B-107919, JUNE 4, 1952, 31 COMP. GEN. 629

B-107919: Jun 4, 1952

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TRANSPORTATION - LAND-GRANT DEDUCTIONS - PROPERTY FOR MILITARY USE - SUPPLIES DISTRIBUTED IN LIBERATED OR OCCUPIED AREAS SUPPLIES PROCURED AND SHIPPED BY THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) WHICH WERE INTENDED FOR DISTRIBUTION TO AND CONSUMPTION BY THE CIVILIAN POPULATION IN LIBERATED OR OCCUPIED AREAS ARE TO BE CONSIDERED AS SHIPMENTS OF MILITARY PROPERTY MOVING FOR MILITARY USE WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940. SAID SUPPLIES ARE SUBJECT TO LAND-GRANT DEDUCTIONS. 1952: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. WERE SHIPMENTS OF MILITARY PROPERTY MOVING FOR MILITARY USE WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940.

B-107919, JUNE 4, 1952, 31 COMP. GEN. 629

TRANSPORTATION - LAND-GRANT DEDUCTIONS - PROPERTY FOR MILITARY USE - SUPPLIES DISTRIBUTED IN LIBERATED OR OCCUPIED AREAS SUPPLIES PROCURED AND SHIPPED BY THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) WHICH WERE INTENDED FOR DISTRIBUTION TO AND CONSUMPTION BY THE CIVILIAN POPULATION IN LIBERATED OR OCCUPIED AREAS ARE TO BE CONSIDERED AS SHIPMENTS OF MILITARY PROPERTY MOVING FOR MILITARY USE WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, AND THEREFORE, SAID SUPPLIES ARE SUBJECT TO LAND-GRANT DEDUCTIONS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JUNE 4, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1952, REQUESTING A DECISION BY THIS OFFICE AS TO WHETHER CERTAIN RAIL SHIPMENTS OF SUPPLIES, DESTINED FOR OVERSEAS, PROCURED AND SHIPPED BY THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), DURING THE PERIOD 1943 TO OCTOBER 1, 1946, AND INTENDED FOR DISTRIBUTION TO AND CONSUMPTION BY THE CIVILIAN POPULATION IN LIBERATED OR OCCUPIED AREAS, WERE SHIPMENTS OF MILITARY PROPERTY MOVING FOR MILITARY USE WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, 954. THE SCOPE OF YOUR TRANSMITTAL IS RESTRICTED TO ONLY SUCH SUPPLIES AS WERE PROCURED AND SHIPPED BY YOUR DEPARTMENT, AND THE ONLY QUESTION APPEARS TO BE WHETHER SUCH PROPERTY WAS MOVING FOR MILITARY USE WITHIN THE MEANING OF THE CITED STATUTE.

AS INDICATED IN YOUR LETTER, THE BILLS OF LADING COVERING THE RAIL SHIPMENTS HERE CONCERNED BORE THE MARKINGS " TOG," " SHAEF," " SCAEF," OR " USFET.' AN EXAMINATION OF VARIOUS ARMY SERVICES FORCES CIRCULARS (FOR EXAMPLE, NO. 363, NOVEMBER 3, 1944, COVERING " TOG; " NO. 154, APRIL 30, 1945, CONCERNING " SCAEF; " NO. 279, JULY 21, 1945, CONCERNING " USFET") INDICATES THAT THESE CODE DESIGNATIONS WERE USED TO IDENTIFY SHIPMENTS OF SUPPLIES DESTINED FOR DISTRIBUTION TO CIVILIANS IN LIBERATED AND OCCUPIED AREAS, SUCH DISTRIBUTION TO BE EFFECTED BY MILITARY FORCES OPERATING UNDER UNITED STATES COMMANDS (" TOG," " USFET") OR SUPREME COMMAND OR SUPREME HEADQUARTERS, ALLIED EXPEDITIONARY FORCES (" SCAEF," " SHAEF"). CIRCULAR NO. 363, HAVING TO DO WITH SHIPMENTS MARKED " TOG," COVERS CIVILIAN SUPPLIES SHIPPED TO THE COMMANDING GENERAL OF A UNITED STATES ARMY FORCE IN AN OVERSEAS THEATER. IT PROVIDES:

* * * THIS CIRCULAR ESTABLISHES THE PROCEDURE FOR THE SHIPMENT OF CIVILIAN SUPPLIES TO THE COMMANDING GENERAL OF A U.S. ARMY FORCE IN AN OVERSEA THEATER. CIVILIAN SUPPLIES WITHIN THE SCOPE OF THIS CIRCULAR ARE THOSE GOODS AND COMMODITIES, EXCLUDING BARTER AND LEND-LEASE ITEMS, MADE AVAILABLE IN CONFORMITY WITH MILITARY NECESSITY TO THE CIVILIAN POPULATIONS IN AREAS LIBERATED OR OCCUPIED BY U.S. OR ALLIED MILITARY FORCES. SUCH SUPPLIES ARE REQUISITIONED BY U.S. ARMY COMMANDERS THROUGH NORMAL ARMY SUPPLY CHANNELS ON THE BASIS OF ESTABLISHED PROGRAMS FORMULATED BETWEEN THEATERS OF OPERATIONS AND THE COMBINED CIVIL AFFAIRS, COMMITTEE, OR, IN THE CASE OF OPERATIONS WHICH ARE NOT OF A COMBINED NATURE, ON THE BASIS OF PROGRAMS FORMULATED BETWEEN U.S. ARMY COMMANDERS AND THE WAR DEPARTMENT.

