation prescribed by the
Secretary of the Interior under the National
Industrial Recovery Act.
The act established no guide for the Presi-
dent for his use in issuing his Executive or-
ders. The court said that this was an un-
authorized delegation (4 legislative power to
the President. Therefore, the Executive or-
der and regulations under it did not have
constitutional authority.
United States v. Ashley Bread Co. (59 F.
Supp. 671) : A statute provided that the
power of allocation shall be exercised "in
such manner, upon such conditions, and to
such extent as he [the President] shall deem
necessary or appropriate in the public inter-
est and to promote the national defense."
A regulation was issued pursuant to this
statute which provided that no bakery prod-
ucts could be "resumed" by a bakery. An
informaton was issued stating that the de-
fendant "did * * * willfully resume posses-
sion of * * * bread previously manuf so-
tured by the said defendant." '
The court held that this regulation was
beyond the authority of the War Food Ad-
ministrator ,to establish and therefore was
invalid.
United States ex rel. Hirshberg v. Cooke
(336 U.S. 210) A sailor was in a Japanese
prison camp and was detailed to work fellow
prisoners. He was discharged from the Navy
and then reenlisted. About a year after his
reenlistment he was charged in a court-
martia proceeding with the maltreatment of
two fellow prisoners.
The court held that when the enlistment
in which the alleged wrong was done ter-
minated all military control over his action
ended. The Navy could not reopen the case
in a subsequent enlistment, it being gen-
erally the law that a court-martial proceed-
ing will not lie against a person discharged
from the service. The Army and Navy regu-
lations on this matter differed, although their
statutes were substantially the same. The
court said that Congress had not intended
to allow the various military units to make
their own rules in regard to this matter.
..- The Congress must set the standards.
//. Cases involving attempts by the President
or other executive officers to contravene,
' modify, or amend statutes by proclama-
tion, executive order, directive, or rules and
regulations
Little et -al. v. Barreme (2 Cranch 169) :
Case involved an award of damages to the
owner of a Danish ship after it had been cap-
tured by two ships of the United States.
The capture was made because it was as-
sumed that the Danish vessel was proceeding
in a manner in conflict with the act of Feb-
ruary 9, 1799 (an act for the suspension of
all intercourse between France and the
United States.)
The ,ecnirt held that a commander of a
ship of wax of the United States in obeying
his instructions, from the President acts at
his own peril and if those instructions are
not strictly warranted by law, he is answer-
able in damages to any person injured by
their execution. The act did not authorize
the seiture upon the high seas of any vessel
from a French port; it provided for the
seizure of vessels of the United States
"* ? * bound or sailing to any port or place
within the French Republic, or her de-
pendencies." ? Therefore, the orders of the
?
President could not justify a seizure of a
ship coming from a French port upon sus-
picion of a violation of the "nonintercourse
legislation." '
Gelston et al. v. Hoyt (3 Wheat. 246) : Snit
of an alleged trespass for taking and carry-
ing away the ship American Eagle.
The defense to the action was that this
ship was attempted to be armed for em-
ployment in the service of a foreign state,
that it was being outfitted for the service of
-the Petion forces of St. Domingo against tae
Christophe forces of St. Domingo and that
the seizure was pursuant to Presidential
direction.
The act complained -of was an actual
seizure of the vesel. The court said that
the seventh section of the act of 1794 (ch.
50), was not intended to apply, except to
cases where a seizure or detention could not
be enforced by the ordinary civil power, and
it was necessary in the President's opinion
to employ naval or military power. . The
court went on to say that it could not have
been the intention of Congress that such a
power should be allowed as a shield to the
seizing party, in cases where that seizure
might be made by the ordinary civil means.
Ex parte Milligan (4 Wall. 2) : This is the
famous habeas corpus case arising from an
action .of a military tribunal against a citi-
zen of the United States -during the Civil
War.
Milligan was a citizen and resident of
Indiana. He was tried and convicted by a
military board under the auspices of martial
law. The argument was made by the Gov-
ernment that the President had -judged that,
under the circumstances, a military tribunal
alone could safely act.
The court held for Milligan because Con-
gress had not specified for a military trial
where civil courts were functioning and the
lack of trial by jury was, in Milligan's case,
unconstitutional.
Blake v. United States (103 U.S. 227) :
Statute provided for appointment of officers
of the Army?"by and with the consent of
the Senate."
