A-5574, APRIL 17, 1925, 4 COMP. GEN. 860

A-5574: Apr 17, 1925

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TELEGRAMS - CONFIDENTIAL MESSAGES IN CODE VOUCHERS FOR TELEGRAPH SERVICES FURNISHED BY A FOREIGN GOVERNMENT IN TRANSMITTING ALLEGED CONFIDENTIAL MESSAGES IN CODE MAY NOT BE PASSED BY THE GENERAL ACCOUNTING OFFICE UPON A BLANKET CERTIFICATION THAT THEY WERE CONFIDENTIAL. THERE IS FOR CONSIDERATION THE QUESTION WHETHER ALL TELEGRAMS HAVING THEIR ORIGIN IN MATTERS STYLED "FOREIGN INTERCOURSE" ARE IPSO FACTO CONFIDENTIAL MESSAGES IN THE SENSE THAT THEY ARE NOT REQUIRED TO BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE WITH VOUCHERS IN SUPPORT OF PAYMENT OF THE SERVICE RENDERED BY THE TELEGRAPH OR CABLE COMPANY. THERE IS CHARGED TO "CONTINGENT EXPENSES. TELEPHONES OF THE FRENCH REPUBLIC FOR WHAT IS STATED AS "OFFICIAL" TELEGRAMS SENT DURING THE MONTHS OF JANUARY.

A-5574, APRIL 17, 1925, 4 COMP. GEN. 860

TELEGRAMS - CONFIDENTIAL MESSAGES IN CODE VOUCHERS FOR TELEGRAPH SERVICES FURNISHED BY A FOREIGN GOVERNMENT IN TRANSMITTING ALLEGED CONFIDENTIAL MESSAGES IN CODE MAY NOT BE PASSED BY THE GENERAL ACCOUNTING OFFICE UPON A BLANKET CERTIFICATION THAT THEY WERE CONFIDENTIAL, BUT COPIES OF THE TELEGRAMS IN CODE AND UNTRANSLATED MUST BE SUBMITTED IN SUPPORT OF THE ACCOUNT.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 17, 1925:

IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF HERBERT P. MIDDLETON, SPECIAL DISBURSING OFFICER, DEPARTMENT OF STATE, STATIONED AT THE AMERICAN EMBASSY, PARIS, FRANCE, THERE IS FOR CONSIDERATION THE QUESTION WHETHER ALL TELEGRAMS HAVING THEIR ORIGIN IN MATTERS STYLED "FOREIGN INTERCOURSE" ARE IPSO FACTO CONFIDENTIAL MESSAGES IN THE SENSE THAT THEY ARE NOT REQUIRED TO BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE WITH VOUCHERS IN SUPPORT OF PAYMENT OF THE SERVICE RENDERED BY THE TELEGRAPH OR CABLE COMPANY.

IN THE MARCH, 1924, QUARTER, VOUCHER 9, THERE IS CHARGED TO "CONTINGENT EXPENSES, FOREIGN MISSIONS, 1924," THE SUM OF $4,206.26 PAID TO THE MINISTRY OF POSTES, TELEGRAPHES, AND TELEPHONES OF THE FRENCH REPUBLIC FOR WHAT IS STATED AS "OFFICIAL" TELEGRAMS SENT DURING THE MONTHS OF JANUARY, FEBRUARY, AND MARCH THROUGH THE PRIVATE BRANCH TELEGRAPH OFFICE LOCATED IN THE CHANCERY OF THE AMERICAN EMBASSY. A VOUCHER, NO. 9, IN THE JUNE QUARTER PAYS $5,684.18 FOR LIKE SERVICE UNDER SIMILAR CIRCUMSTANCES.

WHILE THESE TWO VOUCHERS CLAIM CREDIT FOR DISBURSEMENTS IN THE SUM OF $9,890.44, THEY ARE UNSUPPORTED BY THE ORIGINALS OR EVEN COPIES OF THE TELEGRAMS SENT BY WHICH THIS OFFICE MAY EXERCISE ITS PROPER FUNCTION IN DECIDING AS TO THE AMOUNT AND PROPRIETY OF SUCH A CHARGE UPON THE PUBLIC FUNDS. IN LIEU OF SUCH TELEGRAMS THERE IS A CERTIFICATE ATTACHED TO EACH VOUCHER SIGNED FOR THE AMBASSADOR BY SHELDON WHITEHOUSE, COUNSELOR OF EMBASSY, STATING THAT---

I CERTIFY THAT THE TELEGRAMS CHARGED IN THE FOREGOING ACCOUNT, WITH THE EXCEPTION OF THOSE FOR WHICH REIMBURSEMENT HAS BEEN MADE (AND WHICH ARE MARKED "P" IN THE ACCOMPANY ITEMIZED LISTS), ARE OFFICIAL AND IN CONNECTION WITH FOREIGN INTERCOURSE.