SIMILARLY, CIRCULAR NO. 154 PERTAINS TO SHIPMENTS FOR DISTRIBUTION BY BRITISH ARMY GROUPS AND PROVIDES THAT---

* * * THE BRITISH GOVERNMENT WILL ARRANGE FOR THE OCEAN TRANSPORTATION OF SUPPLIES PROCURED BY THE UNITED STATES WHICH ARE TO BE DISTRIBUTED TO CIVILIAN POPULATIONS IN OCCUPIED TERRITORIES BY BRITISH ARMY GROUPS OPERATING UNDER THE SUPREME COMMANDER, ALLIED EXPEDITIONARY FORCES. EFFECTIVE IMMEDIATELY, SUPPLIES PROVIDED BY THE ARMY SERVICE FORCES IN ACCORDANCE WITH THIS ARRANGEMENT WILL BE MADE AVAILABLE AND SHIPPED AS PRESCRIBED HEREIN. THIS CIRCULAR DOES NOT GOVERN SHIPMENTS BY THE U.S. WAR DEPARTMENT OF SUPPLIES FOR DISTRIBUTION TO CIVILIAN POPULATIONS UNDER CONDITIONS OTHER THAN THOSE DESCRIBED ABOVE. MATERIALS PROVIDED UNDER THIS PROCEDURE ARE NOT LEND LEASE MATERIALS.

AND LIKEWISE CIRCULAR NO. 279, PROVIDES IN PARAGRAPH VI, 2, 1, THAT- -

* * * THE BRITISH GOVERNMENT WILL ARRANGE FOR THE OCEAN TRANSPORTATION OF SUPPLIES PROCURED BY THE UNITED STATES WHICH ARE TO BE CONSIGNED TO THE COMMANDING GENERAL, US FORCES, EUROPEAN THEATER, FOR DISTRIBUTION AT HIS DISCRETION BY BRITISH ARMY GROUPS TO CIVILIAN POPULATIONS IN OCCUPIED TERRITORIES. EFFECTIVE IMMEDIATELY, SUPPLIES PROVIDED BY THE ARMY SERVICE FORCES IN ACCORDANCE WITH THIS ARRANGEMENT WILL BE MADE AVAILABLE AND SHIPPED AS PRESCRIBED HEREIN. THIS CIRCULAR DOES NOT GOVERN SHIPMENTS BY THE U.S. WAR DEPARTMENT OF SUPPLIES FOR DISTRIBUTION TO CIVILIAN POPULATIONS UNDER CONDITIONS OTHER THAN THOSE DESCRIBED ABOVE. MATERIALS PROVIDED UNDER THIS PROCEDURE ARE NOT LEND-LEASE MATERIALS.

THE CIRCUMSTANCE THAT THE SUPPLIES WERE INTENDED IN SOME INSTANCES FOR DISTRIBUTION BY THE MILITARY FORCES OF THE BRITISH GOVERNMENT RATHER THAN BY THE MILITARY FORCES OF THE UNITED STATES WOULD NOT OPERATE TO DEFEAT THE REQUIREMENTS FOR DEDUCTION FOR LAND GRANT. SEE SOUTHERN PACIFIC COMPANY V. UNITED STATES, 107 C.1CLS. 167, 176. THE CODE DESIGNATIONS, THEREFORE, ESTABLISH THE SPECIFIC USE FOR WHICH THE MATERIAL WAS INTENDED AT THE TIME OF SHIPMENT AND, IF THAT INTENDED USE WAS OF A MILITARY NATURE, THE ACTUAL ULTIMATE USE OF THE PROPERTY DOES NOT APPEAR TO BE MATERIAL TO THE DETERMINATION OF THE QUESTION OF WHETHER THIS PROPERTY WAS MILITARY PROPERTY MOVING FOR MILITARY USE INASMUCH AS IT HAS BEEN HELD THAT IT IS THE NATURE AND CHARACTER OF THE SHIPMENT AT THE TIME IT IS TENDERED FOR CARRIAGE THAT DETERMINES ITS MILITARY OR CIVIL STATUS WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940. NORTHERN PACIFIC RY. CO. V. UNITED STATES, 101 F.1SUPP. 29. SEE ALSO SONKEN-GALAMBA CORP. V. UNION PACIFIC R. CO., 145 F.2D 808, CITED THEREIN.

INVASION AND OCCUPATION ARE INCIDENTS OF WAR AND A TERRITORY IS CONSIDERED OCCUPIED WHEN IT IS ACTUALLY PLACED UNDER THE AUTHORITY OF A HOSTILE ARMY. ARTICLE 42, HAGUE CONVENTION OF 1907, 36 STAT. ( PART 2) 2306. THE AUTHORITY OF THE LEGITIMATE POWER HAVING ACTUALLY PASSED INTO THE HANDS OF THE OCCUPANT, THE LATTER MUST TAKE ALL STEPS IN HIS POWER TO ESTABLISH AND INSURE, AS FAR AS POSSIBLE, PUBLIC ORDER AND SAFETY, WHILE RESPECTING, UNLESS ABSOLUTELY PREVENTED, THE LAWS IN FORCE IN THE COUNTRY. ARTICLE 43, HAGUE CONVENTION OF 1907, 36 STAT. 2306, SUPRA. THUS, IT IS APPARENT THAT THE MAINTENANCE OF MINIMUM LIVING STANDARDS COMMENSURATE WITH PUBLIC ORDER AND SAFETY IS A MILITARY DUTY REQUIRED OF AN OCCUPYING POWER BY INTERNATIONAL LAW. IN THE CASE OF LIBERATED AREAS, DURING AND IN THE WAKE OF COMBAT OPERATIONS, IT WOULD SEEM SELF-EVIDENT THAT CARE OF LIBERATED POPULATIONS WOULD NECESSARILY BE REQUIRED IN SUFFICIENT DEGREE TO PREVENT DISEASE AND PUBLIC DISORDER, AND TO INSURE THE SAFETY OF TROOPS AND SUPPLY LINES.