An Army chaplain submitted a letter which
was construed as a resignation. The resig-
nation was accepted by the President. -Later
it developed that the chaplain was not of
sound mind" when the resignation was sub-
mitted. The President attempted to rein-
state after the resignation by an Executive
order. The court said, "He was not entitled
to pay as post chaplain from the date his suc-
cessor took rank. Having ceased to be an
officer in the Army, he could not become a
post chaplain -except under a new appoint-
ment, which by law had to be.'by and with
the advice and consent of the Senate.'"
In re Schuster at a/. (192 N.Y.S. 357) : A
statute provided that only the President
could authorize the naturalization of alien
enemies.
The statute provided for the investigation
and recommendation to the President by the
Department of Justice. The President tried,
by Executive order, to delegate his personal
supervision of applications to the Justice
Department.
? The court held that the act provided for
the personal determination by the President,
in each case, -of whether an alien enemy
shall_ be excepted from a certain classifica-
tion, which power is clearly of a judicial
character and the execution of which cannot
be delegated.
United States v: Western Union Tg. Co.
(272 F. 311, affirmed 272 F. 893;' 260 U.S. 754) :
Western Union had entered into a contract
with a British firm to make a connection
with a submarine cable off Cuba. The Fed-
eral Government by executive action re-
fused to allow Western Union to go beyond
the 3-mile limit. The court said that the
President is without constitutional power, in
the absence of authority from the legislature,
eptvnber 14
to prohibit the landing of a cable from a
foreign country on the coast 'of the United
States or otherwise connect with its internal
system. While conceding .that the Congrese
had, by long acquiescence, impliedly giver
authority to the Executive to prevent such a
landing by a foreign corporation, the court
said that authority does - not extend to (
domestic corporation which had a Federa
franchise under the Post Roads Act an(
which for many years had operated cable,
between Florida and Cuba constructed by
the express provision of the act and over
which Congress had at various times exer-
cised its authority directly and through th
Interstate Commerce Commission, in regu-
lating rates over both its internal lines anc
its cable connections.
Hood Rubber Co. v. Davis (151 N.E. 119) .
Case held that since the Lever Act conferred
upon the President powers to regulate th(
prices and the distril5ution of coal as a war
Measure,. an Executive order, that was in n(
way connected with war but restored a sus-
pended order of the Fuel Administration of
January 1918 regulating contracts for coal
was beyond the powers conferred.
Johnson v. Keating ex rel. Tarantino (1'
F. 2d 50),: An immigration case of an slier
.returning to the ,United States front Italy
He was exclUded upon his return. The Cour
held that the power given the President by
the War Act to impose by proclamation ad-
ditional restrictions on the departure of per
sons from and entry into the United State,
continued in effect "until otherwise pro-
vided by law," and those powers were tenni
nated as to immigrants by a Subsequent ac
which carefully revised the immigratioi
laws.
United States ex rel. Swyston v. McCand
less (24.F. 2d 211, 33 F. 2d 832) : An slier
was ordered to be deported because his viS.
had not been properly signed by an officia
The Court held that the alien had been i,
the United States for more than 3 years an
under the statute could not be deported. .?
proclamation of the Chief Executive require
a visa and proclaimed deportation as th
consequence of a failure to comply with the
requirement. However, the act under vvhicl
the President issued that proclamation ha(
not been kept in force as to the authority t
deport so the order of deportation was nc,
lawful.
United States v. Pan-American Petroleum
Co. (55 P. 2d 753, 287 U.S. 612) : Case in.
volved the Teapot Dome scandal. That psi
of the Court's ruling that is akin to th
problem at hand in the other cases digesta
here is the Court's upholding a lower cou
ruling that the Executive order of May 3.
1921, attempting to transfer the adminis
tration of the naval petroleum reserves frorr
the Secretary of the Navy to the Secretar
of the Interior, was invalid in view of th
act of June 4, 1920, which directed the Sec
retary of the Nay to take possession of a'
properties within naval petroleum reserv
which are or may become subject to th
control and used by the United States Is
naval purposes.
Zeiss v. United States (23 C.C.P.A. 7 (U.
Court of Customs and Patent Appeals) ,
When Tariff Commission did not confine i
investigation to the differences in the COP
of production of foreign and similar domes-
tic optical instruments of the class or type
used by the Armed Forces as stated in its
public notice, but went further and included
the differences in costs of production of in-
struments suitable for use by the Armed
Forces, its findings were without authority
Of law. Also, the proclamation of the Presi-
dent containing no finding that the binocu-
lars were of a class of type used by the Armed
Forces, was without authority of law because
the Senate resolution under which the in-
veStigation was made restricted the investi-
gation to those "used by" the Armed Forces.
