LETTER TO THE HONORABLE, THE SECRETARY OF WAR FROM FRANK L. YATES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00610R000100140004-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: December 9, 2002
• Sequence Number: 4
• Publication Date: June 27, 1946
• Content Type: LETTER

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ASSIST.ANT COMPTROLLER GEIr AL OF THE UNITED STATES
Washington 25
8-58541 June 27, 1946
The Honorable,
The Secretary of War.
My dear Mr. Secretary:
There has been considered your undated letter received in this
office on June 13, 1946, as follows:
"Because of Revised Statute 1222 (10 U.S.C. 756) which prohibits
an Army officer on the. active list from accepting a civil office and
provides that on so doing his-commission shall be vacated, the question
of whether a Regular Army officer on the active list may accept the
commissionership for the United States on the United Nations War Crimes
Commission now sitting in London, is referred to you for an opinion.
The question of pay and allowances is necessarily involved.
"The United. Nations War Crimes Commission is composed. of repre-
sentatives from seventeen United Nations. Some of these representatives
are civilians, whereas others are military personnel. The United States
representative, who resigned recently,, was Colonel Joseph V. Hodgson,
JAGD, who is now being separated from active duty in the Army. The
functions of the Commission have been described as follows:
"'The Commission is primarily a fact-finding body, but it has also
advisory functions.
"'Its terms of reference were strictly defined in the Lord Chan-
cellor's statement of October 7, 1942. Its purpose, he said, is to
investigate war crimes committed against nationals of the United Nations,
recording the testimony available, and to report from time to time to
the Governments of those nations cases in which such crimes appear to
have been committed, naming and identifying wherever possible the
persons responsible.
"'After its creation, the Commission was entrusted with advisory
functions, namely to make recommendations to the Governments on the
methods to be adopted to ensure the surrender or capture of the persons
wanted for trial as war criminals and on the tribunals by which they
should be tried.' (United Nations War Crimes Commission, 'The Bathurst
Report', American Journal of International Law, July, 1945)
"It is assumed that the officer selected will be appointed as
commissioner by the President as Commander in Chief, and will assume
his post pursuant to Army orders, attaching him, like his predecessor,
to the staff of theihilitary Attache where he will receive his Army
pay and allowances. * * *
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The question now presented did not arise in the case of the
retiring commissioner, Colonel Joseph V. Hodgson, JAGD, because he
was not a member of the Regular Army."
The matter was discussed in a memorandum dated May 20, 1916,
prepared in the Office of the Judge Advocate General of the Army,
in part as follows:
"Construing section 1222 of the Revised Statutes, supra, and the
expression 'civil offices contained therein, this office pointed out
that the prohibition in the matter of Army officers holding civil
office was part of the act of 15 July 1870 (16 Stat. 319), which
accomplished a general reduction in the strength of the military
establishment after the increase of January 28, 1966. Opinion was
expressed that the prohibition obviously applied to civil office
within the territorial and legislative jurisdiction of the United
States and of Congress, and has no application to the performance of
civil duties by officers of the Army in occupied territory, for the
reason that military occupation is an incident of command and so comes
within the plenary and exclusive jurisdiction of the President as
commander in chief, and under ordinary circumstances had application
to foreign territory-i.e., to territory which had not yet been in-
corporated into that of the United States (C.5771, 2 Feb 1999: 20396,
17 Apr 1908). Thus, it was concluded that assignments of officers of
the Army to be collectors of customs in Cuba and Porto Rico, when under
military occupation, were assignments to military duty and not to civil
offices within the meaning of section 1222. Accordingly, it was further
held that officers so assigned might not receive additional compensation
for the execution of such duty (C.5771, 2 Feb 1899; Dig. Op. JAG, 1912,
p. 812, 913).