IN REFERENCE TO THIS METHOD OF SUBMITTING A PUBLIC VOUCHER AS EVIDENCE OF A VALID DISBURSEMENT, A LETTER FROM THE SECRETARY OF STATE DATED SEPTEMBER 9, 1924, STATES IN PART, THAT---

YOU WILL FIND THAT ON THE RECAPITULATION OF EXPENDITURES FOR TELEGRAMS IN THE ACCOUNTS OF MR. MIDDLETON FOR THE MARCH QUARTER THERE IS A CERTIFICATE SIGNED BY SHELDON WHITEHOUSE, COUNSELOR OF EMBASSY, GIVING FULL INFORMATION AS TO THE TELEGRAMS PERTAINING TO FOREIGN INTERCOURSE, AND ALL ACCOUNTS RENDERED BY MR. MIDDLETON HAVE BEEN SUPPORTED IN THE SAME WAY.

ACCOMPANYING THE FILES PERTAINING TO THIS MATTER IS A COPY OF A CIRCULAR OF THE DEPARTMENT OF STATE, NO. 901,"GENERAL INSTRUCTIONS, CONSULAR (DIPLOMATIC SER. 203)," DATED JUNE 27, 1923, WHICH IN PART DIRECTS AS FOLLOWS:

ALL ENTRIES OF DISBURSEMENTS FOR TELEGRAMS AND CABLEGRAMS SHOULD BE SUPPORTED BY (1) THE USUAL RECEIPT OR RECEIPTS FROM THE TELEGRAPH COMPANY FOR PAYMENTS MADE TO IT; (2) BY FORM NO. 250, ENTITLED,"SCHEDULE OF TELEGRAMS AND CABLEGRAMS, FOREIGN SERVICE," SHOWING THE DATE, NUMBER, ADDRESSEE, DESTINATION, NUMBER OF WORDS, RATE PER WORK IN FOREIGN CURRENCY, AND THE TOTAL CHARGE IN FOREIGN CURRENCY AND THE EQUIVALENT IN UNITED STATES CURRENCY, IN RELATION TO EACH MESSAGE SENT DURING THE PERIOD COVERED BY THE ACCOUNT, THE DATE OF WHICH SHOULD CORRESPOND WITH THE RECEIPT OR RECEIPTS FROM THE TELEGRAPH COMPANY WITH RESPECT TO AMOUNTS AND ESSENTIAL FACTS; AND (3) TRUE COPIES OF THE TRANSMITTED TEXT WHETHER PLAIN OR IN CIPHER, OF ALL TELEGRAMS AND CABLEGRAMS FOR WHICH PAYMENT HAS BEEN MADE.

THE RECEIPT OR RECEIPTS OF THE TELEGRAPH COMPANY COVERING THE CHARGE FOR TELEGRAMS IN CONFIDENTIAL CIPHER AND PERTAINING TO FOREIGN INTERCOURSE SHOULD BE INDORSED WITH THE WORDS ,FOREIGN INTERCOURSE," FOLLOWED BY THE INITIALS OF THE RESPONSIBLE DIPLOMATIC OR CONSULAR OFFICER, AND PRECISELY THE SAME TREATMENT SHOULD BE GIVEN TO THE COPIES OF SAID TELEGRAMS. COPIES OF TELEGRAMS SENT IN COMMERCIAL CODES WILL NOT BE SO INDORSED AND WILL BE ACCOMPANIED BY TRANSLATIONS. THE COPIES OF TELEGRAMS INDORSED "FOREIGN INTERCOURSE" WILL BE RETAINED IN THE CONFIDENTIAL FILES OF THE DEPARTMENT, WHILE THE COPIES AND TRANSLATIONS OF TELEGRAMS NOT SENT IN CONFIDENTIAL CODE BUT PLAIN OR COMMERCIAL CODE, AND NOT PERTAINING TO FOREIGN INTERCOURSE, WILL BE TRANSMITTED BY THE DEPARTMENT TO THE GENERAL ACCOUNTING OFFICE AS PART OF THE ACCOUNTS TO WHICH THEY RELATE. IT WILL BE APPARENT, THEREFORE, THAT GREAT CARE MUST BE EXERCISED IN APPROPRIATELY INDORSING RECEIPTS OF THE TELEGRAPH COMPANIES AND COPIES OF THE CIPHER TEXT OF TELEGRAMS PERTAINING TO FOREIGN INTERCOURSE.

THE TENOR OF THESE DIRECTIONS, AND THE ACTION IN CONSEQUENCE THEREOF, IS TO DETERMINE ALL TELEGRAMS INDORSED "FOREIGN INTERCOURSE" AS CONFIDENTIAL, AND TO REQUIRE THEIR WITHDRAWAL WITHOUT EXCEPTION FROM THE ACCOUNTS AS SUBMITTED FOR PAYMENT, AND SECURE THEIR RETENTION IN THE ARCHIVES OF THE STATE DEPARTMENT, OR THE DIPLOMATIC OFFICES THEREOF, LEAVING ONLY A CERTIFIED SCHEDULE OF TELEGRAMS THUS PURPORTING TO BE CONFIDENTIAL FOR SUBMISSION TO THIS OFFICE FOR ITS AUDIT.

IT APPEARS THAT ALL OF THE TELEGRAMS IN QUESTION WERE TRANSMITTED BY THE FRENCH GOVERNMENT OVER TELEGRAPH LINES UNDER ITS CONTROL, AND ITS BILL THEREFOR, SUPPORTED BY COPIES OF THE TELEGRAMS THUS SENT, WAS SUBMITTED TO THE EMBASSY FOR PAYMENT, AND IT IS THEREAFTER THAT THEY ARE WITHDRAWN FROM THE ACCOUNTS AND RETAINED BECAUSE OF BEING TOO CONFIDENTIAL IN NATURE TO PERMIT OF THEIR ACCOMPANYING THE ACCOUNT TO THE GENERAL ACCOUNTING OFFICE FOR AUDIT. WE THUS HAVE THE SITUATION WHERE THE AGENCIES OF A FOREIGN GOVERNMENT RECEIVE AND TRANSMIT A CONFIDENTIAL MESSAGE OF THE UNITED STATES, FURNISH A COPY OF THE MESSAGE TO ONE AGENCY OF THE UNITED STATES AS PROPER EVIDENCE UPON WHICH IT SHALL MAKE PAYMENT, AND YET ANOTHER AGENCY OF THE UNITED STATES MAY NOT BE INTRUSTED WITH SUCH COPY, PRESUMABLY IN A SECRET CODE, FOR THE SIMILAR PURPOSE OF HAVING PROPER EVIDENCE UPON WHICH IT MAY EXERCISE ITS FUNCTION OF OFFICE. THE REASON FOR THUS EXCLUDING THE ACCOUNTING OFFICE OF THIS GOVERNMENT IS NOT UNDERSTOOD.

IN VIEW OF THE CONDITIONS WHICH CAN BE FAIRLY ASSUMED TO EXIST, THIS OFFICE IS NOT JUSTIFIED IN PASSING ACCOUNTS COVERING EXPENDITURES TO THE AMOUNTS INDICATED ABOVE UPON SUCH A BLANKET CERTIFICATION. THERE APPEARS NO REASON WHY A COPY OF THE MESSAGES IN CODE AS SUBMITTED TO THE FOREIGN SENDING AGENCY MAY NOT BE SUBMITTED WITH THE ACCOUNTS TO THIS OFFICE, THE COPY TO BE UNTRANSLATED. THE FACT THAT PERSONAL MESSAGES ARE SAID TO BE INVOLVED WHICH WOULD DISCLOSE THE CODE IF TRANSLATED, SUGGESTS THAT PERSONAL MESSAGES SHOULD NOT BE PERMITTED IN SUCH SECRET CODE RATHER THAN REQUIRE THIS OFFICE NOT TO RECEIVE PROPER ACCOUNTING. ACCORDINGLY IT IS REQUIRED THAT THE USUAL COPIES OF TELEGRAMS BE SUBMITTED FOR USE IN AUDITING THESE AND LIKE PAYMENTS BEFORE CREDIT MAY BE ALLOWED FOR THE EXPENDITURES. THIS RULING ACCORDS WITH LIKE HOLDINGS OF FORMER COMPTROLLERS. 4 COMP. DEC. 233; 7 ID. 528.