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
1959 CON6RESSIONAL RECORD --- SENATE
p ?
United States ex rel. Von Heymann V. Wat-
kins (159 F. 2d 660) : An alien German was
brought to the United States from Costa Rica
and interned under an act which gave the
President authority to remove where an alien
refused or neglected to depart. The court
:mid that this restraint was unlawful insofar
as voluntary departure was interfered with
by the Government and the alien had not re-
fused nor neglected to depart for reasons
other than the forced detention by the au-'.
thorities.
Schechter Corporation v. United States
(295 U.S. 495) : In the Schechter case, the
Congress, by the enactment of the National
Industrial Recovery Act, delegated to the
President the power to approve various codes
of fair competition. The act provided for the
creation by the President of administrative
agencies to assist him, but the action of re-
ports of such agencies were to have no sanc-
tion beyond the will of the Presidents who
would accept, modify, or reject their sug-
gestion as he pleased.
The court held that this act was an un-
constitutional delegation of legislative power
to the Executive.
Youngstown Sheet & Tube Co. v. Sawyer
(343 U.S. 579) : The President by Executive
order directed the Secretary of Commerce to
seize and operate the steel mills. The order
was not based upon' any statutory author-
ity. The Congress had provided other meth-
ods through the Taft-Hartley Act to handle
such a need.
The court held that the Executive order
was not issued pursuant to the Constitution
or to a statute, and it was, therefore, of no
effect. Moreover, in its consideration of the
Tatto?Hartley Act the Congress refused to au-
thorize governmental seizures of property as
a method of preventing work stoppages and
settling labor disputes.
Cole v. Young (351 U.S. 536) : The 1950 act
provided for the dismissal of security risks
where employees were on classified work.
The President, pursuant to.the act, by Ex-
ecutive order, extended it to all Government
jobs. The defendant was not on classified
work, and he did have veteran's preference.
He was restored because the standards pre-
scribed bylthe Executive order and its appli-
cation by the Secretary were not in con-
formity with the act.
III
The following statements from Supreme
Court decisions clearly enunciate the law
with respect to the powers of the President
and other executive officers to exercise an un-
expressed constitutional. power for the pro-
mulgation of a directive, such as the Depart-
ment of Defense directive, which attempts to
contravene, modify, or amend -an existing
?statute. In the famous case of Marbury v.
Madison, Chief Justice Marshall said: 87
"By the Constitution of the United States,
the President is invested with certain impor-
tant political powers, in the exercise of which
he is to use his own discretion, and is ac-
countable only to his country in his politi- ,
cal character and to his own conscience. ? To
aid him in the performance of these duties,
he is authorized 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 sub-
jects are political. They respect the Nation,
not individual rights, and being intrusted to
the Executive, the decision of the Executive
Is conclusive. The application of this 're-
mark will be perceived by adverting to the
act, of Congress for establishing the Depart-
ment of Foreign Affairs. This officer, as his
duties were prescribed by that act, is to con-
?IF
Cranch 165.
form precisely to the,'will of the President.
He is the mere organ- by whom that will is
communicated. The acts of such an officer,
as an officer, can never be examinable by the
courts.
"But when the Legislature proceeds to im-
pose on that officer other duties; when he is
directed peremptorily to perform certain
acts; when the rights of individuals are de-
pendent on the performance of those acts;
he is so far the officer of the law; is amen-
able to the laws for his conduct; and cannot
at his discretion sport away the vested rights
of others."
Again, in U.S. v. Kendall, the Supreme
Court said: 84
"The executive power is vested in a Presi-
dent; as as far as his powers are derived
from the Constitution, he is beyond the
reach of any other department, except in the
mode prescribed by the Constitution through
the impeaching power. But it by no means
follows that every officer in every branch of
that department is under the exclusive di-
rection of the President. Such a principle,
we apprehend, is not and certainly cannot
be claimed by the President.
"There are certain political duties Un-
posed upon many officers in the executive
department, the discharge of which is un-
der the direction of the President. But it
would be an alarming doctrine, that Con-
gress cannot impose upon any executive
officer any duty they may think 'proper,
which is not repugnant to any rights secured
and protected by the Constitution; and in
such cases the duty and responsibility grow
out of and are 'subject to the control of the
law, and not to the direction of the Presi-
dent."
In the present case the statements of Mr.
Justice Jackson, a former Attorney General,
in his concurring opinion in the Youngstown
Steel Seizure decision have particular sig-
nificance with respect to the power of the
President and those who seek ,to claim his
authority for their acts. After referring to
himself as one "who has served as legal ad-
viser to a President in time of transition and
public anxiety," 85 he stated: 88
"When the President takes measures in-
compatible with the expressed or implied
will of Congress, his power is at its lowest
ebb, for them he can reply only upon his
own constitutional powers minus any con-
stitutional powers of Congress over the mat-
ter. Courts can sustain exclusive Presiden-
tial control in such a case only by disabling
the Congress from acting upon the subject.
[Footnote omitted.] Presidential claim to a
power at once so conclusive and preclusive
must be scrutinized with caution, for what
is at stake is the equilibrium established by
our constitutional system."
Mr. Justice Douglas in his concurring
opinion in the Youngstown case referred to
the Constitution and stated: 87
"Article II which vests the 'executive
power' in the President defines that power
with particularity. Article II, section 2
makes the Chief Executive the Commander
in Chief of the Army and Navy. But our
history and tradition rebel at the thonght
that the grant of military power carries with
It authority over civilian affairs. Article
section 3 provides that the President shall
'from time to time give to the Congress in-
formation of the state of the Union, and
recommend to their consideration such
measures as he shall judge necessary and ex-
pedient.' The power to recommend legisla-
tion granted to the President, serves only
to emphasize that it is his function to recom-
mend and that it it the function of the
Congfess to legislate. Article II, section 3
84 Peters 610.
85 Youngstown Sheet & Tube Co. at al. V.
Sawyer, 343 U.S. 634.
86 Ibid. at 637, 638.
8' Ibid. at pp. 632, 633,
17961
also provides that the President 'shall take
care that the laws be faithfully executed.'
But, as Mr. Justice Black and Mr. Justice
Frankfurter. point out, the power to execute
the laws starts and ends with the laws Con-
gress has enacted."
CONCLUSIONS OF 'LAW
I. No executive/officer can use his statutory
authority to prescribe rules and regulations
for the conduct of his office to issue a direc-
tive, rule, or regulation which contravenes,
modifies, or amends a statute.
II. No executive officer can use the alleged
constitutional power of the President, either
by expressed or assumed delegation, to issue
a directive, rule, or regulation which contra-
venes, modifies, or amends a statute.
III. A proclamation or Executive order
Issued by, the President is invalid if it con-
travenes, modifies, or amends a statute.
Mr. MONRONEY. I also ask unani-
mous corient that the last phrase of the
suggested amendment which appears as
the second paragraph in the third col-
umn on page 17738 of the CONGRESSIONAL
RECORD for Saturday, be corrected so as
to read "the limitation on the use of
funds provided in subsection (d) shall be
applicable, notwithstanding the certifica-
tion by the President."
out objection, it is so ordered,
The PRESIDING OFFICER. -With-
out
AGRICULTURAL RESEARCH
Mr. STENNIS. Mr. Presiderit, it has
been brought to my attentiorl,that scien-
tists in the Department oft, Agriculture
have ' made a major breakthrough in
basic agricultural research. It is my
understanding that this discovery, made
at Beltsville, Md., is receiving exciting
interest thr ughout the scientific world.
Researche s for the first time in his-
tory have entified and isolated the
chemical su tance -that controls plant
growth. Th discovery will have far-
reaching im lications and will set the
stage for r: olutionizing research in
the field of p nt growth. Much of this
will be basic udies that will help 'scien-
tists gain a ore complete understand-
ing of how a plant grows and its re-
action to light nd other growth factors.
With incre sed knowledge of pig-
ments, researc workers believe they will
be able to. ms o ify plants at will and
thereby influe e fruiting habits and
other basic ch acteristics. I visualize
this as giving so entists a new tool to fit
scientific needs ?: d provide means for
higher yields, i 'roved quality and in-
sect and disease ontrol. It will lead to
better food, fiber and raw materials and
in all probabilit greatly reduced cost
of production.
Mr. President, t is new discovery is an
important milesto e for agricultural re-
search and recon ms my strong belief
that funds spent or research are our
soundest investme t. I request unani-
mous consent that he news release pub-
lished by the Depa ,tment of Agriculture
be printed in the -41 CORD.
There being no objection, the release
was ordered to be orinted in the REC-
ORD, as follows:
USDA SCIENTISTS FIND HOW LIGHT CONTROLS
PLANT DEVELOPMENT
The triggering mechanism for all plant
development has just been found by U.S.
Department of Agriculture scientists. The
discovery promises to be the key to man's
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5
17962 CONGRESSIONAL RECORD ? SENATE
complete control of plant growth from seed
germination through plant flowering and
fruiting. ?
. The scientists have recovered the pigment
forms from corn plants and have removed
some of the impurities. The material iso-
lated is a protein, and functions as an en-
zyme. The pigment forms can be converted
from one to the other outside of the plant,
and this action can be detected by labora-
tory instruments. In the -past conversion of
one form to the other was detected only by
plant response. Now the presence of each
can be detected by absorption of red or far-
red light.
As the pigment forms are purified further,
the scientists believe that they will be able
to identify and modify them at will, and
thereby influence the character of plant
growth.
For scientists the discovery opens the door
to further research on this triggering action
to enable man to tailor make plants for his
needs. Possible results are crops of special
heights for better harvesting, flowering of
plants at times convenient to man, or for
better control of plant pests.
Dr. Byron T. Shaw, Administrator of
'USDA's Agricultural Research Service, hails
the discovery as an outstanding basic re-
search achievement. "It is the kind of dis-
covery envisioned when the Department's
new pioneering research laboratories were
established. It provides means for the better
control of plant development for specific pur-
poses?for better food, fiber, and industrial
raw material," 'he said.
.Drs. Harry A. Borthwick and Sterling 13;
Hendricks, at the Agricultural Research Cen-
ter, Beltsville, Md., made the discovery in
studying the effects of differences in the
color and intensity of light on growth re-
sponses such as flowering, seed germination,
elongation, and color production. Associated
in the research also were Harold W. Siegle-
man, of the Agricultural Research Service,
and Carl Norris and Warren Butler, both of
the Agricultural Marketing Service.
It has long been known that light controls
the reddening of apples by governing the for-
mation of the coloring material. The side of
the apple facing out from the tree is usually
redder than the side facing the center of the
tree.
Recently the scientists found the critical
range of light for apple coloring to be in the
red region of 6,200 to 6,900 Angstrom units.
Above this region the amount of reddening
of the apple declines rapidly as the wave-
length of light increases toward far-red,
With soybeans growing on short days and
long nights, an extremely short exposure to
red light during the night will prevent the
plant from flowering. Conversely, an equally
short period of far-red light causes the plant
to flower. However, if the intensity of far-
red light is increased 100 times, the plant
again fails to flower.
Drs. Borthwick and Hendricks have found
growth responses to be governed by a reversi-
ble chemical reaction that is controlled by
the color and intensity 'of light acting upon
two pigment 'forms present in plants in in-
visible quantities.
One form of the pigment absorbs red light
and the other far-red light. The pigment
form that predominates in a plant depends
upon the color of light to which the plant is
exposed. The form produced by the action
of red light regulates plant growth and can
absorb far-red light. However, if this form
absorbs far-red light it is converted back to
the red-absorbing form that does not regu-
late plant growth. -
To obtain the various colors of light for
the experiment, the scientists directed white
light from a high-intensity electric arc
through a prism to- break it into all the
colors of the spectrum as is a rainbow. The
portion of light used in this work was the
red part of the spectrum from yellow (5,800
A.) to far-red (near the limit of visible red
light (7,000 to 7,500 A.), which is near the
range of infrared or heat energy) . An Ang-
strom unit, a measure of wavelength of light,
is one millionth of a centimeter.
Colors in the yellow and orange range of
5,800 to 6,300 A. are absorbed largely by the
red-absorbing pigment form, inoving the
photoreaction toward the production of the
growth regulating form.
The red-absorbing form can utilize more
light in the 6,300 to 6,700 A. region, red-
orange to red than in other ranges. There-
fore, this is the range requiring the least
amount of light energy to convert this pig-
ment form to the regulating pigment. Both
pigment forms are present in this range of
colors, but the regulating type predominates.
Both forms of pigment are present in about
equal amounts in the 6,700 to 7,200 A. (red)
region, with the midway point in the re-
action about 6,950 A. At longer wavelengths
the reaction moves toward the red-absorb-
ing form and the shorter wavelengths (to-
ward yellow) stimulate the production of
the growth regulating form.