"On the question whether an officer of the Army could, without
vacating his commission (R.S. 1222 and 1860), hold a civil office in
the Philippines, it was held that in those sections of the Philippines
which were skill under the jurisdiction of the Philippine Commission. in coatradistinct..ou to the remainder, which was under the joint
jurisdiction of the commission and the Philippine A.,::e'riU. , ar,
officer of the -Ixmy .uu U hold civil office.:, as the c c imi: si cn was
but a continuation of thb gure;:nment of mlli tars oc,;L:,p;LLion; and under
the latter officers who hold civil office are doing military duty
(C. 25629, 30 Sep 1909; Dig. Op. JAG, 1912, p. 81.0).,
1'4. It would seem ::}.gat thv Commissioner for the United States oa
the United N:..t'_on;3 JJa[ C_. '_i'.ii : Comri1s ;ion ii con.zi i'ri C1 only with r t.t rs
arising out of the ret r =i M.i11 ;a. y operation:;..- The eoaiiission investi-
gates and advises on re,.or's of violations of the laws of war co !itted
against United Nations ,tr,onnel. it assists in recording available
testimony, makes re orts to interested o er 'e
crimes FBra l$~ $ 20 Pty' :, CJ F~D 73'~r o9c~ rd's
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the names of persons responsible. The commission also makes recom-
mendations in an advisory capacity as to the apprehension and. trial of
accused persons. All of these activities are seen to be directly
related to war activities and in furtherance of announced war aims of
the United Nations.
"Accordingly, it can hardly be said that the Commissioner for the
United States on the United Nations War Crimes Commission exercises the.,
functions of a civil office. He deals only with the peculiar crimes
arising out of the recent hostilities. The accused will in every case
be an enemy national. Trials will be held before military commissions,
with military judges and under military law. Any sentences which may
be imaosed will be carried out by military authority.
son the basis of the foregoing dicussion, it is concluded that
the position of Commissioner for the United. States on the United Nations
War Crimes Commission is not a civil office within the meaning of
section 1222 of the Revised Statutes, supra, and that appointment to
that position of an officer of the United States Army on the Active
list will not operate to vacate his commission in the Regular Army."
Section 1222, Revised Statutes, referred to in your letter,
provides:
"No officer of the Army on the active list shall hold any civ 1
office, whether by election or appointment, and every such officer
who accents or exercises the functions of a civil office shall theieby
cease to be an officer of the Army, and his commission shall therel)y
be vacated."
Provision for expenses for participation by the United States in
the United Nations War Crimes Commission was first made in the Dep,>rtmert
of State Appropriation Act, 1946, under the heading "United Nation3
Commission for the Investigation of War Crimes as follows (59 Stat.
130).
"For all necessary expenses of the participation by the Unitel
States in the United Nations Commission for the Investigation of V---r
Crimes; including personal services without regard to civil-service
and classification laws; travel expenses without regard to the
Standardized Government Travel Regulations and the Subsistence Expense
Act of 1926, as amended; representation allowances in accordance e,i.th
the Act of LIay 24, 1924 (22 U.S.C. i2); stenographic reporting and
other services by contract, booi.s of reference ana periodicals, and
the rent of office space, without regard to section 3709 of the Revised
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Statutes; printing and, binding; and the share of the United States in
the expenses of the secretariat of the Commission $60,000." (Under-
scoring supplied.)
At the hearings before a subcommittee of the Committee on Appropriations,
House of Representatives, 79th Congress, First Session, on the Depart-
ment of State Appropriation bill for 1946, H.R. 2603, it was stated.
with respect to the foregoing provision (see report of the hearing,
Page 78 et seR.)
"Mr. Hackworth. It is proposed to go on with the work of the
War Crimes Commission in which we have been participating. That
Commission, as you may know, was established in October 1943, and. we
used, out of the President's emergency fund, the necessary funds for
carrying on the work up to the end of December 1944. By reason of
the fact that Congress had passed an act prohibiting the use of the
emergency fund for such an organization, we came to the Congress last
December and asked for funds to carry us over to the end of the fiscal
year 1945,
"Mr. Rabaut. You came to the Deficiency Committee.
"Mr. Hackworth. Yes. That appropriation failed, and as a result
we have not been able to send our man to London, and we are now asking
for funds to enable us to go on with this work the next fiscal year,
1946.
