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

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP58-00453R000100090012-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: November 11, 2016
• Document Release Date: December 31, 1998
• Sequence Number: 12
• Content Type: REPORT

Approved For Release 1999/09/16 : CIA-RDP58-M453R000100090012-3
MEMORANDUM ON THE MIER OP
=CRESS/MAL COMMITTEES TO INVESTIGATE
THE CENTRAL INTELLIIMMEMACENCY
The National Security Act of 19470 50 U.S.C. 4010 et omg.,? (popularly
referred to as the "Armed Forces Unification Act") established the Central
Intelligence Agency, and prescribed its duties and functions. Section
1.03 (d)(3) of the Act ;pacifically provides that "...the Director of
Central Intelligence shall be responsible for protecting intelligence
sonrces and methods from unauthorized disclosure."
The key words to this provision are "unauthorized disclosure". The
only logical interpretation of these words is that a disclosure is
"unauthorized" when it has not been authorized by the Director, as he, and he
alone, is in a position to detersdne whether intelligence sources and
methods are involved. This provision strengthens and expands the powers
which executive departments and agencies have historically been deemed
to possess under the constitutional doctrine of separation of powers,
even in the absence of a specific statute conferring these powers.
Although the issue has never been tested in the Courts, the political
history of the United States contains numerous instances where the Presi-
dent and executive heads of departments have refused to furnish informa-
tion to Congressional committees for reasons of public interest. On
each OCCisiOD where the President has supported the departmental head's
refusal to divulge confidential information, the papers and information
have been withheld. This uniform result stems from the fundamental
proposition that governs the interrelation of the three great branches
of the Federal Government; that no one of the three has the power to
subject either of the at two to its unrestrained will. Weighed
against this, of course, is our fundaments1 theory of checks and balances.
Where Congressional requests have been denied or politely turned asidm,
the explanation of public interest has invariably been given. Former
President William Howard Taft said on this subject:
"The President is required by the Constitution from time
to time to give to Congress information on the State of the
Union, and to recommend for its consideration such measures as
he shall judge necessary and expedient, but this does not
enable Congress or either House of Congress to elicit from him
confidential information which he has acquired for the purpose
of enabling bin to discharge his constitutional duties; if he
does not deem the disclosure of such information prudent or in
the public interest." Will Howard Taft, Our Chief Mngistrate
and His Pawn, p. 129.
The President and his departmental heads have in the past on
occasion furnished classified information which the Congress sought.
They have done so in a spirit of comity, not because of any effective
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For lease 1999/09/16 : CIA-RDP581t453R000100090012-3
means to compel thee to do so. It has become generally recognised
that a subpoena duces time, issued by a Congressional committee to
an executive heed of department and calling for the production of
testimony and records, need not be complied with if disclosure of
contents would be detrimental to the public interest. As a practi-
cal matter, where the President has directed non-appearance? in
response to the subpoena, the person summoned has so advised the
committees or has Appeared and claimed privilege.
Although Congress has by statute provided the organic legisla-
tiaa for certain executive departments and agencies and can by lam
change their duties, abolish them, or withhold their appropriations,
it may not use legislative power to compel the heads of such depart-
ments or agencies to act contrary to what the President finds is in
the public interest. The President is the judge of the interest in-
volved and in the exercise of his discretion must be accnuntable to
the country and his conscience. The executive branch of the Govern-
sent is intended to assist him in the execution of hie responsibilities.
There is annexed hereto as Appendix A. an historical summary
.of certain occasioos where the legislative has sought confidential
executive papers or information and has been refused.
Although there are no cases on the power of Congress to Obtain
classified information from the executive, there are many upholding the
executive's right to withhold such information in suits by private
parties. Appendix B. contains a summary of the more important of
these cases.
In addition to the provision quoted above from the National Security
Act of 1947, there are other statutory provisions relieving CIA of the
reporting requirements imposed on other departments and agencies. Thus
Section 7 of the Central Intelligence Act of 1949, 50 U.S.C. 403g speci-
fically exempts the Agency from the requirement of furnishing personnel
data for publication in the Official Register of the United States, and,
in general, exempts the Agency from the provisions of all other federal
'housekeeping" statutes requiring disclosure of organisation, functions,
and other personnel information. This Section reads as follows:
"In the interests of the security of the foreign in-
telligence activities of the United States and in order fur.
ther to implement the proviso of section 102 (d)(3) of the
National Security Act of 1947 (Public Law 253, Eightieth
Congress, first session) that the Director of Central. Intent.
gence shall be responsible for protecting intelligence
sources and methods from unauthorised disclosure, the *
Agency shall be exempted from the provisions of sections
1 and 2, chapter 795 of the Act of August 28, 1935 (49 Stat.