In the far-red region of 7,200 to 7,800 A.
light absorption by the regulating form of
pigment is at maximum, moving the reac-
tion toward the reformation of the red-
absorbing form.
It is the selective absorption of the various
colors of light by the two pigment forms
that apparently governs many phases of a
plant's development, including flowering,
germination, and elongation, and that prom-
ises to add even more knowledge of plant
development.
Maximum suppression of germination of
Great Lakes lettuce seed takes place near
7,000 A. The scientists also found that
elongation of the lettuce root was controlled
by the color of light. Elongation was found
to be suppressed at 6,100 A. (orange) and
stimulated by exposure to light in the far-
red region of 7,509 A.
The intensity of light also has a marked
effect on the germination of lettuce seed.
Exposed to light of 7,500 A,, for example, an
Intensity of 0.8 microwatts per square centi-
meter results in about 70 percent germina-
tion. An increase to 2 microwatts gives
about 35 percent germination, while 30 mi-
crowatts reduces the germination to almost
zero.
These differences, the scientists point out,
vary according to the wavelength's of light
being used in the experiment. Below wave-
lengths of 6,800 A. there are no appreciable
differences in germination between the three
levels of light intensity (0.8 to 30 micro-
watts) .
LONGER TERM LEASES OF CE
INDIAN LANDS?CONFERENCE RE-
PORT
Mr. ANDERSON. Mr. President, I
submit a report of the committee of
conference on the disagreeing votes of
the two Houses on the amendment of
the Senate to the bill (H.R. 6672) to
authorize longer term leases of Indian
lands on the Agua Caliente (Palm
Springs) Reservation. I ask unanimous
consent for the present consideration of
the report.
The PRESIDING OrEICER. The re-
port will be read , for the information
of the Senate.
The legislative clerk read the report.
(For conference report, see House
proceedings of today.)
The PRESIDING OFFICER. Is there
objection to the present consideration of
the report?
There being no objection, the report
was considered and agreed to.
,lutevber: 14
MUTUAL SECURITY APPROPRIA-
TIONS, 1960
The Senate resumed the consideration
of the bill (H.R. 8385) making appro-
priations for mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
Mr. GORE. Mr. President, I voted for
the civil rights bill in 1957. I did so
with a deep conviction that the passage
of that moderate civil rights bill con-
stituted progress in a vexatious field of
human relations in which the existence
of injustice and discrimination would
no longer permit inaction, but in which
we must beware of the dangers of using
force to push beyond the tolerance of
public conscience and acceptance.
I thought passage of the civil rights
bill of 1957 was a victory for the forces of
reason and moderation, and a defeat for
the forces of extremism. I voted for it
with a deep conviction that the prob-
lems could not and should not longer be
ignored by Congress, and that a public
examination of the facts and conditions
affecting the civil rights of all citizens
would serve well the cause of freedom,
equality, and justice throughout the
United States.
I think it is a grave error, Mr. Presi-
dent, for Senators to regard civil rights
as strictly a sectional problem. The
problem is a national one. It exists in
one form or another and,in varying de-
grees of acuteness in many States.
Moreover, there are some disturbing
signs that tensions between groupings of
our people may be tending to increase
rather than abate. Perhaps these indi-
cations are misleading. I hope so; but
prudence and a decent social conscience
require recognition and action.
The Civil Rights Commission has now
submitted its report to the Congress and
to the President. To me, this report is
disappointing. The Commission has in-
cluded in its report statements which
are obviously based on hearsay evidence
-and which, indeed, are admittedly un-
verified. This applies to some state-
ments in the report with respect to con-
ditions in the State of Tennessee. I
would like to make it plain that I be-
lieve every qualified citizen should not
only be permitted to vote, but should be
encouraged to vote. The prevalence of
contrary conditions in some communi-
ties, however, does not justify the publi-
cation of untrue, hearsay evidence or
unverified rumor.
The Commission has included in its re-
port recommendations of far-reaching
import. The fact that several of these
recommendations do not have the en-
dorsement of the majority of the Com-
mission indicates immature, if not hasty,
conclusions.
Even so, the report is not without
merit. Some of the suggestions merit
serious consideration by the Congress
and the American people. The Commis-
sion quite properly concerned itself with
the question of State laws relative to the
qualifications of voters and has under-
taken to examine administration of such
laws, to ascertain whether discrimina-
tion exists. Please permit me to repeat
my oft-stated conviction that the right
to vote is one which should not be de-
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120009-5