"DUTIES OF THE CO!UIISSION
"I4r. Rabaut. Tell us roughly what the work of the Commission
consists of.
"Mr. Hackworth. The Commission was established to investigate
war crimes, after statements made by the President, the Secretary of
State, and various foreign governments concerning the necessity of
punishing war criminals. After the Commission was under way for a
short time it was given the additional duty of making recoendati.ons
to the governments with respect to procedural matters, and at the
present time those are the functions of the Commission; namely, to
investigate war crimes cases and to make recommendations with respect
to methods of procedure in handling the cases. Briefly, that is about
the situation as it stands today.
* * IMr. Rabaut. Is the 'Wrar Crimes Commission meeting. now?
nNr. . Backwor th . It is.
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"Mr. Rabaut. Have you got a representative on it?
"Mr. Hackworth. We have. Lieutenant Colonel Hodgson, a War
Department man, is on the Commission.
"Mr. Rabaut. Hour many members would you have on the Commission?
"Mr. Hackworth. Before the appropriation failed we had a Com-
missioner and a Deputy Commissioner: Colonel Hodgson was the Deputy
Commissioner. He is carrying on,.
"Mr. Rabaut. Who was the Commissioner?
0Mir. Hackworth. The Commissioner was Mr. Pell of New York State.
"ALLOZATI08 OF PUIDS APPROPRIATED
r'is.r. Rabaut. How do you propose to spend this $60,000?
"Mr. Hackworth. It will go to pay the salaries of our representati i&
on the commission and his assistants, rent, heat and light, living
allowances, and our contribution to the over-all expenses of the com-
mission, wrhich thus far has been comparatively small. (Underscoring
supplied.)
ttXr. Rabaut. That expense of ours, I suppose, is broken down so
as to be commensurate with that of Great Britain?
"Mr. Hackworth. Yes; the over-all expense, as I remember now, is
prorated on an equal basis. The basic contribution is on an equal
basis, 400 pounds a year. Anything in excess is on a prorated basis.
Each country contributes an equal amount to the over-all expenses.
rrL- V
?g OF EMPLOYEES
"Mr. Rabaut. How many employees do you have in the set-up?
"P?ir. Hack ,orth. Our set-up has been very small. We 'have had
iir. Pell, and provision for an assistant to him, who has not been
appointed. There is provision for two people at $5,600 a year; an
administrative assistant and two clerk-stenographers.
"Mr. Jones. As I understand there is no basic authority for this
commission.
"Mr. Hackworth. For this War Crimes Commission?
"Mr. Jones. Yes
"Mr.. Hackworth: There is no basic law here that I know of.Ir
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Thus, from the said appropriation provision and what was brought
out at the hearings, it would appear that while the position of
commissioner for the United States on the United Nations War Crimes
Commission was not expressly created by statute, it was legislative)y
recognized as existing under the jurisdiction of the Department of State_
a civil agency of the Government--for an indefinite period, on a civil
salary basis, with representation allowances as authorized for civil
officers of the Department of State by section 12 of the act of May 24,
1924, 43 Stat. 1l.2, as amended, 22 U.S.C. 12, and that such position
originally was filled by a civil representative of the Government. In
view of such circumstances, this office would not be warranted in con-
cluding on the present record that such position is not a "civil offi_cea
within the meaning and intent of that term as used in section 1222,
Revised Statutes, supra. See decision of November 2, 1945, 25 Comp. Gen.
377, and the authorities cited and discussed therein. In that situation,
this office would appear necessarily required to question the continued
payment of pay and allowances to an officer on the active list of th-=
Regular Army if he should accept or exercise the functions of the
commissionership for the United States on the United Nations War
Crimes Commission, unless and until it should be judicially de-
termined that he had not thereby vacated his commission in the Army
(1 Comp.. Gen. 499), or unless the President finds that the utili-
zation of an officer on the active list of the regular Army on this
commission will aid in carrying out the purposes set forth in
section 1, Title I, of the First Jar Powers Act of December ig,
1941, 55 Stat. gag.
Respectfully,
(Signed) FRANK L. YATES
Assistant Comptroller e al.
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