FROM THE DETAILED AND DOCUMENTED HISTORY OF THE MILITARY CIVILIAN SUPPLY PROGRAM DESCRIBED IN PART III OF " A GUIDE TO INTERNATIONAL SUPPLY," PUBLISHED DECEMBER 31, 1945, BY THE INTERNATIONAL DIVISION HEADQUARTERS, ARMY SERVICE FORCES, WAR DEPARTMENT, IT APPEARS THAT RESPONSIBILITY FOR PROCUREMENT OF RELIEF SUPPLIES FOR CIVIL POPULATIONS IN LIBERATED AREAS WAS UNDER MILITARY CONTROL AND SUBJECT TO THE DISCRETION OF THEATER COMMANDERS. IN DISCUSSING THE MILITARY DECISION TO ASSUME COMPLETE RESPONSIBILITY FOR CIVILIAN SUPPLY IN THE EARLY DAYS OF THE NORTH AFRICAN CAMPAIGN, THE PUBLICATION STATES, AT PAGE 89:

* * * BY INTERNATIONAL LAW AND BY MILITARY NECESSITY THE THEATER COMMANDER OF AN AREA WAS RESPONSIBLE FOR THE SECURITY AND CONTROL OF POPULATIONS FALLING WITHIN HIS LINES. CONSEQUENTLY THE WAR DEPARTMENT WAS UNDER A RESPONSIBILITY, SUBJECT TO THE DIRECTION OF THE PRESIDENT AS COMMANDER-IN-1CHIEF, TO SUPPORT THE THEATER COMMANDER IN THE DISCHARGE OF HIS DUTIES. ACCORDINGLY, WHEN THE THEATER COMMANDER BEGAN TO SUBMIT REQUESTS FOR CIVILIAN SUPPLIES SHORTLY AFTER THE LANDINGS, AND WHEN AT THE END OF DECEMBER BY COMMAND DECISION A CIVILIAN SUPPLY PROGRAM OF 30,000 TONS A MONTH WAS ESTABLISHED AS A PRIORITY ON THE USE OF BROKEN STOWAGE AND BALLAST SPACE ON MILITARY TRANSPORTS, THE MILITARY OF NECESSITY MOVED INTO THE PICTURE BOTH AS THE TRANSPORTER AND HANDLER OF SUCH SUPPLY AND FREQUENTLY AS THE SUPPLIER AS WELL TO MAKE GOOD SHORT OR LATE DELIVERIES TO PORTS.

AND AT PAGE 90:

A FIRST STEP TOWARD UNIFICATION UNDER THE MILITARY OF THE DISPERSED RESPONSIBILITIES FOR CIVILIAN SUPPLY WAS TAKEN TOWARD THE END OF FEBRUARY 1943 AS PREPARATIONS FOR THE TUNISIAN CAMPAIGN CAME TO A HEAD. AT THAT TIME A CABLE WAS DISPATCHED TO GENERAL EISENHOWER WITH THE KNOWLEDGE OF THE CIVILIAN AGENCIES * * * STATING THAT IN VIEW OF THE FACT THAT ALL TRANSPORT AND SUPPLY INTO TUNISIA DURING THE INITIAL STAGES OF OCCUPATION WOULD BE SO INTIMATELY LINKED TO MILITARY OPERATIONS, CIVILIAN SUPPLY ACTIVITIES SHOULD BE THE SOLE RESPONSIBILITY OF THE MILITARY, ADMINISTERED BY MILITARY PERSONNEL AND SERVICES, AND ADVANCE-PLANNED BY THE MILITARY ON THE GROUND.

AND AT PAGE 91:

WHILE THIS DECISION (FOR THE MILITARY TO ASSUME RESPONSIBILITY FOR ALL PHASES OF CIVILIAN SUPPLY) AFFECTED ONLY ARRANGEMENT IN THE THEATER IT WAS OF IMPORTANCE IN THAT IT WAS THE FIRST STEP TAKEN BY THE MILITARY BASED ON A RECOGNITION OF THE INDIVISIBILITY OF RESPONSIBILITY FOR COMBAT OPERATIONS AND TRANQUILLITY BEHIND THE LINES WITH THE CONSEQUENT NEED TO INTEGRATE AND CONTROL SUPPLY MOVEMENTS FOR BOTH PURPOSES. * * *

IN NOVEMBER, 1943, THE RESPONSIBILITY FOR ALL PHASES OF THE CIVILIAN SUPPLY PROGRAM IN ALL THEATERS WAS PLACED UPON THE WAR DEPARTMENT. THE PRESIDENT OF THE UNITED STATES WROTE THE SECRETARY OF WAR:

ALTHOUGH OTHER AGENCIES OF THE GOVERNMENT ARE PREPARING THEMSELVES FOR THE WORK THAT MUST BE DONE IN CONNECTION WITH THE RELIEF AND REHABILITATION OF LIBERATED AREAS, IT IS QUITE APPARENT IF PROMPT RESULTS ARE TO BE OBTAINED THE ARMY WILL HAVE TO ASSUME THE INITIAL BURDEN OF SHIPPING AND DISTRIBUTING RELIEF SUPPLIES. THIS WILL NOT ONLY BE THE CASE IN THE EVENT THAT ACTIVE MILITARY OPERATIONS ARE UNDER WAY, BUT ALSO IN THE EVENT OF A GERMAN COLLAPSE. I ENVISAGE THAT IN THE EVENT OF A GERMAN COLLAPSE, THE NEED FOR THE ARMY TO UNDERTAKE THIS WORK WILL BE ALL THE MORE APPARENT.

THEREFORE, I DIRECT THAT YOU HAVE THE ARMY UNDERTAKE THE PLANNING NECESSARY TO ENABLE IT TO CARRY OUT THIS TASK TO THE END THAT IT SHALL BE PREPARED TO PERFORM THIS FUNCTION PENDING SUCH TIME AS CIVILIAN AGENCIES MUST BE PREPARED TO CARRY OUT THE LONGER RANGE PROGRAM OF RELIEF.

YOU MAY TAKE THIS LETTER AS MY AUTHORITY TO YOU TO CALL UPON ALL OTHER AGENCIES OF THE GOVERNMENT FOR SUCH PLANS AND ASSISTANCE AS YOU MAY NEED. FOR ALL MATTERS OF POLICY THAT HAVE TO BE DETERMINED IN CONNECTION WITH THIS WORK, YOU WILL CONSULT WITH THE STATE DEPARTMENT FOR ANY POLITICAL ADVICE; AND UPON THE TREASURY FOR SUCH ECONOMIC AND FISCAL DIRECTION AS YOU MAY NEED.

WITH RESPECT TO THE TERMINATION OF MILITARY RESPONSIBILITY, THE PRESIDENT WROTE THE SECRETARY OF WAR IN MAY, 1945, AS FOLLOWS:

ONCE LIBERATION OF A COUNTRY HAS BEEN ACCOMPLISHED * * * I FEEL THAT THE BEST INTERESTS OF THE U.S. AND OF THE LIBERATED COUNTRY ITSELF REQUIRE TERMINATION OF THIS MILITARY RESPONSIBILITY AS SOON AS THE MILITARY SITUATION PERMITS. NO RESPONSIBILITY FOR CIVILIAN SUPPLY SHOULD CONTINUE TO REST ON THE ARMY EXCEPT AS MAY BE DICTATED BY THE ACTUAL NECESSITIES OF THE MILITARY SITUATION * * *.

CONSISTENT WITH THE VIEWS SO EXPRESSED IT IS NOTED THAT ACCORDING TO THE " GUIDE TO INTERNATIONAL SUPPLY" (PAGE 119), DECISION WAS TAKEN BY THE END OF MARCH 1945 TO TERMINATE MILITARY SUPPLY RESPONSIBILITY FOR FRANCE WITH THE APRIL LOADINGS AND THAT AFTER V-E DAY THE PROBLEM WITH RESPECT TO TERMINATION FOR OTHER AREAS WAS LARGELY ONE OF CONTINUING MILITARY SHIPMENTS UNTIL THE SEVERAL GOVERNMENTS THEMSELVES COULD ASSUME THE BURDEN; THAT DECISION WAS TAKEN TO RELIEVE SCAEF OF HIS RESPONSIBILITY FOR LIBERATED AREAS IN BELGIUM, LUXEMBOURG, THE NETHERLANDS, NORWAY, AND DENMARK WITH THE COMPLETION OF AUGUST 1945 LOADINGS; AND (PAGE 120) THAT UNRRA WAS IN POSITION TO ASSUME FULL RESPONSIBILITY FOR BOTH SHIPPING AND SUPPLY FOR THE BALKANS BY THE END OF JUNE 1945. AS TO SHIPMENTS MADE FOR AND ON BEHALF OF UNRRA YOU WERE INFORMED IN DECISION B-80119, JANUARY 23, 1951, TO WHICH YOU REFER.

IN THE INSTANT MATTER THERE ARE INVOLVED SHIPMENTS THAT WERE MADE BY THE ARMY FOR DISTRIBUTION BY THE ARMED FORCES AS INCIDENT TO THE DISCHARGE OF THEIR MILITARY DUTIES. OF PARTICULAR SIGNIFICANCE AS BEARING UPON THE MILITARY CHARACTER OF THE TYPE OF TRAFFIC HERE INVOLVED IS THE RECORD OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, SEVENTY-EIGHTH CONGRESS, SECOND SESSION, ON THE MILITARY ESTABLISHMENT APPROPRIATION BILL FOR 1945. IN JUSTIFYING A REQUEST FOR $562,556,900 FOR EMERGENCY CIVILIAN NEEDS, GENERAL JOHN H. HILLDRING, DIRECTOR, CIVIL AFFAIRS DIVISION, ON PAGES 155 AND 157 STATED--