956,957; 5 U.S.C. 654), and the provisions of any other DAV
which require the publication or disclosure of the organi-
zation, functions, names, official titles, salaries, or numbers
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Relea,se 1999/09/16 : CIA-RDP58-004,13R000100090012-3
f personnel eup oyed by the Agency: Provided, That in
furtherance of this section, the Director of the Bureau of
the Budget shall make no reports to the Congress in con-
nection with the Agency under section 607, title VI, char-
ter 212 of the Act of June 30, 1945, as ended (5 U.S.C.
947 (b))."
To summarize, Congress has recognized the
in the conduct of CIA's activities,? has charged
ponsfbility of safeguarding such secrecy- and
ta the necessaryenthority to do so. Even had
such action, the Director would have the power,
to withhold any information which he considered
secret of the executive branch.
necessity of se ecy
its Director with the
has conferred upon
Congress not taken
under the Constitution,
to be an official
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Re!else 1999/09/16 : CIA-RDP58-0040R000100090012-3
APPENDIX
SUMMARY OF 0 $ WHEN Tilt. LEGISLATIVE HAS SOUGHT TO
CCMPEL THE EXECUTIVE TO PRODUCE CONFIDENTIAL DOCUMENT
of 1792 e Ecuse of fieeaentattvespassed the following
"Resolved That a cemmittee be appointed to inquire into
the causes of the failure of the late expeditiae under Major
General St. Clair; and that the said ccendttee be empowered to
call for such persons, papers, and records, as may be necessary
to assist their inquiries." 3 Annals of Congress, p. 493.
The expedition of General St. Clair had been under the direction
et the Secretary of War and the assertion of the House of Representatives
of its rights to investigate vas predicated ion its control of the
expenditure of public monies.? The Secretaries of War and Treasury
apparently appeared in person befcre the committee. However, yhen
President Washington himself was asked for the papers pertaining to the
General St. Clair campaign, a cabinet meeting's/as caled at which it
W$$ unanimously concluded that the President should cnemnnlcate only
such papers as the public good would permit and should refuse disclosure
of those which would injure the pnblic. All but Secretary of the
Treasury Alexander Famdlton believed this doctrine applied as well to
Heads of Departments who come under the President.
In 17960 President Washington vas presented vith a House resolution
requesting that the House be shown a cagy of the instructioas to the
U. S. Minister vho negotiated the peace treaty with Great Britain
together vith related documents and correspondence. The House was
insisting on examination of these papers as a condition precedent to
appropriating funds to implement the treaty.
Washington addressed a message to the House in vhth diseussed
the requisites of secreey in international intercourse and expressed
the feeling that admission of the House of Representatives into the
treaty making process would create clangorous precedence. He concluded
the address by a categoric refusal to divulge the information requested.
In January 18070 during Jefferson's administration, Representative
Randolph introduced the following resolution:
Resolved, That, the President of the Uited States be, anbe d
hereby is, requested to ley before this House aay information
in possession of the Executive* except such as he may deem the
public welfare to require not to be disclosed, touching any
Appendix A
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00443R000100090012-3
illegal combination of private individuals &gooiest the peace
and safety of the Uhionl or any military expedition planned by
such individuals ageinst the territories of any Power in amity
vith the United States; together with the meaaures which the
EMecative has pursued and proecees to take for going or
defeating the same.' 16 Annals of Congress (1:-.0-1807), p. 336.
This resolution vas overwhee4eelypaesed at a tire when the
in coma:piracy was stirring the country. Jefferecals message to
the Senate and House provided a summary of recent events and then
with respect to the accumulation of asts, in his hands. stated:
...In this atate of the evidence delivered sometimes, too under
the restriction of private confidence, neither safety nar justice
viii permit the exposing names, except that of the principal actor
whose guilt is placed beyond question. Richardson Messages and
POWs or the' Presidents, Vol. I, p. It.120 dated January 220 luo7
Oa three different occasices President Andrew jackson success-
fully resisted attempts by the House and Senate to extract informa-
tion endpapers of the Executive considered to be confidential. The
first of these was a request for a capy of a ;leper which bad been
published and allegedly read by the Executive to the Beads of the
Departments. The second was a regyest for information in connection
with the investigation by the Senate respecting frauds in the sale
of public lands. The third was a. request in cemnection with a House
resolution to investigate the condition of the Executive Department
concerning their integrity and efficiency.
1842 during John Tyler's administration, the eri
established that all papers and documents relating to p1ieat tons
for office ere? of a confidential mature, and an appeal to a President
to-make such records public should be refused. Tyler abjectly
denied a request to communicate to the House the names of such mem*
bore of the 26th and 27th Coegresses as had epplied for office, and
for what offices, and whether in pars= or by writing or through
friends.
Pres dent Tyler
tug confidential inform
inquiry into reports relative to the
and frauds alleged to have been ract
to the House dated January 31,
ter oacasIon in vi d-
in ceenection vith un
of the Cherokee Indians
ed on them. In a message
tated:
"...The injunction of the Ctitituticn. that the President 'shell
take eare that the laws be faithfully executed, necessri1y confers
en aetharity, commensurate vith the obligetion imposed to inquire
into the manner in vhich all public agents perm the duties as-
signed to them by law. To be effective, these inquiries must often
be confidential. They say result in the collection of truth or of
Appendix 2)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Re!Ripe 1999/09/16 : CIA-RDP58-004,45,3R000100090012-3
raLeboo; or they noir be inc lete, and may reqiiire furt
To maintain that the President can exercise no diecretion
as to the time in which the matters thus collected shall be promul
gated, or in respect to the character of the information obtained,
voila deprive blast one of the means of performing one of the most
salutary duties of his office. An inquiry eight be arrested at its
first stage, an the officers whose conduct demanded investigatien
maybe enabled to elude or defeat it. To regaire from the EXecu
tive the transfer of this discretion to a coordinate branch of the
Gcmernment is eggivalent to the denial of its possession by him and
*mid render him dependent epon that branch in the performance of
duty purely executive." Hinde, precedente ef the Heim 9f
Representativee Volumn 3, p. 181 (1051)
A few years later during James X. Polk's adeinistra reso-
lution of the House of Representatives regyested the Pz'e5Uent to
furnish the &use en account of all payments made on the President's
certificates, with copies or all nemoranda regerdieg evidence of
such payzents? through the agency of the State Department, for the
contingent expenses of foreign intercourse from March 4, 1841, until
the retirement of Daniel Webster from the Department of State. In
1841, John Tyler was President with Webster his Secretary of State.
Tbe request, therefore, vas for the details of certain payment made
by the State repartuent during the preceAtng administration.
Polk replied to the reqpest:
An important question arises, whether subsequent Presi n
ther voluntarily or at the request of oze branch of Congress, can
thout a violation of the epirit of the law revise the acts of his
&zees= and expose to public view that which be had deterzined
ould not be 'made public.' If not a matter of strict duty, it
would certainly be a safe general rule that this should not be done.
Indeed, it may well happen, and probably would happen, that the
President for the time being would not be in poesession of the in-
tion upon which his predecessor acted, and could not, therefore,
have the means of judging whether he bad exercised his discretion
wisely or not." Richardson, Meesages and Papers of the presidents,
via, IV, p. 433.
This action illustrates the principle that what a Peat Eresteut
has done, Whether or not by law be was entitled to keen it confiden-
tial, a eubseqpent President will not reveal. President Polk felt
obliged to maintain secrecy because of the dangers of precedence
deepite strong public feeling then existing agoinst secrecy of anY
ktpa in the administration of the government, especially in matters
of public expenditures. Polk was able to point to a log that had
enabled his predecessors in office, in the public interest, to keep
expenditures of a certain kind secret in nature. Ccmgress, of course,
could have repealed the law had it chosen to do so.
Appendix A (3)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
March 280 1860 vas c
by the House of Representatives to
O f influence had been brought to beer
or against the passage of any low relating
tate or territory.
1876, President Grant fought a hostile House
barge of his purely Executive office acts and duties.
zed the constitutional authority given the House of
to require of the Executive information necessary
or impeachment. The inquiry involved vas not for
so and if for IMpeachment, Grant objected that
o deny him the baffle right not tote evitness
t became evident that the House reoest vas a
SB the President by reason of his having
Long Branch.
tratioa of Grover Cleveland the swat
,n the Senate and Etecutive Departments"
out of Cleveland's dismissal from
50 perscos in the Executive branch.
intent to vithhold officialpapers but
d documents inherently primate or c4nfiden-
sident or a Head of a Department, having
reference to an aet entie1iElecutive? were changed In their nature
and became official vlien placed for convenience in custody of public
departments. Coneerning such papers the President felt that he
could vith entire propriety destroy them or take them into his ova
personal custody. Cleveland von his victory. His action established
* precedent for setting apart far the first time private papers in
the Executive Departments from, public documents. The ETeeident was
the one who established the character of the papers.
President Theodore Roosevelt proved successfUI in his sist-
&nes to a Senate resolution calling for the production of all docu-
ments in connection with federal anti-trust actions. Roosevelt re-
fused to disclose the reasons why particular actions bad not been
taken. The Senate vas equctily thwarted in its attempt to get its
information from two heads of departments. Subsequently there was
introduced the fdllosing resolution in the Senate.
"Resolved by the Senate, That any and every publicnt
mewl or record, or copy thereof, on the files of any department
of the Government relating to any subject whatever over which Con
grins has any grant of Txrder, jurisdiction, or control, under the
Constitution and any information relative thereto within the pos-
session of the offices of the department, is subject to the call or
inepection of the Senate for its use in the exercise of its consti-
tutional powers and jurisdiction." 43 Cong. Rec. 839 (1909).
IftSgen
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-004L3R000100090012-3
of
bl
ly debate that ensued the tol1cin points seem
vas no law which ceUed heads of departnents
to Congress.
2. That if a head of a departnient refused to Obey a subpoena
of either of the Rouses of Congress, there was no effective puniehment
vhich Congress could mete out.
The resolution never came to a vote.
President Coolidge in 1924 was compelled to thwart a Senatorial
attempt to vent a, personal grievance on the Secretary of the Treasury
by ostensibly obtaining information from him upon vhLch to recommend
reforms in the law and in the administration of the Internal Revenue.
Mr. Coolidge in a special message to the Senate dated April 110 1924
stated it was recognised both by law and custom that there was certain
confidential information which it would be detrimental to the public
service to reveal.
In June of 1930 the Senate Foreign Relations Committee sought
from the Secretary of State cont2ential telegrams and letters
leading up to the London conference and treaty. Secretary Stimson
provided such information as be could which evidently fell short of
satisfying the committee. A resolution of the committee to the
effect that it regarded all facts which entered into the antecedent
and negotiations of apy treaty as relevant and pertinent when question
of ratification was involved. A message from President Hoover to the
Senate on July 11, 1930 culminated this lengthy bitter debate. In this
be pointed out the number of informal statements and reports given our
gpvernment in confidence. To pUblieh such statements and reports would
be a breach of trust of which the ftecutive should not be guilty. The
debate wound up in the adoption of a fete-saving resolution by
Senator Morris.
The administration ofFranklin le. Roosevelt affords
Instances of legislative attempts to obtain confidential executive
papers. The first of these occurred in May of 1935. President
successfully avoided a precedent of *ending to the Congress the text
of remarks made at a, bi-weekly press conference.
In April of 1941, Attorney General Jackson was requested by the
Chairman of the House Committee on Naval Affairs to furnish all Federal
Bureau or Investigation reports since June 19390 together with "all
future reports, memoranda, and correspondenze, of the Federal Bureau of
Investigation, or the Department of Justice, in connection with investi-
gations made by the Department of justice arising out of strikes,
subversive activities in connection with labor disputes or labor
disturbances of any kind in industrial establishments which have Naval
contracts, either as prime contractors or subcontractors.
Appendix A (5)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00463R000100090012-3
Attorney General Jackson's opinion, printed in ho Op A. G. 45
(April 30, 1941), stated in part:
It is the position of this Mepartment, restated n'with
the approval of and at the direction of the President, that. all
Investigative reports are confidential documents of the execu-
tive department of the Government, to aid in the duty laid upon
the President by the Constitution to "take care that the laws
be faithfully executed," and that congressional or public access
to them 'would not be in the pUblic interest..."
"Dia-closure of the reports at this particular time would
also prejudice the national defense and be of aid and comfort
to the very subversive elements against which you wish to pro-
tect the country. For this reason we have made extraordinary
efforts to see that the results of countereapionage activities
end intelligence activities of this Department involving those
elements are kept within the fewest possible hands. A catalogue
of persons under investigation or suspicion, and what we know
about them, would be of inestimable service to foreign agencies;
and information which could be soused cannot be too closely guarded.
"Moreover*, disclosure of the reports would be of serious
prejudice to the future usefulness of the Federal bureau of
Investigation. As you probably know, much of this information
is given in confidence and can only be obtained upon pledge not
to disclose its scmrces. A disclosure of the sources would
embarrass informants--sometimes in their employment, sometimes
in their social relations, and in extreme eases eight even en-
danger their lives. We regard this keeping of faith with con-
fidential informants as an indispensable condition of future
efficiency." ho Op. A. G. 45, 46 47.
WISitOWilf4Pik
executive branch (to withhold con
-
upheld and respected by the
peatedly held that they will not
the executive to produce such pApers 'when in the
utive their production is contrary to the
rests. The courts have also held that the question
oduction of the papers would be against the
t is one for the executive and not for the courts
plo Op. A. G. 45 49)
ACC
ingly Jackson refused to divulge
sted information.
20, 1944 at the Bearing before the Select Committee
e FCC, the Director of the Federal Bureau of In -
led
on to testify, was sustained by the Committee
his claim of privilege not to testify as to certain mat
Appendix A (6)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-004L3R000100090012-3
Pres dent bs &recte4 him to rennin si
d to the Ccomittee Counsel that he interroga
tters. As to these, Mr'. Hoover still refused o
irman then pointedly ordered Mr. Hoover to never
him by the Counsel. Again Mr. Hoover obdurate17
ecord of the hearings is silent as to any action taken
following Mr. Hooverts refusal.
ial Committee on another occasion sought the pro-
and testimony from the various Beads of Depart -
tors a Agencies. On each occasion the Presideet or
or Heads of Departments exercised their own
ning the propriety of furnishing testimony? and
thereWhere vas refueal, the Committee thought it vise not
ese the tse.
In the autumu of i95 wben the tragedy of Pearl Harbor wa the
of 1egLBLtYe scrutiny tbe Joint Congressimal Coml. tee
ed to elicit rozu subpcensedvitnesses information regarding
tanalytic Unit. The President did everything possible to
investigation recognizing the public desire far fel and
discloeure. A minority of the committee believed that the
was impceing restraints on those vhom he allowed to appear.
t this vas true because the Preaideut quite evidently
assumed responsibility of guiding and directing the Heads of the
Departments eonce'rning the oral testimony and written material which
they were to furnish the Ccamittee. In so doing, Mr. Truman was
exercising historically precedented executive preregative.
In 1948 the House of Representatives passed Rouse Joint Resolution
342 directing all executive departments and agenciee of the Federal
Government to male available to any and all ccamittees of the House
of Representatives, and the Senate, any information which might be
deemed neceseary to enable them to properly perform the duties dele-
gated to tbem by the Congress. This resolution never came to a vote
Lu the Senate.
Append
(7)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00443R000100090012-3
B
SLWMARY CEIPAIN CASES INVOLVING
DIPIANATIC STATE AND MILITARY SECRETS
Marbury v,Madison. In the leading case of .rbury v. Madison, 1 Cranch
137 (203), the plaintiff, William Marbury, was seeking 'by mandamus to
compel Secretary of State James Madison to issue his commission as one
of John Adams' "midnight judges." Although the appointment bad been
made just prior to the assumption of the Presidency by Jefferson the
commission had not been issued by John Marshall, Madison's predecessor
as Secretary of State during the Adams' administration. Marshall, in the
meantime, bad become Chief. Justice of the United States and sat on the
case. The Attorney General was summoned for questioning and objected to
answering one question as to the disposition of the commission, attributing
his refusal to his obligation to the executive. The Court stated:
"By the constitution of the United States, the president
is invested with certain important political powers, in the
exercise of which he is to use his own discretion, and. is
accountable only to his country in his vaitical character, and
to his awn 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 sets. and whatever opinion may be
entertained of the manner in wLich executive discretion may
be used, still there exists, and can exist, no power to control
that discretion. The subjects are political: They respect
the nation, not individual rights, and being entrusted to the
executive, the decision of the executive is conclusive." I
Cranch 137, 164.
"Me province of the court is, solely, to decide on the
rights of individuals, not to inquire how the executive, or
executive officers, perform duties in which they have a dis-
cretion. Questions in their nature political, or which are,
by the constitution and laws submitted to the executive, can
never be made in this court." I Cranch 137, 170.
The court decided that if intrusion into cabinet records was not
involved, if the matter respected papers of public record and to a copy
of which the law gave a right on payment of a small amount, and if the
subject in issue was not one over which the executive can be considered
as exercising control, a citizen may, as to such a paper, assert the right
given him by an act of Congress. The court could issue a mandamus directing
performance of a ministerial duty not depending on administrative discretion
but =particular acts of Congress and the general principles of law.
Appendix 1)'
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00413R000100090012-3
ion prayed for, the court held that the Secretary
subject to the vrit of mandamus but denied the writ on
t the provision of the act of Congress giving the
sdiction under which the milt had been brought was
Onai.
1 of Thomas Cooper for seditious libel in theCircuit
Court o Pennsylvania in 1800 produce& a request for a subpoena to
issue irected against the Preeident of the United States, John
Adams, who was the person allegedly libelled. The court refused
to issue the subpoena and pemptorily informed the defendant that
if be undertook to ipublish a false libel against the President with-
out having proper evidence before him to justify his assertion, be
would do so at his risk. This appears to be the first recorded in-
stance of an effort to compel a President of the United States to
produce a document at a court trial.
In the famous trial of Aaron Burr in 1807, President Jefferson
was directed by a subpoena duces tecum to produce a certain letter
alleged to contain information helpful to the defense. Judge Marshall
allowed the subpoena stating that the President was not exempt per se
from process, although be was free to keep from disclosure such as
be deemed confidential. Marshall evidently overlooked the Chase
opinion in the Coop-der case. The Burr trial produced for the first
time judicial consi eration of the problem of official records being
subjected to public disclosure. Marshall's ruling has not been fol-
lowed by subsequent court decisions nor adhered to by the Presidents
themselves. Wrshall indicated that he believed the power of the
court fell short of direct compulsion of the President to produce.
Jefferson refused to acknowledge the subpoenaIdenying the right
of the judicial branch to order him as President to do aAything. The
letter requested was given by Jefferson to the Attorney General with
instructions to keep out of court so much as the U. S. Attorney
deemed confidential, Jefferson subsequently stated his fundamental
legal position as follows;
*St, of course, (the President) froa the nature of the
case,/ must be the sole judge of which at them the public inter-
est will permit pUblication. Hence, under our constitution, in
request of papers,/ from the legislative to the executive branch,
an exception is carefully expressed, as to those which he may
deem the public welfare may require not to be disclosed.*
Letter of June 171 1807 to 'U. S. Attorney Hay, Thomas Jefferson
Writings, (Ford)/ Volumn 9, Page 57.
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
to rssi8t by force
which Burr sought.
d either as to the President himse
d Navy, who also were directed personal
U.S.
lewd
with Presid
Confederate
S. The ease of Totten. Administrator v. U. S., 92
p involved an action for payment for services el -
been rendered by one William A. Lloyd under a contract
Lincoln. The services included travel behind the
ines for the purpose of ascertaining the number and
disposition of Confederate troops and the plans of Confederate forti
fications. Lloyd accomplished his mission with considerable success
and made full repasts of his findings to the Union authorities. The
Court of Claims found that the services were rendered as alleged and
that Lloyd was only reimbursed for his expenses. The Supreme Court
in denying recovery on the contract stated at page 106:
'The service stipulated by the contract was a secret serv-
ice.; the information sought was to be obtained clandestinely,
and was to be communicated privately; the employment end the
service were to be eqeally concealed. Both employee and agent
must have understood that the 240 of the other were to be
forever sealed respecting the relation of either to the matter.
The conditice of the engagement was implied from the nature of
the employmeut, and is implied in all secret employments of the
government in time of ear, or on matters affecting our foreign
relations, where a disclosure of the service might compromise
or embarrass our government In its public duties, or endanger
the person or injure the character of the agent."
The court vent on to say that secrecy was a condition or the
agreement and that the disclosure of the information necessary to
the maintenance of the action defeated recovery. The opinion con-
tinued at page 107
"It mey be stated as a general principle, that public
ds the maintenance of any suit in a court of justice, the
of which would inevitably lead to the disclosure of mat-
which the law regards as confidential, and respecting
it will not allow the confidence to be violated. On this
le, sults cannot be maintained which would require a dis
of the confidences of the confessional, or those be-
band and vitt, or of communications by & client to his
for professional advice or of a patient to his physician
ler purpose. Much greater reason exists for the ep
of the principle to capes of contract for secret serv-
the gemernment, as the existence of a contract of
is itself a fact not to be disclooed.w
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00463R000100090012-3
distinguished from a *milt
d occasion to consider an
ssing a complaint in which
by De Arnaud as a "unitary
tent duties" by.Deneral Fremon
De Arneud was a Russian, resident in t
rience as a Lieutenant of Engineers
1, Fremont had employed his to pass
s observe the order of battle, and report
resulted in the saving of Paducah, Kentucky. He
or his services on a receipt marked "for special
d to the U. S. Government in travelling through the
ty, Tennessee. . .which led to successful
was enpported by certificates from Generals
sident Lincoln ordered the claimpsid if just
tory of War paid De Arnaud $2000 which was
though the receipt acknowledged payment in
d instituted an action in the Court of
tyres*Court could recognize no distinction between "the
ces rendered in the Totten Case and the "military expert
which De Arnaud claimed to have rendered. 7be receipt
ud signed was considered to operate aa a bar to any
d. At page 490 of the opinion, the court stated:
ere have no jurisdiction to open up a settlement
Department from secret service funds and determine
s.
Atty. Gen. Speed. In 1865, Attorney General James Speed ad.
with regard to the Secretary of Navy's liability to
respond to individual or state requests for the production of exem..
Vaifiad copiee of military courts-martial records:
principles of public policy there are acme kinds of
which the law excludes or dispenses with. ,Secrets of
instance, cannot be given in evidence and those who
sed of such secrets are not required to maae disclosure
Official transactions between the heads of depart
Government and the subordinates are, in general
privileged communication.' The President of the
e heads of the great departments of the Government,
s of the several states, it has been decided,
produce papers or disclose information corn-
when, in their own judgment, the disclosure
public considerations, be expedient. These are famil
written down by every authority on the law of evi-
11 CP. A. G. 137, 142 (1865).
Appendix B (4)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-0040R000100090012-3
t. In the eaee
o4. 299 U. S. 304
termine the consti u and legality of an
ging violation of a joint resolution of Congress, and
a Pxeideutialproclemation issued pursuant thereto, which forbade
of arms or anmunition to foreiga nations engaged in
et in the Chaco. The case arose on a. demurrer to the
and in part challenged as an immproper delegation of gamer
cted scope of exeeutive action without adeqeate standards
the Congress. In gpeaking of the exclusive province of
utive in the area of intercourse with foreiga nations; the
COurt said at pages 319 and 320:
'Not only, as we have Shown, is be federal power
affairs in origin and essential character different
r internal affairs, but participation in the exercise of
is? significantly limited. In this vast external reale,
important, complicated, delicate and manifold problems,
sident alone has the power to speak or listen as a
representative of the nation. He allektreaties with the
advice and consent of the Senate; but healone uegotiates.
Into the field of negotiation the Senate cannot intrude; and
Congress itself is powerless to invade it."...
"It is suite Apparent that if, in the maintenance of our
international relations, embarrassment?perhaps serious ember-
rassment --is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through
negotiation and inquiry within the international field must
often accord to the President a degree of discretion and free-
dom free statutory restriction which would not be admissible
were domestic affairs alone involved. Moreover, be, not
Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true
in time of war. He has his confidential sources of information.
He has his agents in the form of diplometic, consular and
ether officials. Secrecy in respect of information gathered
by them may be highly necessary, and the premature disclosure
Of it productive of harmful results. Indeed, so clearly is this
true that the first President refused to accede to a request
to lay before the House of Representatives the instructions,
corregpondence and documents relating to the negotiation of the
Jay Treaty-ea refusal the vied= of which was recognized by the
Reuse itself and las never since been doubted. In his reply to
the reqeest, President Washington said:
Nature of foreign negotiations revires caution,
success must often depend on secrecy; and even
t toe conclusion a full disclosure of all the
emends, or eventual concessions which may have
Appendix B (5)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Release 1999/09/16 : CIA-RDP58-00483R000100090012-3
oposed or contemplated would be extremely impolitic,
might have a pernicious influence on future nee
e, or produce immediate inconveniences, perhaps
danger and nischief, in relation to other powers. The
necessity of such caution and secrecy was cne cogent rea-
son for vesting the power of maktug treaties in the Presi-
dent, vith the advice and consent of the Senate, the prin-
ciple on which that body was formed confining it to a maill
nvmber of meebers. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course
ell the papers respecting a negotiation with a fcreign
Inver would be to establish a dangerous precedent." 1
Messages an Papers of the Presidents, p. 194*
o & Semtbern v. Waterman SS. A nor* recent case has come down
om ttie I.I.Prene Court 40 the problem of the exclusive domain of the
executive. The ease of s e o arid Lines v.
Steamehie Cor9oratielf an ap
denial by the Cn1vt1 AeronautcBPeard of a certt?ieate of canyon
ence and necessity for an international air route to Waterman and
the award of the same to Chicago & Southern. The award could be
made only with the exprees approval of the President.
On this question, the court said:
The court below eonsidered, and we think quite r1ght17,
cauld not reviev such provisions of the order as re -
from Presidential direction. The President, both as
in-Chief and as the Ration's organ for foreign
s available intelligence services whose reports are
d ought not to be published to the world. /t would be
ble that courts, without the relevant information,
should review and perhaps nullify actions of the Executive
taken on information properly held secret. 'Nor can courts sit
in sja in order to be taken into executive confidences. But
en1Uourts could require full disclosure, the very nature
of executive decisions as to foreign policy its political, not
judicial. Such deciaions are wholly confided by our Constitw.
tion to the politics' departments of the Government, EXecutive
and legislative. They are delicate, complex, and involve large
elements of prophecy. They are and should be undertaken only
by those directly responsible to the people Whose welfare they
advance or imperil. They are decisions of a kind for which the
Judiciary-has neither aptitude, facilities nor responsibility
and have lceng been held to belong in the domain of political
power not subject to judicial intrusion or inquiry. Coleman v.
Miller, 307 US 4330 454 United States v. Curtiss.44rith?or-
poration, 299 US 2040 319-321; Oetjen v. Central Leather Co.,
246 US 297, 302. We therefore sgxee that vhatever of this order
emanates from the Preeldent is not susceptible of reviev by the
Judicial Department. 333 US 1030 111, 712.n
Appendix (6)
(6)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3
Approved For Re!use 1999/09/16 : CIA-RDP58-004a3R000100090012-3
that the Waternam'case V88 e 5J4 decision.
Notwiths d ill is good law today. .involves
a challenge to the educt of diplomatic and fceii affairB, or
which the Pre&Uent te exclusively responsible."
Eisentrager? 339 US 763 (1950), at page 789, cit Curtiss-
Wright and Waterman cases. "It is pertinent to obaerve that any
policy towards aliens is vitally and intricately interwoven with
contenworaneous policies lu regard to the conduct of foreign relations
the war power,. and the naintenauce of a republican form of govern-
went. Such matters are so exclusively entrusted to the pcaitical
branches of government as to be largely improe fram judicial in-
quiry or interference." Harisiades v. Shaughnessy, 342 US 5800 588
5890 (1952), again citingltho Curtiss-Wright aud Waterman cases.
See also United States v. Reynolds, 73 s. Ct. 528 (1953)
Append B (7)
Approved For Release 1999/09/16 : CIA-RDP58-00453R000100090012-3