B-143777, MAY 16, 1961

B-143777, MAY 16, 1961

TO THE SECRETARY OF STATE:

REFERENCE IS MADE TO OUR LETTERS OF DECEMBER 8 AND DECEMBER 13, 1960, B- 143777, TO THE FORMER SECRETARY OF STATE ADVISING HIM THAT SINCE CERTAIN DOCUMENTS RELATING TO THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER REQUESTED BY THE SUBCOMMITTEE ON FOREIGN OPERATIONS AND MONETARY AFFAIRS OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS WERE NOT FURNISHED, MUTUAL SECURITY PROGRAM FUNDS WERE NO LONGER AVAILABLE TO LIQUIDATE OBLIGATIONS INCURRED AFTER DECEMBER 9, 1960, WITH RESPECT TO OPERATIONS OF THAT OFFICE AND THAT ANY SUCH PAYMENTS WOULD BE DISALLOWED BY THIS OFFICE.

THE FORMER PRESIDENT, UPON ADVICE IN THE MATTER FROM HIS ATTORNEY GENERAL (OPINION DATED DECEMBER 19, 1960), DIRECTED THE SECRETARY ON DECEMBER 23, 1960, NOTWITHSTANDING OUR DETERMINATION, TO CAUSE TO BE CERTIFIED AND PRESENTED UNTIL JANUARY 20, 1961, VOUCHERS FOR THE PAYMENT OF THE EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER OUT OF MUTUAL SECURITY PROGRAM FUNDS. SUBSEQUENTLY, ON THE BASIS OF A REQUEST FROM THE PRESIDENT-ELECT FOR A REASONABLE TIME AFTER THE INAUGURATION TO STUDY THE PROBLEMS CREATED BY THE PRESIDENT'S DECISION TO WITHHOLD THE DOCUMENTS INVOLVED, THE CHAIRMAN OF THE SUBCOMMITTEE ADVISED YOU, BY LETTER OF JANUARY 3, 1961, THAT THE SUBCOMMITTEE'S REQUEST FOR THE DOCUMENTS WAS BEING WITHDRAWN AS OF JANUARY 20, 1961. BY LETTER OF JANUARY 18, 1961, WE WROTE TO THE FORMER SECRETARY STATING THAT IN VIEW OF THE FACT THAT OUR INSTRUCTIONS OF DECEMBER 13 WERE BASED UPON A REFUSAL TO FURNISH DOCUMENTS VALIDLY REQUESTED BY A DULY AUTHORIZED SUBCOMMITTEE OF THE CONGRESS AND SINCE THE REQUEST FOR THESE DOCUMENTS HAD BEEN WITHDRAWN AS OF JANUARY 20, 1961, NO OBJECTION WOULD BE MADE TO THE USE OF MUTUAL SECURITY FUNDS TO LIQUIDATE OBLIGATIONS FOR THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER INCURRED ON AND AFTER THAT DATE. IN OUR LETTER OF JANUARY 18, WE ALSO STATED THAT PAYMENTS MADE PRIOR TO JANUARY 20, 1961, WHICH WERE MADE ON THE BASIS OF THE PRESIDENTIAL DIRECTIVE OF DECEMBER 23 WERE RECEIVING FURTHER CONSIDERATION.

WE HAVE CAREFULLY REVIEWED THE OPINION OF THE FORMER ATTORNEY GENERAL UPON WHICH THE DIRECTIVE WAS BASED AND DO NOT FIND THEREIN ANY SOUND BASIS FOR ALTERING OUR PRIOR CONCLUSIONS IN THE MATTER. THE FORMER ATTORNEY GENERAL ARGUED THAT SECTION 533A (D) OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, DOES NOT AUTHORIZE THE FUNDS OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER TO BE CUT OFF AND THAT, IN ANY EVENT, SECTION 533A (D) WAS SUSPENDED BY SECTION 101 (D) OF THE MUTUAL SECURITY AND RELATED AGENCIES APPROPRIATION ACT, 1961, WHICH PROVIDES AUTHORITY FOR REFUSAL TO FURNISH INFORMATION UPON PRESIDENTIAL CERTIFICATION. OUR REASONS FOR REACHING CONTRARY CONCLUSIONS ARE FULLY SET FORTH IN OUR DECISION OF DECEMBER 8, 1960, AND WE SEE NO NEED TO AGAIN DETAIL THEM HERE. WE WOULD, HOWEVER, ADD A NOTE IN CONNECTION WITH THE FORMER ATTORNEY GENERAL'S REFERENCE TO SECTION 550 ON PAGE 13 OF HIS OPINION. SECTION 550 DEALS WITH REQUESTS FOR INFORMATION FROM INDIVIDUAL MEMBERS OF CONGRESS OR THE PUBLIC AT LARGE AND WITH INFORMATION IN SEMIANNUAL REPORTS TO THE CONGRESS WHICH ARE AVAILABLE TO THE PUBLIC AT LARGE, WHEREAS SECTION 533A (D) IS CONCERNED WITH REQUESTS FROM THE GENERAL ACCOUNTING OFFICE AND APPROPRIATE COMMITTEES AND DULY AUTHORIZED SUBCOMMITTEES OF THE CONGRESS. SEE ALSO 22 U.S.C. 1794 (B). THERE IS A SIGNIFICANT DIFFERENCE BETWEEN GENERAL REQUESTS FOR INFORMATION AS APPARENTLY CONTEMPLATED IN SECTION 550 AND INFORMATION REQUESTED BY OR FURNISHED TO DULY AUTHORIZED CONGRESSIONAL COMMITTEES OR THIS OFFICE, WHOSE INTERESTS IN SUCH INFORMATION DIRECTLY RELATES TO THE EXERCISE OF THEIR OFFICIAL DUTIES. THEREFORE, WE CANNOT AGREE THAT THE PROVISIONS OF SECTION 550 HAVE SUCH A RELATIONSHIP TO THOSE OF SECTION 533A (D) SO AS TO IMPORT AN INTENTION UNDERLYING THE LATTER SECTION CONTRARY TO ITS TERMS.