WE HAVE FELT FOR SOME TIME THAT IN MODERN WAR, PARTICULARLY WHEN WE STORM THE FORTRESS OF EUROPE, WE SHOULD HAVE TO DO SOME ADVANCE PLANNING ABOUT WHAT WE ARE GOING TO DO WITH THE CIVILIAN POPULATIONS WHEN WE GET ASHORE, SO THAT WE MIGHT ACCOMPLISH SEVERAL OBJECTIVES. ONE OF THESE OBJECTIVES IS TO SECURE THE CIVILIAN POPULATIONS TO THE MAXIMUM EXTENT POSSIBLE, WHICH IS AN OBLIGATION UNDER INTERNATIONAL LAW; AND THE SECOND, TO SEE THAT THE CIVILIAN POPULATIONS DO NOT INTERFERE WITH THE MILITARY OPERATIONS IN ANY IMPORTANT PARTICULAR; AND THAT THEY ARE SO TREATED THAT THEY WILL BE ABLE TO ASSIST THE FORWARD MOVEMENT OF OUR TROOPS TO THE GREATEST EXTENT POSSIBLE. THAT IS THE BEGINNING AND THE END OF OUR INVOLVEMENT IN THIS BUSINESS. * * * * * **

I WOULD LIKE ALSO TO READ INTO THE RECORD A CABLE SENT LAST DECEMBER BY GENERAL EISENHOWER TO GENERAL MARSHALL. ITS PURPOSE WAS TO INTERPRET A REQUISITION FOR CIVILIAN SUPPLIES WHICH HE HAD ALREADY SUBMITTED AND WHICH WAS THEN UNDER CONSIDERATION IN THE WAR DEPARTMENT. THE CABLE READ:

" IT SHOULD BE UNDERSTOOD THAT OUR REQUISITIONS FOR FOOD FOR THE ITALIAN POPULACE ARE NOT BASED ON CONSIDERATIONS OF HUMANITARIANISM ORANY OTHER FACTOR EXCEPT THAT OF MILITARY NECESSITY. THE CONDITIONS IN SOUTHERN ITALY AND SICILY ARE SUCH THAT UNLESS REASONABLE QUANTITIES OF FOOD ARE SUPPLIED PROMPTLY, WE WILL EXPERIENCE SABOTAGE, UNREST, AND A COMPLETE CESSATION IN ALL THOSE ACTIVITIES NECESSARY TO OUR ADVANCE.'

IN REPORT NO. 1606, HOUSE OF REPRESENTATIVES, 78TH CONGRESS, SECOND SESSION, MR. SNYDER, FROM THE COMMITTEE ON APPROPRIATIONS, REPORTED THAT THE MILITARY ESTABLISHMENT APPROPRIATION BILL, 45,"INCLUDES PROVISION, ESTIMATED FOR SPECIFICALLY FOR THE FIRST TIME, FOR GIVING AID TO CIVILIANS IN RECAPTURED AREAS WHILE OCCUPIED BY OUR MILITARY FORCES AND BEFORE SUCH FORCES MOVE ON AND SAFELY CAN TURN OVER SUCH RESPONSIBILITY TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, GENERALLY REFERRED TO AS U.N.R.R.A. THE DICTATES OF MILITARY NECESSITY AND THE REQUIREMENTS OF INTERNATIONAL LAW PLACE UPON INVADING ARMIES THE RESPONSIBILITY FOR THE SECURITY OF CIVILIAN POPULATIONS WHICH FALL WITHIN THEIR CONTROL.' ( PAGE 11.)

OF LIKE IMPORT IS THE TESTIMONY OF THE HONORABLE DEAN ACHESON, THEN ASSISTANT SECRETARY OF STATE, AND OF MAJOR GENERAL LUCIUS CLAY, DIRECTOR OF MATERIAL, ARMY SERVICE FORCES, AT THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, SEVENTY- EIGHTH CONGRESS, SECOND SESSION, ON THE FOREIGN ECONOMIC ADMINISTRATION APPROPRIATION BILL FOR 1945. MR. ACHESON READ INTO THE RECORD A JOINT STATEMENT OF THE WAR AND STATE DEPARTMENTS AND THE F.E.A., (SEE PAGE 245) STATING IN PERTINENT PART, THAT---

THE EXACT PATTERN OF THE OPERATION WHICH WILL FOLLOW THE ESTABLISHMENT OF THE SECOND FRONT IN EUROPE IS IMPOSSIBLE TO FORETELL. WHATEVER THE EVENTUALITIES PREPARATION MUST BE MADE AS A MATTER OF MILITARY OR POLITICAL NECESSITY, AS THE CASE MAY BE, TO MEET THE ESSENTIAL NEEDS OF THE CIVILIAN POPULATIONS LIBERATED FROM GERMAN CONTROL.

BECAUSE OF THE SPECULATIVE NATURE OF MILITARY OPERATIONS, IT IS NOT POSSIBLE AT THE PRESENT TIME TO PRESENT TO THE COMMITTEE A PRECISE PROGRAM OF THE CIVILIAN REQUIREMENTS FOR THE VARIOUS COUNTRIES IN EUROPE. HOWEVER, AN INDICATION CAN BE GIVEN TO THE COMMITTEE AS TO THE OUTLINES OF THE POSSIBLE NEEDS, TO THE NATURE OF THE SEVERAL SITUATIONS WHICH MAY ARISE DURING THE INITIAL PERIOD, AND THE MECHANISMS WHICH WILL BE AVAILABLE TO MEET THOSE SITUATIONS.

INSOFAR AS THE ARMIES OF THE UNITED STATES PARTICIPATE DIRECTLY IN MILITARY ENGAGEMENTS, THE WAR DEPARTMENT WILL PROVIDE AS AN INTEGRAL PART OF ITS SUPPLY PROGRAM THIS COUNTRY'S SHARE OF SUCH SUPPLIES AS ARE NEEDED TO MAINTAIN THE CIVILIAN POPULATIONS. THE DICTATES OF MILITARY NECESSITY AND THE REQUIREMENTS OF INTERNATIONAL LAW PLACE UPON INVADING ARMIES THE RESPONSIBILITY FOR THE SECURITY OF CIVILIAN POPULATIONS WHICH FALL WITHIN THEIR CONTROL. IN CONDUCTING THEIR MILITARY OPERATIONS THE ARMIES MUST TAKE SUCH MEASURES AS ARE NECESSARY TO AVOID DISEASE, UNREST, AND INTERFERENCE WITH SUPPLY LINES. THE WAR DEPARTMENT IS,THEREFORE, INCLUDING IN ITS APPROPRIATION A REQUEST FOR FUNDS TO MAKE AVAILABLE ESSENTIAL CIVILIAN SUPPLIES TO THE POPULATIONS IN AREAS WHICH WILL MOST PROBABLY BE AFFECTED BY OUR OWN MILITARY OPERATIONS. ( PAGE 235.)

AGAIN, ON PAGE 236, MR. ACHESON SAID---

ALL THE WAY THROUGH THE NEGOTIATIONS ON THE UNITED NATIONS RELIEF AND REHABILITATION AGREEMENT, AND ALL THROUGH THE RESOLUTIONS WHICH WERE PASSED AT ATLANTIC CITY, WE HAVE HAD, UNDER THE INSTRUCTIONS OF THE PRESIDENT AND THE WAR DEPARTMENT, ONE VERY CLEAR RULE, RIGHT FROM THE VERY BEGINNING; THAT NO INTERNATIONAL ORGANIZATION OR CIVILIAN ORGANIZATION OF ANY SORT SHOULD BE ALLOWED TO GO INTO ANY AREAS WHICH IS THE SCENE OF MILITARY OPERATIONS UNTIL ASKED TO DO SO BY THE MILITARY AUTHORITIES. THEY HAVE NO RIGHT, NO PRIVILEGE OF ANY KIND, OF COMING INTO A MILITARY AREA, OR DOING ANYTHING IN SUCH AN AREA, WHERE THEY WOULD BE GETTING IN THE WAY OF TROOPS IN ANY POSSIBLE WAY, UNLESS AND UNTIL THE MILITARY COMMANDER ASKS THEM TO COME IN. THAT IS IN THE U.N.R.R.A. AGREEMENT; IT IS IN THE RESOLUTIONS, AND IT IS AN ABSOLUTELY FIRM UNDERSTANDING AND POLICY.

EVERYBODY REALIZES FULLY THAT IF MILITARY OPERATIONS ARE GOING ON, NOT ONLY THE CONTROL OF THE WHOLE AREA WHERE THE OPERATIONS EXIST, BUT IN ALL OF THE SUPPLY LINES LEADING TO SUCH MILITARY AREA, WHETHER ON THE OCEAN OR ON LAND, AND ALL PORT FACILITIES AND TRANSPORTATION FACILITIES, MUST BE IN CONTROL OF THE MILITARY PEOPLE, AND NOBODY ELSE SHOULD BE SHIPPING ANYTHING, OR ADMINISTERING ANYTHING OR IN ANY WAY INTERFERING WITH THOSE OPERATIONS UNTIL THEY ARE ASKED TO DO SO

FURTHER, THE GENERAL STATEMENT OF GENERAL CLAY, SHOWN ON PAGE 247 OF THE SAME REPORTS, INCLUDES THE FOLLOWING:

IN OUR OPERATIONS IN ITALY TO DATE WE HAVE NECESSARILY HAD TO PROVIDE FOR AND TAKE CARE OF THE CIVILIAN POPULATION BEHIND THE LINES TO AVOID CONFUSION, CHAOS, PESTILENCE AND DISEASE. IT HAS BEEN AN INTEGRAL PART OF OUR MILITARY OPERATIONS; AND, IN FACT, WE NECESSARILY HAD TO LAND SUPPLIES FOR THAT PURPOSE VERY SHORTLY AFTER THE FIRST BEACH LANDINGS WERE MADE IN ITALY.

WE FEEL THAT IN THE INVASION OF WESTERN EUROPE WE MUST FOLLOW A SIMILAR PATTERN; THAT WE MUST HAVE THE SUPPLIES AND EQUIPMENT NECESSARY TO SUSTAIN A MINIMUM ECONOMY, IN OUR LINES OF COMMUNICATIONS, IF OUR MILITARY OPERATIONS ARE TO HAVE SUCCESS.

WE DO NOT FEEL THAT THIS CAN BE DONE APART FROM THE MILITARY OPERATIONS, BECAUSE ALL OF THE TRANSPORTATION FACILITIES WHICH ARE IN EXISTENCE ARE OVERTAXED. THERE HAS TO BE COMPLETE COORDINATION IN THE USE OF BEACHES, PORTS, AND ALL OTHER FACILITIES FOR MOVING SUPPLIES.

THUS, IT APPEARS QUITE CLEAR THAT SHIPMENTS OF ESSENTIAL SUPPLIES TO OVERSEAS DESTINATIONS INTENDED FOR CIVILIAN CONSUMPTION IN LIBERATED OR OCCUPIED COUNTRIES, UPON DISTRIBUTION BY THE ARMY IN CONNECTION WITH ITS SERVICE OF OCCUPATION, WERE MILITARY PROPERTY MOVING FOR A MILITARY USE. THE FUNCTIONING OF THE ARMY IN ITS CAPACITY OF OCCUPATION TROOPS WAS A MILITARY OPERATION AND THE DISTRIBUTION OF PROPERTY BY IT WHILE SO FUNCTIONING, EVEN THOUGH FOR CIVILIAN CONSUMPTION, WAS PRESUMABLY A PART OF THE MEANS BY WHICH THAT MILITARY OPERATION WAS ACCOMPLISHED. SUCH PROPERTY DISTRIBUTED FOR SUCH PURPOSE CONTRIBUTED TO THE PROTECTION OF OUR TROOPS FROM EVILS INHERENT IN OPERATIONS IN HOSTILE OR PREVIOUSLY ENEMY- OCCUPIED TERRITORY; AND AS INDICATED IN THE TESTIMONY QUOTED ABOVE SUCH USE OF SUCH PROPERTY WAS NOT BASED PRIMARILY UPON CONSIDERATIONS OF HUMANITARIANISM BUT RATHER UPON MILITARY NECESSITY.

A STUDY OF THE PRINCIPLES ENUNCIATED BY THE SUPREME COURT IN NORTHERN PACIFIC R. CO. V. UNITED STATES, 330 U.S. 248, LENDS FURTHER SUPPORT TO THE CONCLUSION THAT THE INVOLVED SHIPMENTS WERE FOR MILITARY USE. THE COURT HELD THAT---

MILITARY OR NAVAL USE INCLUDES ALL PROPERTY CONSUMED BY THE ARMED FORCES OR THEIR ADJUNCTS, ALL PROPERTY WHICH THEY USE TO FURTHER THEIR PROJECTS, ALL PROPERTY WHICH SERVES THEIR MANY NEEDS OR WANTS IN TRAINING OR PREPARATION FOR WAR, IN COMBAT, IN MAINTAINING THEM AT HOME OR ABROAD, IN THEIR OCCUPATION AFTER VICTORY IS WON. IT IS THE RELATION OF THE PROPERTY TO THE MILITARY OR NAVAL EFFORT THAT IS CONTROLLING UNDER S. 321 (A). ITALICS SUPPLIED.)

THE VIEW THAT MILITARY PROPERTY WAS CONFINED TO PROPERTY FOR ULTIMATE USE DIRECTLY BY THE ARMED FORCES WAS REJECTED. AND IN SOUTHERN PACIFIC CO. V. UNITED STATES, 107 C.1CLS. 525, CERTIORARI DENIED, 331 U.S. 846, IT WAS HELD THAT SHIPMENTS OF SUPPLIES "SUCH AS CIVILIANS MIGHT USE IN ORDINARY COMMUNITY LIFE," SHIPPED BY A CIVILIAN AGENCY, FOR DISTRIBUTION TO CIVILIANS IN WAR RELOCATION CENTERS, WERE MILITARY PROPERTY MOVING FOR MILITARY USE BECAUSE THE DISTRIBUTION OF SUCH SUPPLIES WAS PROMPTED BY MILITARY NECESSITY. THE COURT SAID---

WE THINK THE MILITARY EFFORT EXTENDED TO THE RELOCATION CENTERS; THAT THE MILITARY ARM WAS NOT RELAXED AFTER THE EVACUEES WERE RELOCATED, AND THAT THE USE OF CIVILIAN AGENCIES TO CARE FOR THESE PEOPLE DID NOT MAKE MILITARY NECESSITY SOMETHING OTHER THAN WHAT IT WAS FROM THE BEGINNING TO END.

THE ARGUMENTS BY THE CARRIERS, CITED IN YOUR LETTER, TO THE EFFECT THAT THIS PROPERTY SHOULD BE CLASSIFIED AS INTENDED FOR CIVIL USE, ARE NOT PERSUASIVE. THE CONTENTION THAT THE MILITARY CIVILIAN SUPPLY PROGRAM WENT BEYOND THAT ESSENTIAL TO SUCCESSFUL OPERATIONS AGAINST THE ENEMY AND BEYOND THE PERIOD OF MILITARY NECESSITY REFLECTS A CONCLUSION CONTRARY TO THAT APPARENTLY REACHED BY MILITARY AUTHORITIES UPON A MATTER SOLELY WITHIN THEIR DISCRETION AT THE TIME THE EXERCISE OF MILITARY JUDGMENT WAS REQUIRED. IT WAS UNQUESTIONABLY THE PREROGATIVE OF THE MILITARY COMMANDER IN A GIVEN AREA TO DETERMINE THE NATURE AND EXTENT OF THE PROGRAM ESSENTIAL TO THE PROPER DISCHARGE OF HIS MILITARY DUTY AND THE DETERMINATION AS TO THE TIME WHEN THE MILITARY SITUATION PERMITTED TERMINATION OF MILITARY RESPONSIBILITY AND THE ASSUMPTION OF THE PROGRAM BY CIVILIAN AGENCIES WAS A MATTER OF MILITARY JUDGMENT WHICH THIS OFFICE IS NOT PREPARED TO QUESTION. MOREOVER, THE PRESENT RECORD INDICATES THAT TERMINATION OF MILITARY RESPONSIBILITY WAS EFFECTED AT THE EARLIEST PRACTICABLE TIME. CHAPTER V, PART III," A GUIDE TO INTERNATIONAL SUPPLY.' BUT EVEN AS TO SHIPMENTS WHICH MAY HAVE BEEN HANDLED BY THE ARMY AFTER THE DATES SHOWN AS GENERALLY MARKING THE ASSUMPTION OF RESPONSIBILITY BY CIVILIAN RELIEF AGENCIES, THERE WOULD BE NO SUFFICIENT BASIS FOR THIS OFFICE TO ASSUME THAT SHIPMENTS SO HANDLED WERE NOT NECESSARY TO THE PROPER DISCHARGE OF THE DUTIES AND FUNCTIONS OF THE MILITARY FORCES IN LIBERATED AND OCCUPIED AREAS.

THE ALLEGATION THAT "THE ARMY'S PROGRAM, WHILE "STOPGAP" IN NATURE, WAS CIVILIAN RELIEF OF EXACTLY THE SAME KIND AS THAT ULTIMATELY ADMINISTERED BY CIVILIAN AGENCIES CHARGED WITH RESPONSIBILITY FOR FULL SCALE, LONG- RANGE RELIEF AND REHABILITATION" OVERLOOKS THE MATERIAL FACT THAT THE MILITARY PROGRAM WAS PROMPTED BY MILITARY NECESSITY AND THE CIVILIAN PROGRAM WAS NOT. THAT FACT EXPLAINS THE DIFFERENCE BETWEEN THE PROGRAMS AND, LIKEWISE, THE DIFFERENCE IN THE CHARACTER OF THE PROPERTY EMPLOYED BY EACH. THE FACT THAT "GOODS OF ALL DESCRIPTIONS WERE SHIPPED, INCLUDING THOSE INTENDED AND USED FOR GENERAL REHABILITATION OF THE CIVILIAN POPULATIONS AND NATIONAL ECONOMIES" IS NOT MATERIAL TO THE QUESTION HERE. " PENCILS AS WELL AS RIFLES MAY BE MILITARY PROPERTY.' NORTHERN PACIFIC CASE, SUPRA. AND AS HAS BEEN STATED BEFORE, IT IS NOT THE ULTIMATE CONSUMPTION OR UTILIZATION OF THE PROPERTY WHICH IS CONTROLLING BUT ITS RELATION TO THE MILITARY EFFORT.

THE DIRECTION OF THE CONGRESS IN SECTION 5 OF THE 1945 AND 1946 MILITARY APPROPRIATION ACTS, 58 STAT. 593 AND 59 STAT. 404, THAT " APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT * * * SHALL BE AVAILABLE FOR * * * FOOD, CLOTHING, MEDICINE AND OTHER ITEMS TO MEET URGENT CIVILIAN NEEDS IN OCCUPIED AND SUCH OTHER AREAS AS MAY BE DETERMINED BY THE SECRETARY OF WAR TO BE IMPORTANT TO MILITARY OPERATIONS OF THE UNITED STATES" APPEARS TO RECOGNIZE THE MILITARY--- AS OPPOSED TO CIVIL -- CHARACTER OF THE SUPPLY PROGRAM ADMINISTERED BY THE ARMY SINCE IT AUTHORIZED THE USE OF MILITARY FUNDS TO CARRY OUT THE PROGRAM AND REFERS TO AREAS IMPORTANT TO THE MILITARY OPERATIONS OF THE UNITED STATES.

THE CONTENTION THAT THIS PROPERTY SHOULD BE CLASSIFIED AS INTENDED FOR CIVIL USE BECAUSE IT WAS SIMILAR TO THE LEND-LEASE PROPERTY CONSIDERED IN UNITED STATES V. POWELL, 330 U.S. 238, AND TO THE U.N.R.R.A. PROPERTY CONSIDERED IN THE DECISION OF THIS OFFICE, B-80119, JANUARY 23, 1951, FAILS TO TAKE INTO CONSIDERATION THE FACT THAT THE RELATIONSHIP OF THE PROPERTY HERE INVOLVED TO THE MILITARY EFFORT WAS DIFFERENT FROM THAT OF THE PROPERTY CONSIDERED IN THE OTHER TWO INSTANCES.

IT IS THE OPINION OF THIS OFFICE, THEREFORE, THAT THE PROPERTY HERE CONCERNED, PROCURED AND SHIPPED BY THE MILITARY, AND INTENDED AT THE TIME OF SHIPMENT FOR USE IN THE DISCHARGE OF A MILITARY DUTY ARISING OUT OF MILITARY NECESSITY, WAS MILITARY PROPERTY OF THE UNITED STATES MOVING FOR MILITARY USE WITHIN THE MEANING OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, SUPRA. ACCORDINGLY, THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING, ON THE BASIS OF AVAILABLE RECORDS, THAT THE CARRIERS WOULD BE ENTITLED TO PAYMENT FOR THIS TRANSPORTATION ON THE BASIS OF OTHER THAN NET LAND-GRANT RATES.