A FURTHER ARGUMENT WAS MADE THAT SECTION 533A (D) MUST NOT BE INTERPRETED TO REACH WHAT THE FORMER ATTORNEY GENERAL CONSIDERED AN UNCONSTITUTIONAL RESULT. RELYING UPON THE SO CALLED DOCTRINE OF EXECUTIVE PRIVILEGE, HE STATED THAT SINCE CONGRESS CANNOT BY DIRECT ACTION COMPEL THE PRESIDENT TO FURNISH TO IT INFORMATION THE DISCLOSURE OF WHICH HE CONSIDERS CONTRARY TO THE NATIONAL INTEREST, IT CANNOT ACHIEVE THIS RESULT INDIRECTLY BY PLACING A CONDITION UPON THE EXPENDITURE OF APPROPRIATED FUNDS. A NUMBER OF CASES WERE CITED IN SUPPORT OF THIS CONTENTION. WITHOUT GOING INTO GREAT DETAIL, WE WOULD POINT OUT THAT NONE OF THE CASES RELIED UPON IS APPLICABLE FOUR SQUARE TO THE SITUATION CONSIDERED IN OUR DECISION. EACH OF THE CITED CASES DEALS WITH AN ATTEMPT ON THE PART OF THE LEGISLATURE TO DENY CONSTITUTIONAL RIGHTS WHEREAS SUCH IS NOT THE CASE IN THE INSTANT SITUATION. ASSUMING, ARGUENDO, THAT A CASE FOR THE EXISTENCE OF EXECUTIVE PRIVILEGE COULD BE PROPERLY MADE, THE PROVISO TO SECTION 533A (D) DOES NOT PURPORT TO DENY THE PRIVILEGE. THERE IS NOTHING IN THAT SECTION TO PRECLUDE EXERCISE OF THE PRIVILEGE. AS SUGGESTED AT PAGE 21 OF THE OPINION OF THE FORMER ATTORNEY GENERAL, CONGRESS COULD REFUSE TO APPROPRIATE ANY FUNDS TO IMPLEMENT PARTICULAR LEGISLATION. AND IT COULD REFUSE TO APPROPRIATE BECAUSE IT WAS NOT IN SYMPATHY WITH THE EXECUTIVE RESORT TO PRIVILEGE IN CONNECTION WITH REFUSAL TO FURNISH INFORMATION TO THE CONGRESS. NOR WOULD THERE APPEAR TO BE ANY DOUBT BUT THAT THE CONGRESS AT ANY MOMENT COULD LEGISLATE TO WITHDRAW APPROPRIATIONS AVAILABLE FOR OPERATING THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER. WE, THEREFORE, FAIL TO SEE WHY AN ACT OF CONGRESS WHICH STIPULATES UPON WHAT CONDITIONS THE APPROPRIATION FOR THAT OFFICE IS TO REMAIN AVAILABLE AND WHICH DOES NOT PRECLUDE THE EXECUTIVE FROM EXERCISING ITS ALLEGED CONSTITUTIONAL PREROGATIVES MUST BE CONSIDERED AN UNCONSTITUTIONAL ACT OR OF SUCH DOUBTFUL CONSTITUTIONALITY AS TO BE DISREGARDED. BUT, IN ANY EVENT, IT IS CLEAR THAT SUCH CONSTITUTIONAL QUESTIONS AS ARE RAISED IN THE MATTER HAVE NOT BEEN DEFINITELY DETERMINED IN THE COURTS. CONSEQUENTLY, WE REMAIN OF THE OPINION THAT IT IS THE RESPONSIBILITY OF THIS OFFICE TO CARRY OUT A CONGRESSIONAL MANDATE UNLESS A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT MANDATE TO BE UNCONSTITUTIONAL.

IN ADDITION, WE DO NOT REGARD THE ACTION OF THE FORMER PRESIDENT, WHETHER BASED ON AN ADVISORY OPINION OF THE FORMER ATTORNEY GENERAL OR OTHERWISE, AS AFFECTING THE ACTION WHICH THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED TO TAKE IN SETTLING THE ACCOUNTS OF THE DEPARTMENTS, WHICH ACTION IS BY LAW FINAL AND CONCLUSIVE ON THE EXECUTIVE ESTABLISHMENT. SEE 31 U.S.C. 74.

WE UNDERSTAND THAT THERE HAS BEEN ESTABLISHED A WORKABLE ARRANGEMENT BETWEEN YOUR DEPARTMENT AND THE SUBCOMMITTEE ON FOREIGN OPERATIONS AND MONETARY AFFAIRS CONCERNING THE ACCESS TO INFORMATION REQUESTED BY THE SUBCOMMITTEE. SEE CONGRESSIONAL RECORD OF APRIL 17, 1961, PAGES 5658 5662. IN VIEW OF THIS ARRANGEMENT WE WILL TAKE NO FURTHER ACTION WITH RESPECT TO THE PERIOD PRIOR TO JANUARY 20, 1961, DURING WHICH MUTUAL SECURITY PROGRAM FUNDS WERE UTILIZED IN CONTRAVENTION OF OUR PRIOR INSTRUCTIONS.

COPIES OF THIS LETTER ARE BEING SENT TO THE ATTORNEY GENERAL, THE SECRETARY OF THE TREASURY, AND THE CHAIRMAN OF THE SUBCOMMITTEE ON FOREIGN OPERATIONS AND MONETARY AFFAIRS OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS.