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BIBLIOGRAPHY
The bibliography that follows is intended as a reference for those
that may wish to study the subject of the evolution and organization
of the Federal intelligence function more completely. The following
books are a useful beginning to the subject: George S. Bryan. The
Sw in America (194:3) ; AllIson Ind, A Short History of Espionage
(1963); David Kahn, The Codebreakers (1967), Lyman B. Kirkpatrick,
Jr., The U.S. Intelligence Community (1973); Victor Marchetti
and John D. Marks, The CIA and the Cult of Intelligence
(1974:) ; Harry Howe Ransom, The Intelligence Establishment (1970) ;
R. Harris Smith, OSS (1972) ; David Wise and Thomas B. Ross, The
Invisible Government (1974:). In addition, there are the hearings of
the House Select Committee on Intelligence and the Senate Select
Committee To Study Governmental Operations With Respect to Intelligence
Activities. The latter panel has produced two special studies:
Alleged Assassination Plots I n1.Jol1-·ing Foreign Leaders
(Senate Report No. 94:-4:65); and Covert Action In Chile,
1963-1973 (a Senate Committee print).
The full citations of these works, together with their Library of
Congress catalog numbers, will be found below.
Abel, Elie. The Missile Orisis. Philadelphia, Lippincott, 1966. 220 p.
E84:1.A2
Agee, Philip. Inside the Company: CIA Diary. New York, Stonehill
Publishing Company, 1975. 64:0 p. JK4:68.I6A75
Alsop, Stewart and Thomas Braden. Subrosa: The O.s.S. and Ameriican
Espionage. New York, Reynal and Hitchcock, 194:6. 237 p.
D810.S7A55 .
Anon. Foreign Security Surveillance and the Fourth Amendment.
Harvard Law Review, v. 87, March, 1974:: 976-1000. Law
Anon. Judicial Review of Military Surveillance of Civilians: Big
Brother Wears Modern Army Green. OolwmlJia Law Review, v. 72,
October, 1972: 1009-1047. Law
Ariel (pseud.). The Stupidity of Intelligence. The Washington
Monthly, v. 1, September, 1969: 23-24:. E838.W37
Association of the Bar of the City of New York Committee on Civil
Rights. Military Surveillance of Civilian Political Activities: Report
and Recommendations for Congressional Action. Record of
the Association of the Bar of the Oity of New York, v. 28, October,
1973: 651-676. Law
---. Committee on Federal Le~slation. Judicial Procedures for
National Security Electronic Surveillance. Record of the Associationo!
the Bar of the Oity of New York, v. 29, December, 194:7: 751774:.
Law
Bakeless, John. Spies of the Oonfederacy. Philadelphia and New York,
J. B. Lippincott Company, 1970. 456 p. E608.B13
(293)
294
---. Turncoat, Traitors amii Heroes. Philadelphia, J. B. Lippincott
Company, 1959. 406 p. E279.B3
Baker, LaFayette C. History of the United States Secret Service.
Philadelphia, King and Baird, 1868. E806.B16
Barnet, Richard J. Dirty Tricks and the Intelligence Underworld.
Society, v. 12, March!April, 1975: 52-57. H1.T72
Barnum, H.L. The Spy Unmasked; or Memoirs of Enoch Orosby. New
York, J. J. Harper, 1828. 206 p. E208.C95B6
Baskir, Lawrence M. Reflections on the Senate Investigation of Army
Surveillance. Indiana Law Journal, v. 49, Summer, 1974: 618-653.
Law.
Bates, David Homer. Lincoln in the Telegraph Office. New York, The
Century Company, 1907. 432 p. E457.15.B32
Becker, Jerrold L. The Supreme Court's Recent "National Security"
Decisions: Which Interests Are Being Protected ~ Tennessee Law
Review, v. 40, Fall, 1972: 1-27. Law
Beymer, W. G. On Hazardous Service. New York, Harper and
Brothers, 1912. 286 p. E608.B57
Blackstock, Paul W. Agents of Deceit. Chicago, Quadrangle Books,
1966. 315 p. DK61.B55 .
---. Counterintelligence and the Constitutional Order. Society,
v.12, MarchiApril, 1975: 8-10. H1.T72
---. The Intelligence Community Under the Nixon Administration.
A1"11UJd Forces and Society, v. 1, February, 1975: 231-250.
U21.5.A74
---. The Strategy of Subversion. Chicago, Quadrangle Books, 1964.
351 p. JK468.16B56
Bobb, Merrick John. Preventive Intelligence Systems and the Courts.
Oalifornia Law Review, v. 58, June, 1970: 914-940. Law
Bopp, William J. and Donald O. Shultz. A Short History of American
Law Enforcement. Springfield, Illinois, Charles C. Thomas, 1972.
174 p. JV8138.B58
Borosage, Robert. Secrecy vs. the Constitution. Society, v. 12, Marchi
April, 1975: 71-75. H1.T72
Bowen, Walter S. and Harry Edward Neal. The United States Secret
Service. Philadelphia and New York, Chilton Company, 1960. 205 p.
HV8138.B6
Boyd, Belle. Belle Boyd in Oamp and Prison. New York, Blelock and
Company, 1865.464 p. E608.B783
Brandt, Ed. The Last Voyage of USS Pueblo. New York, W. W.
Norton and Company, 1969. 248 p. VB230.B7
Braunstein, Michael. Constitutional law-Jurisdiction of Federal
Courts-First Amendment Chill Resulting From Army Surveillance
Non-justicable. Tulane Law Review, v. 47, February, 1973: 426-436.
Law
Brown, J. Willard. The Signal Oorps, U.S.A., in the War of the
Rebellion. Boston, U.S. Veteran Signal Corps Association, 1896.
711 p. E608.B87
Brownell, Herbert, Jr. The Public Security and Wiretapping. Oornell
Law Quarterly, v. 39, Winter, 1954: 195-213. Law
Bryan, George S. The Spy in America. Philadelphia, J. B. Lippincott
Company, 1943. 256 p. UB270.B7
295
Bulloch, James D. The Secret Service of the Oonfederate States in
Europe. New York, Thomas Yoseloff, 1959; originally published
1884. 2 v. E488.B93
Burlingame, Bo. Paranoia In Power. Harper's Magazine, v. 249,
October, 1974: 26, 28-32, 36-37. AP2.H3
Burnham, George P. 111errwirs of the Secret Service. Boston, Lee and
Shepard, 1872. 436 p. HV7914.B8
Christie, George C. Government Surveillance and Individual Freedom:
A Proposed Statutory Response to Laird v. Tatum and the
Broader Problem of Government Surveillance of the Individual.
New York University Law Review, v. 47, November, 1972: 871-902.
Law
Churchill, Marlborough. The Military Intelligence Division General
Staff. Journal of the United States Artillery, v. 52, April, 1920: 293316.
UF1.J86
Clark, Evert. How Business Bolsters Our Intelligence Defenses.
Nation's Business, v. 60, August, 1972: 54-57. HF1.N4
Cline, Ray S. United States Army in World War II-The War
Department, Washington Oommand Post: The Operations DivisiOn.
Washington, U.S. Govt. Print. Off., 1951. 413 p. D769.A533
Clymer, Adam. The Bombing of Joe Bananas. Progressive, v. 36,
August, 1972 : 20-25. AP2.P8655
Colby, William E. The C.LA.'s Covert Actions. Oenter Magazine, v. 7,
MarchiApril, 1975 : 71-80
Collins, Frederick L. The F.B.I. in PeMe and War. New York, Ace
Books, 1962.320 p. HV8141.C6
Cook: Fred J. The F.B.I. Nobody Knows. New York, Macmillan, 1964.
436 p. HV8141.C63 •
--. J. Edgar Hoover and the FBI. Lithopinion, v. 6, No.2, 1971:
8-15,58-63. NE2250.A414
Cooper, Chester 1. The CIA and Decision-Making. Foreign Affair8,
v. 50, January, 1972: 223-236. D410.F6
Coyle, Robert E. Surveillance From The Seas. Military LaJW Review,
v. 60, Spring, 1973 :75-97. Law
Croffut, W. A., ed. Fifty Years In Oamp and Field: Diary of MajorGeneral
Ethan Allen Hitchocock, U.S.A. New York and London,
G. P. Putnam's Sons, 1909. 514 p. E388.H62
Cronon, E. David, ed. The Oabinet Diaries of Josephus Daniels, 191319~
1. Lincoln, University of Nebraska Press, 1963. 648 p. E766.D29
Crump, Irving, and John W. Newton. Our G-men. New York, DoddMead,
1937. 241 p. HV8141.C7
Currey, Cecil B. Oode Number 7~-Benjamin Franklin: Patriot 01'
Spy? Englewood Cliffs, Prentice-Hall, 1972. 311 p. E302.6.F8C798
Daniels, Josephus. The Wilson Era: Years of Peace-191o-1917.
Chapel Hill, The University of North Carolina Press, 1944. 615 p.
E766.D3
--. The Wilson Era: Years of War and Afte1'-1917-19B3. Chapel
Hill, The University of North Carolina Press, 1946. 654 p. E766.D33
Daniels, Roger. The Bonus March: An Episode of the Great Depre8sion.
Westport, Greenwood Publishing Corporation, 1971. 370 pp.
F199.D18
DePoix, Vincent P. Security and Intelligence. National Defense, v. 59,
July-August, 1974: 35-39. UF1.067
296
Donner, Frank. The Theory and Practice of American Political Intelligence.
The New York Review of Books, v. 18, April 22, 1971:
27-40. AP2.N655
---. The Confession of an FBI Informer. Harper's Magazine, v.
245, December, 1972: 54-58, 61-65. AP2.H3
Donner, Frank.r. Hoover's Legacy. The Nation, v. 218, June 1, 1974:
678-700. AP2.N2
Dorman, Michael. The Secret Service Story. New York, Delacotre
Press, 1967. 275 p. HV7961.D6
Douglas, H. K. I Rode With Stonewall. Chapel Hill, University of
North Carolina Press, 1940. 401 p. E470.D68
Dulles, Allen. The Oraft of Intelligence. New York, Harper and Row,
1963. 277 p. UB270.D8
---. The Secret Surrender. New York, Harper and Row, 1966. 268
p. D810.S7D8
Dykstra, Robert R., ed. Intelligence and Security. Oivil War History,
v. 10, December, 1964: whole issue. E461.C5
Editors. Developments in the Law: The National Security Interest
and Civil Liberties. Harvard Law Review, v. 85, April, 1972: 11331327.
Law.
Editors. The Complete Collection of Political Documents Ripped-Off
from the FBI Office in Media, Pa. Win, v. 8, March, 1972: entire
issue.
Edmonds, S. Emma E. Nurse and Spy in the Union Army. Hartford,
W. S. Williams, 1865.384 p. E608.E24
Ehlke, Richard. Political Surveillance and Police Intelligence Gathering-
Rights, ",Vrongs. and Remedies. Wisconsin Law Review, v.
1972, No.1, 1972: 175-199. Law
Eisenhower, Dwight D. Orusade in Europe. New York, Doubleday
and Company, 1948. 559 p. D743.E35.
Elliff, John T. Ori7lUJ, Dissent, and the Attorney General. Beverly
Hills, Sage Publications, 1971. 276 p. JC599.U5E47
---. The President and the FBI: Dependence or Independence.
Burea:ucrat. v. 3, April. 1974 :42-fl9.•TQ3092.Z1B86
Falk, Richard A. CIA Covert Action and International Law, Society,
v. 12, MarchiApril, 1975: 39-44. H1.T72
Fallows, .Tames. Putting the Wisdom Back into Intelligence. The
Wa8hington Monthly, v. 5, June, 1973:~18. E838.W37.
Fara~o, Ladislas. War of Wits: The Anatomy of Espionage and Intelligence.
New York, Funk and Wagnalls Company, 1954. 379 p.
UB270.F3
FiRhbein, Leslie. Federal Suppression of Leftwing Dissidence in
World War I. Potomac Review, v. 6, Summer, 1974:47-68.
HD1695.P65154
Fitzpatrick, .T. C. The Spirit of the Re1wlution. Boston and New York,
Houghton Mifflin Company, 1924. 300 p. E209.F62
Flick, A. C. Loyalism in New York during the Amer'I:e(fJn Revolution.
New York Columbia University Press, 1901. 281 p. R31.C7
Foote, Alexander. Handbook for Spies. New York, Doubleday and
Company, 1949 273 p. D810.S8F66
Ford, Corey, and Alastair MacBain. OloaJc and Dagger: The Street
Story of OSS. New York, Random House, 1945. 216 p. D810.S7F6
297
--. Donov(JlJ1, of OSS. Boston, Little, Brown and Company, 1970.
366 p. D810.S8D55
French, Allen. General Gage's Informers. Ann Arbor, University of
Michi~anPress, 1932. 207 p. E24l.L6F85
Furer, Julius Augustus. Administration of tM Navy Department in
World War II. Washington, U.S. Govt. Print. Off., 1959, 1042 p.
VB23.F3
Futterman, Stanley N. Toward Legislative Control of the C.I.A. New
York University Jou'l"lUll of International Law and Politics, v. 4,
Winter, 1971: 431--458 JXl.N45
Gallery, Daniel V. The Pueblo Incident. New York, Doubleday and
Company, 1970. 174 p. VB230.G3
Giddings, Howard A. Exploits of the Sig'lUil Oorps in the War with
Spain. Kansas City, Mo., Hudson-Kimberly Publishing Company,
1900. 126 p. E725.47.S5G4
Glass, Robert R. and Phillip B. Davidson. Intelligence is for Oommanders.
Harrisburg, Military Service Publishing Company, 1948.
189 p. UB250.G57
Goodman, Richard C. Privacy and Political Freedom: Applications of
the Fourth Amendment 'to "National Security" Investigations.
U.O.L.A. Law Review, v.17, June, 1970: 1205-1251. Law
Goulden, Joseph C. Truth is tM First Oa81U1lty. Chicago, Rand McNally,
1969. 285 p. DS557.A63G67
Goulding, Phil G. Oonfirm or Deny. New York, Harper and Row,
1970.369 p. UA23.G77
Gowenlock, Thomas R. with Guy Murchie, Jr. Soldiers of Da:rknes8.
New York, Doubleday, Doran and Company, 1937. 286 p. D639.S8G6
Grant, Robert M. U-Boat Intelligence 1914-1918. Hamden, Conn.,
Archon Books, 1969. 192 p. VB230.G7
Graves, Harold N., Jr. War on the Bhart Wave. New York, Foreign
Policy Association Headline Books, 1941. 64 p. E744.H43 no. 30
Gray, Wood. The Hidden Oivil War. New York, The Viking Press,
1942. 314 p. E458.8G72
Greenhow, R. O'N. My Imprisonment and the First Year of Abolition
Rule at Washington. London, R. Bentley. 1863. 352 p. E608.G8
Habord, James G. The American Army in France, 1917-1919. Boston,
Little, Brown and Company, 1936. 632 p. D570.H275
Halberstam, David. The Best and the Brightest. New York, Random
House, 1972. 688 p. E841.H25
Halperin, Morton H. Decision Making for Covert Operations. Society,
v. 12, MarchiApril, 1975: 45-51.
Harney, Malachi and John C. Cross. The Informer I'n Law Enforcement.
Springfield, Ill., Thomas, 1960. 83 p. Hv8073.H27
Haynes, Richard F. The Awesome Power: Harry S. Truman as Oommander
in Ohief. Baton Rouge, Louisiana State University Press,
1973. 359 p. E813.H42
Headley, John W. Oonfederate Operations in Oanada and New York.
New York and Washington, The Neale Publishing Company, 1906.
480 p. E608.H43
Higham, John. Strangers in the Land: Patterns of A.merican Nativ~,
1860-1~. New York, Atheneum, 1968. 431 p. El84.A1R5
HIlsman, Roger C. Strategic Intelligence aM National Decisions.
Glencoe, The Free Press, 1956. 187 p. JF1525.16H53
298
--. To Move a Nation. New York, Doubleday and Company, 1967.
602 p. E840.H5
Hirshson, Stanley P. Grenville M. Dodge: Soldier, Politician, Railroad
Pioneer. Bloomington and London, Indiana University Press,
1967.334 p. E467.1.D6H5
Hittle, J. D. The Military Staff: Its History and Development. Harrisburg,
The Military Service Publishing Company, 1949. 286 p.
UB220.H5
Hoopes, Townsend. The Devil and John Foster Dulles. Boston, Little,
Brown, 1973. 562 p. E835.D85H66
Horan, James D. The Pinkertons: The Detective DYnaJ8ty That
Made History. New York, Crown Publishers, 1967. 564 p.
HV8087.P75H62
--. and Howard Swiggett. The Pinkerton Story. New York, G. P.
Putnam's Sons, 1951. 366 p. HV8087.P75H6
Hougan, Jim. A Surfeit of Spies. Harper's Magazine, v. 249" November,
1974: 51-54, 56, 58, 63-64, 66-67. AP2.H3
Hough, Emerson. The Web. Chicago, The Reilly and Lee Company,
1919. 511 p. D619.:3.H6
Hyman, Harold M. To Try Men's Souls: Loyalty Tests in American
History. Berkeley and Los Angeles, University of California Press,
1959. 414 p. E183.9.H9
Ind, Allison. A History of Modern Espionage. London, Hodder and
Stoughton, 1965. 288 p. UB270.I48
--. A Short History of Espionage. New York, David McKay
Company, 1963. 337 p. UB270.I5
--. Allied Intelligence Bureau: Our Secret Weapon in the War
Against Japan. New York, David McKay Company, 1958. 305 p.
D810.S715
Jackson, Jarko. A Methodology for Ocean Surveillance Analysis.
Naval War Oollege Review, v. 27, September-October, 1974: 71-89.
V1.U48
Janov, Gwenellen P. Electronic Surveillance&-The President of the
United States Has No Authority to Conduct Wiretaps to Protect
Against Domestic Threats to the National Security Without a
Judicial Warrant. George Washtington Law Review, v. 41, October,
1972: 119-134. Law
Jensen, Joan M. The Price of Vigilatwe. Chicago, Rand McNally and
Company, 1968. 367 p. E743.5.J4
Johnson, Haynes. The Bay of Pigs. New York, W. W. Norton, 1964.
308 p. F1788.J6
Johnson, T. M. Our Secret War. Indianapolis, The Bobbs-Merrill
Company, 1929. 340 p. D639.S7J6
Johnston, H. P. The Secret Service of the Revolution. Magazine of
American History, v. 8, February, 1882: 95-105. E171.M18
Kahn, David. The Oodebreakers, History of Secret OommJl.tnication.
New York, Macmillian, 1967. 1164 p. Z103.K28
Kalisch, Robert B. Air Force Technical Intelligence. Air University
Review, v. 22, July-August, 1971: 2-11. TL501.A5574
Kammen, Michael. A Rope of Sand: The Oolonial Agents, British
Politics, and the Ameri('an Revolution. Ithaca, Cornell University
Press, 1968. 349 p. E195.K28
299
Kent, Sherman. Strategic Intelligence lor American World Policy.
Princeton, Princeton University Press, 1949. 226 p. JF1525.I6K4
Kim, Young Hum, ed. The Central Intelligence Agency: Problems
01 Secrecy in a Derrweracy. Lexington, D. C. Health and Company,
1968. 113 p. JK468.I6K48
Kirkpatrick, Lyman B., Jr. Parliamentary Case Study: The Bay of
Pigs. N(J//)al War College Review, v. 25, November-December, 1972:
32--42. V1.U48
--. The Real CIA. New York, Macmillian, 1968. 312 p.
JK468.I6K5
--.The U.S. Intelligence CO'm!lTIIUnity: Foreign Policy and Domestic
Activities. New York, Hill and Wang, 1973. 212 p. JK468.I6K53
Koch, Oscar W., with Robert G. Hays. u-2: Intelligence for Patton.
Philadelphia, Whitmore Publishing Company, 1971. 167 p.
D810.S7K6
Levin, Murray B. Political Hysteria In America. New York, Basic
Books, 1971. 312 p. E743.5.L46
Longaker, Richard. The Presidency and Individual Liberties. Ithaca,
Cornell University Press, 1961. 239 p. JK518.L6
Loory, Stuart H. The CIA's Use of the Press: A "mighty Wurlitzer."
Oo7Jumbia Journalism Review, v. 13, September--0ctober, 1974: 9-18.
PN4700.C64
--. and David Kraslow. The Secret Search for Peace in Vietnam.
New York, Random House, 19l?8. 2477 p. DS557.A692K7
Lovell, Stanley P. Of Spies and Stratagems. Englewood Cliffs, Prentice-
Hall, Inc., 1963. 191 p. D81O.S7L6
Lowenthal, Max. The Federal Bureau of Investigation. New York,
William H. Sloane Associates, 1950. 559 p. HV8138.L68
MacCloskey, Monro. The American Intelligence Com;rnunity. New
York, Richards Rosen Press, 1967. 190 p. JK468.I6M28
March, Peyton C. The Nation at War. New York, Doubleday, Doran
and Company, Inc., 1932. 407 p. D570.M35
Marchetti, Victor and John D. Marks. The OIA and the Oult of Intelligence.
New York, Alfred A. Knopf, 1974.398 p. JK468.I6M37
Marks, John. How to Spot a Spook. The Washington Monthly, v. 6,
November, 1974: 5-12. E838.W37
Marshall, Max L., ed. The Story of the U.S. Army Signal Oorps. New
York, Franklin Watts, 1965. 305 p. UG573.M35
Mathews, David J. Civilians' Claim that Army's Data Gathering System
Works a Chilling Effect on their First Amendment Rights Held
Not to be a Judiciable Controversy Absent Showing of Objective
Present Harm or Threat of Future Harm. Villanova Law Review,
v. 18, February 1973: 479-491. Law
McGarvey, Patrick .T. O.I.A.: TheM'Yth UJnd the Madness. London,
Penguin Books. 1973. 240 p. JK468.16M29
--. DIA: Intelliaence To Please. The Washington Monthly, v. 2,
.Tuly, 1970: 68-76. E838.W37
McNamara, Robert S. The Essence of Security. New York, Harper
and Row, 1968.176 P. UA23.M25
Mei.sel. Alan. Political Surveillance and the Fonrth Amendment. University
of Pittsburgh Law Review, v. 35, Fall, 1973: 53-71. Law
Mes.<;ick, Hlmk. •John Edgar Hoover. New York, David McKay, 1972.
276 p. HV7911.H6M46
70-890 0 - 76 - 20
300
Meyer, Karl E., and Tad Szulc. The OubanlnvaBWn. New York, Praeger,
1962.160 p. F1788.M45
Millis, Walter, ed. The F01'7'estal Dia:ries. New York, The Viking
Press, 1951. 581 p. E813.F6
Millspaugh, Arthur C. Orime Oontrol by the NatWnal Government.
Washington, The Brookings Institution, 1937. 306 p. HV8141.M5
Milton, George Fort. AbraMm Linooln and the Fifth Oolumn. New
York, The Vanguard Press, 1942. E458.8.M66
Mogelever, Jacob. Death to Traitors: The Story of General Lafayette
O. Baker, Lincoln's Forgotten Secret Service Chief. New York,
Doubleday and Company, 1960.429 p. E608.B187
Moore, J. E. The U.S. Intelligence Community: Its Problems-and
Achievements. Navy International, v. 79, August, 1974: 11-12.
V1.N77
Murphy, Edward R., Jr., with Curt Gentry. Second in Oomnnand: The
Unoens01'ed Account of the Oapture of the Spy Ship Pueblo. New
York, Holt, Rinehart and Winston, 1971. 452 p. VB230.M87
Murray, Robert K. The Red Soore: A Study in NatiQTI,(JJ Hysteria.
Minneapolis, University of Minnesota Press, 1955. 357 p. E743.5.M8 .
Myars, Gustavus. The History of Bigotry in the United States. New
York, Random House, 1943. 504 p. BR516.M9
Nathanson, Nathaniel L. Freedom of Association and the Quest for
Internal Security: Conspiracy from Dennis to Dr. Spock. Northwestern
U'YIiversity Law Review, v. 65, May-June, 1970: 153-192.
Law
National Popular Government League. To the American People: Report
Upon the nleqal Practices of the Department of J'IJ,.~tice.Washmgton,
National Popular Government League, 1920. 68 p. Law
Navasky, Victor. Kennedy Justice. New York, Atheneum, 1971. 482
p. KF5107.N34
Nelson.•Ta('k. ann .TR('k Rass. Thp, ()rnngdmrff M(1R.~acre. Clevelann.
World Publishing Company, 1970.272 p. F279.06N4
Nelson, Otto, L., Jr. National Security and the General Staff. Washington,
Infantry Journal Press, 1946.608 p. UB23.N43
O~burn, Carleton. The Marauders. New York, Harper, 1959.307 p.
D767.6.04
Ollestad, Norman. Inside the FBI. New York, Lyle Stuart, 1967. 319
p. HV8138.04
Ottenberg, Miriam. The Federal Investigators. Englewood Cliffs,
Prentice-Hall, 1962. 348 p. HV8138.08
Overstreet, Harry and Bonaro. The FBI in Our Open Society. New
York, W. W. Norton, 1969. 400 p. HV8141.09
Pennypacker, Morton. General Washington's Spies. Brooklyn, Long
Island Historical Society, 1939.42 p. E279.P46
Perkins, J. R. Trails, Rail8 and War: The Life of General G. M.
Dodge. Indianapolis, the Bobbs-Merrill Company, 1929. 371 p.
E467.1.D6P4
Pershing, John J. My Experiences in the World War. New York,
Frederick A. Stokes Company, 1931. 2 v. D570.P44
P~ttee, Geor~e S. The Future of American Secret Intelligence. Washm~
on, Infantry Journal Press, 1946. 120 p. HV8141.P4
Pierce, P. N. The Unsolved Mystery of Pete Ellis. Marine Oorps
Gazette, v. 46, February, 1962: 34-40. VE7.M4
301
Pike, James. The Scout and Ranger. Cincinnati, J. R. Hawley and
Company, 1865. 394 p. E608.P63.
Pincus,~v alter. '!'he GOld VV ar Brought Home. New Republic, v. 168,
June 23,1973: 12-15. AP2.N624
--. How the FBI and CIA Played the Game. New Republic, v.
168, June 16, 1973: 19-23. AP2.N624
Pinkerton, Allan. The Spy of the Rebellion. New York, G. W. Carleton,
1886. 688 p. E608.P65 .
Planning Group on Intelligence and Security to the Policy CouncIl
of the Democratic National Committee. Surveillance and Espionage
in a Free Society. New York, Praeger Publishers, 1972. 319 p.
JK468.I6S95
Plum, William R. The Military Telegraph During the Civil War in
the United States. Chicago, Jansen, McClurg and Company, 1882.
390 p. E608.P73
Post, Louis. The Deportations Delerium of Nineteen-T1.oenty. Chicago,
Charles H. Kerr and Company, 1923.335 p. D570.8.A6P6
Powers, Francis Gary. Francis Gary Powers Tells His Story. New
York Times Magazine, April 19, 1970: 36-37,48, 52, 54-55, 57, 59,
62,69.
Powers, Thomas. The Government Is 'Vatching; Is There Anything
the Police Don't Want to Know? Atlantic, v. 230, October, 1972:
51-63. AP2.A8
Preston, William. Aliens and Dissenters: 1903-1933. Cambridge,
Harvard University Press, 1963. 352 p. E743.5.P7
Prouty, L. Fletcher. The Secret Team and the Games They Play. The
Washington Monthly, v. 2, May, 1970: 11-20. E838.W37
---. The Secret Team: The CIA and its Allies in Oontrol of the
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APPENDIX I
THE EVOLUTION AND ORGANIZATION OF FEDERAL INTELLIGENCE
INSTITUTIONS 1882-1975
1882
1885
1901
1902
1903
1908
1917
1918
1919
Office of Intelligence established within the Bureau of Navigation,
Department of the Navy, by administrative directive; first
permanent intelligence unit within the Navy.
Military Intelligence Division established within the Adjutant
General's Office, Department of War, by administrative directive;
first permanent intelligence unit within the Army. .
Philippine Military Information Bureau established withm
the United States Army by administrative directive; special
intelligence unit developed for use in the Philippine Islands
relying upon both overt information collection techniques and
undercover operatives.
Department of the Treasury Secret Service staff increased by
appropriation act (32 Stat. 120 at 140) for purposes of providing
protection to the President; origin of Secret Service intelligence
activities.
General Staff of the United States Army created (32 Stat. 830) ;
intelligence section (G-2) organized by administrative directive.
Intelligence section (G-2) of the General Staff, United States
Army, absorbed by the Army War College at the direction of
the Chief of Staff.
Bureau of Investigation established within the Department
of Justice by administrative directive; efforts to create such a
unit by statute had been rejected by Congress earlier in the
year and also during the previous year.
War Department Cipher Bureau (MI-8) created by administrative
directive; first permanent cryptology, code development
and code breaking unit within the armed services.
General John J. Pershing, commander of the American Expeditionary
Forces, establishes an intelligence section (G-2)
within his General Staff in Europe.
Intelligence section (G-2) of the General Staff, United States
Army, reconstituted and developed.
Code and Cipher Solution Section, Department of War, secretly
established, secretly funded, and maintained in New York City;
the unit became popularly known as the American Black Chamber
and was responsible for developing and breaking a variety
of codes, ciphers and cryptological messages for the War and
State Departments.
Intelligence Division, Bureau of Revenue, Department of the
Treasury established by administrative directive.
(309)
1920
1929
1936
1940
1941
1942
1945
1946
1947
1948
310
United States Marine Corps undergoes reorganization of headquarters
staff with the result that an Intelligence Section is
established within the Operations and Training Division.
American Black Chamber is dissolved at the direction of the
Secretary of State, Henry Stimson; the Department of State
was the principal financier, user, and beneficiary of the services
of the unit but Stimson, newly appointed, disapproved of its
activities, saying "Gentlemen do not read each other's mail."
Intelligence Division, United States Coast Guard, Department
of the Treasury, established by administrative directive; while
the Coast Guard had maintained a single intelligence officer
prior to this time, additional law enforcement dutIes and prohibition
era responsibilities prompted a major intelligence staff
increase at this time.
Intelligence Staff section (A-2) established within the United
States Army Air Corps by administrative directive.
Office of the Coordinator of Information e,<;tablished by a presidential
directive of July 11, 1941 ; the authority of the Coordinator
was "to collect and analyze all information and data which
may bear upon national security," to correlate such data and to
make it available in various ways to the President.
Office of Strategic Services established by military order of
June 13, 1942; the presidential directive of July 11, 1941 was
simultaneously cancelled.
Allied Intelligence Bureau established at the direction of General
Douglas MacArthur; the Bureau functioned during the
war as a coordinating and planning device for allied armed
forces in the Pacific Theater.
Office of Strategic Services terminated by E.O. 9621 of September
20,1945; functions transferred to the Departments of War
and State.
National Intelligence Authority and its staff arm, the Central
Intelligence Group, created by a presidential directive of January
22, 1946, for purposes of coordinating intelligence activities
and advising the President regarding same.
Atomic Energy Commission established (60 Stat. 755); responsible
for atomic energy intelligence regarding detection
and aSf'essment of worldwide atomic detonations and assessments
of the USe of atomic energy.
National Security Council, National Security Resources Board
(abolished 1953), and Central Intelligence Agency established
by National Security Act (61 Stat. 497).
Deputy Chief of Staff for Intelligence established within the
newly created Department of the Air Force (61 Stat. 497).
Office of Intelligence Research established within the Department
of State by administrative directive; renamed the Bureau
of Intelligence and Research in 1957.
Office of Policy Coordination established by secret National
Security Council directive NSC 10/2; responsible for covertaction
programs, the unit was abolished in 1951 and its functions
and personnel were transferred to the Central Intelligence
Agency.
311
Office of Special Operations established by action of the President
(possibly by secret directive) ; responsible for covert intelligence
collection, the unit was abolished in 1951 and its functions
were transferred to the Central Intelligency Agency.
1949 Armed Forces Security Agency established by a Department of
Defense directive for purposes of administering strategic communications-
intelligence functions, cryptology, code development
and code breaking, and coordination of similar activities
by other defense agencies; reorganized as the National Security
Agency in 1952.
1950 Intelligence Advisory Committee established (authority unclear)
; created at the urging of the Director of the Central Intelligence
Agency and functioned as an interdepartmental
panel composed of representatives of the major agencies having
intelligence responsibilities; absorbed by the United States Intelligence
Board in 1960.
1952 National Security Agency created by a classified presidential
directive of November 4, 1952; largely unacknowleged as a
government agency until 1957, NSA functions under the di.
rection, authority and control of the Secretary of Defense and
is responsible for coordinating, developing, and advancing
cryptological, code breaking, code development, and communications
intelligence activities.
1956 President's Board of Consultants on Foreign Intelligence Activities
established by E.O. 10656 of February 6, 1956, for purposes
of a civilian review of the foreign intelligence activities
of the Federal government; established in the wake of a
Hoover Commission report of 1955 recommending a joint congressional
oversight committee on intelligence activities which
was being considered by Congress.
1960 United States Intelligence Board established by a classified National
Security Council directive, assuming the functions of
the Intelligence Advisory Committee; the Board makes administrative
recommendations concerning the structure of the Federal
intelligence organization and prepares National Intelligence
Estimates for the National Security Council on specific
foreign situations of national security concern or a general international
matter.
1961 President's Foreign Intelligence Advisory Board established
by E.O. 10938 of May 4, 1961; successor to the President's
Board of Consultants on Foreign Intelligence Activities, the
panel advises the President on the objectives and conduct of
foreign intelligence and related activity by the United States.
Defense Intelligence Agency established by Department of Defense
Directive 5105.21 of August 1, 1961; coordinates armed
forces intelligence activities and provides direct intelligence assistance
to the Secretary of Defense and the Joint Chiefs of
Staff.
1968 National Intelligence Resources Board created at direction of
the Director of the Central Intelligence Agency; interagency
committee created to bring about economy within intelligence
activities and operations.
1971
1971
312
Intelligence Resources Advisory Committee created by the Director
of the Central Intelligence Agency; successor to the National
Intelligence Resources Board, the panel advises the
CIA Director on the preparation of a consolidated intelligence
program budget.
Net Assessments Group established by presidential announcement
of November 51 1971; responsible for analyzing United
States defense capabIlities vis-a-vis those of the Soviet Union
and the People's Republic of China.
Verification Panel established by presidential announcement of
November 5, 1971; responsible for intelligence pertaining to
the SALT talks.
Intelligence Committee, National Security Council, established
by presidential announcement of November 5, 1971; advises on
intelligence needs and provides for a continuing evaluation of
intelligence products from the viewpoint of the intelligence
user.
Forty Committee (also called the Special Group, the 5~12
Group, and the 303 Committee) continued (authority uncertain);
in existence since the earliest years of the Central Intelligence
Agency, the panel's membership varies but its func~
tion remains that of reviewing proposals for covert action.
Central Security Service proposed (established in 1972) in
presidential announcement of November 5, 1971; functions
under the direction of the head of the National Security
Agency who serves concurrently as Chief of the Service.
Defeme Investigative Service proposed (established by DoD
5105.42 of April 18, 1972) in presidential announcement of
November 5, 1971; new agency consolidates armed service and
Defense Department personnel investigation functions into
single entity.
Defense Mapping Agency proposed (established under the provisions
of the National Security Act of 1947, as amended, on
January 1, 1972) in presidential announcement of November 5,
1971; new agency consolidates armed service mapping activities
and operations.
APPENDIX II
GOVERNMENT INFORMATION SECURITY CLASSIFICATION POLICY
A democratic system of government, based upon popular power
ltnd popular trust, may both respect privacy, "the voluntary withholding
of information reinforced by a willing indifference," and
practice secrecy, "the compulsory withholding of knowledge, reinforced
by the prospect of sanctions for disclosure." Qualifications are
attached to these two conditions by legislatures, officers of government,
and the courts.
Both are enemies, in principle, of publicity. The tradition
of liberal, individualistic democracy maintained. an equilibrium
of publicity, privacy, and secrecy. The equilibrium
was enabled to exist as long as the beneficiaries and protagonists
of each sector of this tripartite system of barriers
respected the legitimacy of the other two and were confident
that they would not use their power and opportunities to
disrupt the equilibrium. The principles of privacy, secrecy
and publicity are not harmonious among themselves. The
existence of each rests on a self-restrictive tendency in each
of the others. The balance in which they co-exist, although
it is elastic, can be severly disrupted.; when the pressure for
publicity becomes distrustful of privacy, a disequilibrium results.
Respect for privacy gives way to an insistence on publicity
coupled with secrecy, a fascination which is at once an
abhorrence and a dependent clinging.1
The abuse of secrecy in matters of government can be attributed to
no one particular realm. Public servants, beyond the reach of the
electorate, however, may tend to misuse secrecy simply because they
are immune to any direct citizen reprisal. In this regard, one of the
first serious analysts of social organization, the sociologist Max Weber
(1864-1920), has commented: "Every bureaucracy seeks to increase
the superiority of the professionally informed by keeping their knowledge
and intentions secret." Perhaps a more important observation
for the American democratic experience is provided by Weber when
he notes:
The pure interest of the bureaucracy in power, however, is
efficacious far beyond those areas where purely functional
interests makes for secrecy. The concept of the "official
secret" is the specific invention of bureaucracy, and nothing
is so fanatically defended by the bureaucracy as this attitude,
1 Edward A. Shils. The Torment 01 Secrecv: The Background wnd Oonscquences
of American Security Policies. New York, The Free Press, 1956, pp.
26-27.
(313)
314
which cannot be justified beyond ... specifically qualified
areas. In facing a parliament, the bureaucracy, out of a sheer
power instinct, fights every attempt of the parliament to gain
knowledge by means of its own experts or from interest
groups. The so-called right of parliamentary investigation
is one of the means by which parliament seeks such knowledge.
Bureaucracy naturally welcomes a poorly informed and hence
a powerless parliament-at least in so far as ignorance somehow
agrees with the bureaucracy's interests.2
The extent to which a sovereign legislature allows a bureaucracy to
create "state secrets" on its own initiative and authority also contributes
to the abuse of government secrecy. In a democracy, the elected
representatives of the people must bear the responsibility of fixing the
basis for and creation of official secrets. As an extension of its lawmaking
power, the legislature must exercise authority to determine
that its information protection statutes are faithfully administered.
Under a constitutional arrangement such as that found in the American
Federal Government, care must be taken to divorce the use of
stnte secrecy from the separation of powers doctrine. Because information
has been designated an official secret, this condition should not
necessarily serve to justify the Executive's withholdin!!' of the data
from Congress. (See United States VS. Nimon, 418 U.S. 683, 706
(1974) ).
Ideally, all information held by a democratic government belongs
to the citizenry. However, for reasons of national defense, foreign relations,
commercial advantage, and personal privacy, some information
may require protection and, therefore, becomes a secret. Such a
limitation is not absolute: Congress, the Executive. and the courts
might, when circumstances so require, have access to official secrets and,
in time, efforts should be made to remove the secrecy restriction and
release the information in question to the public.
In addition, there are certain types of information which, in accordance
with the constitutional doctrine of the separation of powers, might
justifiably be retained exclusively within one branch of the Federal
Government. (See United States v. Nixon, 418 U.S. at 706.) Such a
class of information should be kept to a minimum and be withheld with
a considerate attitude. In brief, there are types of information which
may be protected from inspection hy otj'er branches of government as
well as from general public scrutiny. Again, such a restriction need not
be an absolute matter of policy; considerations of accountability, public
trust, criminal wrongdoing. or scholarly research needs may prompt
occasional exceptions to the rule. A type of information which may be
permissively prote"ted is soecified at present in the Freedom of Information
Act (5 U.S.C. 552) .
I. National Defense
Although members of the United States armed forces were. from
the time of the Revolution, prohibited from communicating with the
enemy and spying during war had similarly been condemned since
•
• H. H. Gerth and C. Wright Mills, I'd'!. From MalC Weber: Essays in Sociology
New York, Oxford University Press, 1946, pp. 233--234.
315
that time, no directives regarding the protection of information or
guarding against foreign military intelligence were issued until after
the Civil War. During the time of the rebellr-on, President Lincoln
placed strict governmental control over communications-the telegraph,
the mails, and, to a considerable extent, the press. The military
controlled communications and civilians within the shifting war zones:
A few years after the cessation of hostilities, the War Department
turned its attention to security procedures for peacetime. General
Orders No. 35, Headquarters of the Army, Adjutant GeneraFs Office,
issued April 13, 1869 read: "Commanding officers of troops occupying
the regular forts built by the Engineer Department will permit no
photographic or other views of the same to be taken without the permission
of the 'Var Department." Such language thus placed limited
information control at the disposal of the War Department. The substance
of this order was continued in compiled Army regulations of
1881, 1889, and 1895.4
Deteriorating relations with Spain and the possibility of open
warfare subsequently prompted more stringent security precautions.
A portion of General Orders No.9, Hdq. Army, A.G.O., issued
March 1,1897, directed:
No persons, except officers of the Army and Navy of the
United States, and persons in the service of the United States
employed in direct connection with the use, construction or
care of these works, will be allowed to visit any portion of the
lake and coast defenses of the United States without the written
authority of the Commanding Officer in charg-e.
Neither written nor pictorial descriptions of these works
will be made for publication without the authority of the
Secretary of War, nor will any information be given concerning
them which is not contained in the printed reports and
documents of the War Department.
Revised for inclusion in General Orders No. 52, War Department,
issued August 24, 1897, ~'the principal change was insertion of a paragraph
indicating that the Secretary of War would grant special permission
to visit these defenses only to the United States Senators and
Representatives in Congress who were officially corwerned therewith
and to the Governor or Adjutant General of the State where such
defenses were located" [emphasis addedV That the War Department
did not want to extend special defense facilities visitation permission
to any or all Members of Congress is evident. This policy of selective
congressional access to secret defense matters has continued, in various
forms, into the present period.
In 1898 there was the passage of a statute (30 Stat. 717) "to protect
the harbor defemes and fortifications constructed or used by the
• See James G. Randall. Oonstitutio1'l!al Problem8 Under Lincoln, Revi8ed Edition.
Urbana: University of Illinois Press, 1951, chapters III, IV, VII and XIX.
'Dallas Irvine. "The Origin of Defense-Information Markings in the Army
and former War Department" rtypescript.l Washington, National Archives and
Records Service, General Services Administration, 1964; under revision 1972, p. 3.
All references from revision typescript; military orders, regulations, and directives
referred to may be found in the annexes of this study.
• Ibid., p. 4. .
316
United States from malicious injury, and for other purposes." The
sanctions of this law provided that "any person who ... shall knowingly,
willfully or wantonly violate any regulation of the War Department
that has been made for the protection of such mine, torpedo, fortification
or harbor-defense system shall be punished ... by a fine of
not less than one hundred nor more than five thousand dollars, or
with imprisonment for a term not exceeding five years, or with both,
in the discretion of the court." The effect of this statute was that it not
only sanctioned War Department directives regarding the protection
of information, but also gave increased force to such orders by providing
criminal penalties for violations. The statute was published for
the information of the military in GenPTal Orders No. 96, War Department,
A.G.O., July 13, 1898.
Army regulations of 1901 continued the language of the 1897 order
with its provision for granting certain Members of Congress special
access to the coastal and lake defenses. New regulations in 1908 omitted
specific mention of congressional visitors and said:
Commanding officers of posts at which are located lake or
coastal defenses are charged with the responsibility of preventing,
as far as practicable, visitors from obtaining information
relative to such defenses which would probably be
communicated to a foreign power, and to this end may prescribe
and enforce appropriate regulations governing visitors
to their posts.
American citizens whose loyalty to their Government is
unquestioned may be permitted to visit such portions of the
defenses as the commanding officer deems proper.
The taking of photographic or other views of permanent
works of defense will not be permitted. Neither written nor
pictorial descriptions of these works will be made for publication
without the authority of the Secretary of War, nor will
any information be given concerning them which is not contained
in the printed reports and documents of the War
Department.
These portions of the 1908 rel!ulations (pars. 355 and 356) were continued
in regulations books of 1910 (pars. 358 and 359), (pars. 347 and
348), and 1917 (pars. 347 and 348). The language constitutes the first
open admission by the War Department of an effort to protect fixed
defenses al!ainst foreign military intelligence.6
Criminal sanctions for unlawful entry upon military property were
'extended in a codification statute (35 Stat. 1088-1159 at 1097) of
March 4, 1909. While the penalty provisions of the Act of July 7, 1898
(30 Stat. 717) were included in the law, another provision was added,
reading:
Whoever shall I!0 upon any military reservation, army post,
fort, or arsenal, for any purpose prohibited by law or military
regulation made in pursuance of law, or whoever shall reenter
or be found within any such reservation, post, fort, or arsenal,
after having been removed therefrom or ordered not to reenter
by any officer or person in command or charge thereof,
e Ibid., p. 7.
317
shall be fined not more than five hundred dollars, or Imprisoned
not more than six months, or both.
Although supposedly based upon the provisions d the 1898 statute,
in the words of one expert in this policy sphere,
this language was so amplified as to amount virtually to new
legislation. The new language tends to divert attention to what
the earlier act had referr~d to by means of the word "trespass."
Attention therefore needs to be called to the fact that
the new language as well as the old effectively gave the force
of law, with imposed penalty for violation, to the provisions
of current Army regulations about photographs and written
or pictorial descriptions of seacoast defenses and about local
regulations to prevent visitors from obtaining information
for a foreign power.
In view of the pertinent content of current Army regulations
[this] section ... from the Criminal Code of 1909 may
be regarded as the first very good approximation of legislation
against espionage in time of peace. The act of 1898, even
in the light of then current Army regulations, can be argued,
from its text, to be directed more against sabotage than
against espionage.7
The provision was also incorporated, without change, in the United
States Code of 1925.
The first complete system for the protection of national defense information,
devoid of special markings, was promulgated in General
Orders No.3, War Department, of February 16, 1912. This directive
set forth certain classes of records which were to be regarded as "confidential"
and, therefore, kept under lock, "accessible only to the officer
to whom intrusted." Those materials falling into this category included
submarine mine projects and land defense plans. "Trusted employees"
of the War Department, as well as "the officer to whom intrusted,"
might have access to "maps and charts showing locations on
the ground of the elements of defense, of the number of guns, and of
the character of the armament" and "tables giving data with reference
to the number of guns, the character of the armament, and the war
supply of ammunition."
Serialnumbers were to be issued for all such "confidential" information
with the number marked on the document(s) and lists of the
records kept at the office from which they emanated. Within one year's
time officers responsible for the safekeeping: of these materials were to
check on their location and existence. WhIle available to all commissioned
officers at all times, "confidential" information was not to be
copied except at the office of issue.
The language of [these] instructions . . . was incorporated
(par. 94, p. 216) in the Oompilation of General Orders, Oircul4rs,
and Bulletins of the War Department Issued Between
Febrwary 15, 1881, and December 31, 1.915 (Washington,
1916). The paragraph of this compilation in which the instructions
were carried was rescinded by Changes in Com-
7 Ibid., p. 8.
318
pilation of Orders No. 35, October 1, 1922, which referred to
superseding pamphlet Army Regulations 90-40. The latter
had been issued on May 2, 1922 under the headings "Coast
Artillery Corps. Coast Defense Command." The comparable
language appeared in Paragraph 17, "Safe-keeping of military
records concerning seacoast defenses." It was generally
similar to the language previously in effect, but specified that
the h"m major categories of records involved should be classed
as SECRET and CONFIDENTIAL, respectively. These
markings by that time had special meanings elsewhere
prescribed.s
Until the turn of the century, policy directives concerned with the
protection of national defense information were confined to coastal
and lake fortifications materia1. This should not necessarily indicate
that only documents having to do with these matters were protected
under such regulations.
On October 3, 1907 the Chief of Artillery invited the attention
of The Adjutant General ... to the fact that the
word "confidential" was being used without any prescribed
meaning as a marking on communications and printed issuances.
He pointed out the ridiculousness of the situation by
citing examples, including one issuance marked "Confidential"
that contained merely formulas for making whitewash.
In his stated opinion there should be some way of indicating
degree of confidentiality, some time limit on the effect of a
marking whenever practicable, and requirement of an annual
return of confidential materials in the possession of particular
officers. He proposed the establishment of four degrees of confidentiality
that can be approximated by the following
expressions:
1. For your eyes only
2. For the information of commissioned officers only
3. For official use only
4. Not for publication 9
Additional communication on this matter elicited a response from
the Chief Signal Officer that printed issuances, such as manuals and
instruction books, contained instructions on their dissemination. An
example of this type of control prescription was cited from a Signal
Corps manual: "This Manual is intended for the sole personal use of
the one to whom it is issued, and should not under any circumstances
be transferred, loaned, or its contents imparted to unauthorized
persons."
The matter was subsequently referred to the Chief of Staff who
presented the suggestions to the Acting Secretary of 'Val'. In a memorandum
of November 12, 1907, Major General William P. Duvall,
Assistant to the Chief of Staff
indicated that the idea of setting time limits on the confidentiality
of particular items was hardly practicable and that
8 Ibid., p. 11.
~ Ibid., pp. 11-12; original letter contained in Annex E of Ibid.
319
the idea of having returns made of specially protected material
was undesirable because it would be too complicated in
application. The memorandum agreed that the marking
"Confidential" should have a prescribed meaning equivalent
to "For your eyes only" but went along ,,,ith the remarks to
the Chief Signal Officer in proposing that materials intended
to be available only to a certain class or classes of individuals
should be "marked so as to indicate to whom the contents may
be communicated." 10
As a consequence of this memorandum and an attached draft circular
on the whole matter, Circular No. 78, War Department, of November
21,1907, in part, addressed itself to altering policy on this area.
The first paragraph prohibited further indiscriminant use
of the marking "Confidential" on communications from the
War Department and permitted its uSe on such communications
only "where the subject-matter is intended for the sole
information of the person to whom addressed." The second
paragraph, dealing with internal issuances, required that
they be accompanied by a statement indicating the class or
classes of individuals to whom the contents might be disclosed.
The third paragraph listed five internal issuances that
were not to be considered confidential any longer. The fourth
paragraph indicated that internal serial issuance marked
"Confidential" in the past were for the use of Army officers
and enlisted men and Government employees "when necessary
in connection with their work." 11
It has been observed that this circular was not actually concerned
explicitly with defense information, but rather with internal communicatIOns
and publications of the military. As the first such directive
addressed to these matters, it marks the beginning of a policy of
protecting internal documents for reasons of national defense.
"Second, it placed reliance for any necessary protection of the content
of internal issuances, not on jargonized stamped words or expressions,
but on an accompanying statement of what was intended in the
case of a particular issuance." In brief, the authority of a protective
label was not acceptable for safeguarding internal documents. The
technique of utilizing an explanatory statement on these materials
served to maintain a rational and self-evident policy for safeguarding
internal information.
Third, the provision pertaining to use of the marking "Confidential"
was unclear in that it did not identify any class of information
to which the label might be applied. The directive only served notice
that this marking could not be used on internal documents. No meaning
was prescribed for the term "Confidential" as used in written
and/or verbal discourse. And the thrust of the circular with regard to
the proper use of the marking related not to the content or origin of
the information in question but rather to the intended recipient.12
10 Ibid., p. 13.
11 Ibid., p. 14.
u Ibid-., p. 17; original memorandum contained in Annex H of Ibid.
320
The provisions of Circular No. 78 were not included in Army regulations
of 1908, 1910, 1913, or 1917. It did appear in the Oompilation
of General Orders, Circnlars, and Bulletim ... issued in 1916 (par.
176). This anonymity, together with the confusion already noted with
regard to the use of the marking "Confidential", would tend to reflect
that the directive had little impact in curtailing the improper use of
the "Confidential" label.
On May 19, 1913, the Judge Advocate General sent a communique
to the Chief of Staff wherein he proposed additional regulations for
the handling of confidential communications, saying:
Telegrams are inherently confidential. Outside of officials
of a telegraph company, no one has authority to see a telegram,
other than the sender and receiver, except on a subpoena
duces tecum issued by a proper court.
A commanding officer of a post where the Signal Corps has
a station has no right to inspect the files of telegrams, at least
files other than those sent at government expense.
The record of the Signal Corps operators is excellent. I
consider the enlisted personnel of the Signal Corps superior
to that of any other arm. The leaks that occur through the
inadvertence or carelessness of enlisted men of the Signal
Corps are few in number. Those occurring through intention
on the part of these men are fewer still. In my opinion leaks
most frequently occur through the fault of officers in leaving
confidential matters open on their desks where others may
read as they transact other businessY
The Judge Advocate General's suggestions resulted in Changes in
Army Regulations No. 30, War Department, issued June 6, 1916, and
reading:
In order to reduce the possibility of confidential communications
falling into the hands of persons other than those for
whom they are intended, the sender will enclose them in an
inner and an outer cover; the inner cover to be a sealed envelope
or wrapper addressed in the usual way, but marked
plainly CONFIDENTIAL in such a manner that the notation
may be most readily seen when the outer cover is removed.
The package thus prepared will then be enclosed in
another sealed envelope or wrapper addressed in the ordinary
manner with no notation to indicate the confidential nature
of the contents.
The foregoing applies not only to confidential communications
entrusted to the mails or to telegraph companies, but
also to such communications entrust{'o to messengers passing
between different offices of the same headquarters, including
the bureaus and offices of the War Department.
Government telegraph operators will be held responsible
that all telegrams are carefully guarded. No received telegram
will ever leave an office except in a sealed envelope,
properly addressed. All files will be carefully guarded and
l3lbid., p. 17; original memorandum contained in Annex H Ibid.
321
access thereto will be denied to all parties except those authorized
by lawto see the same.
An examination of The Oode of La'W8 of the United States of America
in Force December 6, 19~6 (44 Stat. 1-2452) does not readily reveal
any specification of officials granted the authority to examine telegraph
or telegram files. It is possible that this power is indirectly
conferred by some statutory provision or that the last line of the
above directive is of a prospective nature.
It has also been suggested that Changes in Army Regulations No.
30 of 1916 was issued in ignorance of Circular No. 78 of 1907 which
was discussed earlier.14 This situation most likely resulted from the
somewhat fugitive nature of Circular No. 78.
II. World War I
On April 6, 1917 the United States declared war on Germany, (40
Stat. 1). This action prompted new regulations to protect national
defense information. Mobilization was begun immediately and the
first American troops arrived in France in late June. It was also at
this juncture that the American military, working with their French
and British allies, had an opportunity to observe the information
security systems of other armies.
November 22, 1917, General Orders No. 64, General Headquarters,
American Expeditionary Force, was issued on the matters of the protection
of official information. This directive established three markings
for information, saying:
"Confidential" matter is restricted for use and knowledge
to a necessary minimum of persons, either members of this
Expedition or its em~loyees.
The word "Secret' on a communication is intended to limit
the use or sight of it to the officer into whose hands it is delivered
by proper authority, and, when necessary, a confidential
clerk. With such a document no discretion lies with the
officer or clerk to whom it is delivered, except to guard it as
SECRET in the most complete understanding of that term.
There are no degrees of secrecy in the handling of documents
so marked. Such documents are completely secret.
Secret matter will be kept under lock and key subject to
use only by the officers to whom it has been transmitted. Confidential
matter will be similarly cared for unless it be a part
of officer records, ~nd necessary to the entirety of such records.
Papers of thIS class will be kept in the office files, and
the confidential clerk responsible for the same shall be given
definite instructions that they are to be shown to no one but
his immediate official superiors, and that the file shall be
locked except during office hours.
Orders, pa~phlets of instructions, maps, diagrams, intelligence
pubhcatlons, etc., from these headquarters ... which are
for ordinary official circulation and not intended for the
public, but the accidental possession of which by the enemy
would result in no harm to the Allied cause j these will have
l' Ibid., p. 19.
322
printed in the upper left hand corner, "For Official Circulation
Only."
. . . Where circulation is to be indicated otherwise than
is indicated . . . [above] ... there will be added limitation
in similar type, as :
Not to be taken into Front Line Trenches.
Not to be Reproduced.
Not to go below Division Headquarters.
Not to go below Regimental Headquarters.
Commenting on this prescription, one authority has noted:
This order itself makes clear that the markings "Confidential"
and "Secret" were already in use, for it says "There
appears to be some carelessness in the indiscriminant use of
the terms 'Confidential' and 'Secret'." This previous usage
was undoubtedly taken over from the French, who used these
two markings, often with added injunctions such as "not to
be taken into the first line." The British also had a marking
"For official use only." 15
In early December, 1917, a proposal was advanced by the Acting
Chief of the War College Division, War Department General Staff,
Col. P. D. Lockridge, regarding the use of information markings. The
matter prompting this communique to the Chief of Staff was seeming'ly
some concern that markings being' utilized by the A.E.F. be
officially authorized and supervised within units of War Department
jurisdiction outside of the Expeditionary Force command. It would
also seem that "Secret," "Confidential," and other protective labels
were already in use among other military divisions. Obtaining quick
approval from the Acting Chief of Staff, Lockridge's suggestion was
next acted upon by the Adjutant General's Office which decided to
incorporate it in Changes in Compilation of Orders No.6, War
Department, issued December 14, 1917. "In view of the importance of
the matter, unnumbered and undated advance copies of the intended
issuance were distributed, and a printed 'extract' of the regular printed
issuance was subsequently given wide circulation." 16
The directive outlined the conditions under which "Secret," "Confidential,"
and "For Official Use Only" markings were to be utilized.
Materials designated "Secret" would not have their existence disclosed
but those labeled "Confidential" might circulate "to persons known to
be authorized to receive them." The third marking was designed to
restrict information from communication to the public or the press.
In addition, the order contained the following proviso: "Publishing
official documents or information, or using them for personal controversy,
or for private purpose without due authority, will be treated
as a breach of official trust, and may be punished under the Article
of War, or under Section I, Title I, of the Espionage Act [40 Stat. 217]
approved June 15, 1917."
This reference to both the Articles of War and the Espionage
Act thoroughly confuses the purpose of the issuance. While
11 Ibid., p. 26.
Ie See Ibid., pp. 26--27.
323
the Articles of War contained provisions against corresponding
with the enemy and against spying, the reference here can
only be to the provisions of the Articles of War against
disobedience of orders and miscellaneous misconduct. Section
1, Title I, of the Espionage Act, on the other hand, was
very comprehensive with respect to any mishandling of
"information respecting the national defense." If that section
alone had been referred to, the implication would have been
that the new issuance related entirely to defense information.
Inclusion of the reference to the Articles of War makes it
possible to argue that the marking "For official use only" was
not intended to apply exclusively to defense information and
that the intention with respect to the marking "Confidential"
is hardly clearY
The thrusts of the Espionage Act of 1917, and the Act of 1911 (36
Stat. 1084) prohibiting the disclosure of national defense secrets, wer<l
toward the regulation and punishment of espionage. Neither statute
specifically sanctioned the information protection practices of the Wal'
Department or the armed forces, nor were the orders and directives
of these entities promulgated pursuant to these laws. The markings
prescribed for the use of the military were designed for utilization
on internal communications and documents. With the passage of the
Trading with the Enemy Act (40 Stat. 411) provision was made (40
Stat. 422 § 10(i)) for the President to designate patents, the publication
of which might "be detrimental to the public safety or defense,
or may assist the enemy or endanger the successful prosecution of the
war," to be kept secret. No label was devised for this action. Quite the
contrary, the means provided for maintaining this secrecy was to
"withhold the grant of a patent until the end of the war." This would
appear to be the first direct statutory grant of authority to the Executive
to declare a type of information secret. Also, although the
provision pertained to defense policy, utilization of this authority was
placed in civilian, not military hands.
There is speculation that reference to the Espionage Act was made
in CompilatlOn of Orders No.6 to emphasize the precautions for safeguarding
defense information upon a wartime army composed of new
recruits at all ranks.
There is no indication that there was any realization at this
time that difficulties could arise in enforcing the Espionage
Act if official information relating to the national defense was
not marked as such, insofar as it was intended to be protected.
from unauthorized dissemination. Violation of the first three
subsections of Section I, Title I, of the act depended in the
one case on material relating to the national defense having
been turned over to someone not entitled to receive it" and in
the other case on such material having been lost or compr<r
m~d through '~gross negligence." Since the expression "relatmg
to the natIonal defense" was nowhere defined the possibility
of the public being permitted to have any authenticated
knowledge whatever about the national defense, even the fact
1'1 Ibid., pp. 28-29.
324
that Congress had passed certain legislation related thereto,
depended on application of the expressions "not entitled to receive
it" and "gross negligence."
In any prosecution for violation of either of the last two subsections
the burden of proving that one or the other key expression
had application in the case would rest on the prosecution,
and proof would be difficult unless clear evidence could
be adduced that authority had communicated its intention
that the specific material involved 'should be protected or unless
that material was of such a nature that common sense
would indicate that it should be protected. For purposes of
administering these two subsections of the Espionage Act the
marking of defense information that is to be protected is almost
essential, and its marking can also be of great assistance
for purposes of administering the preceding three subsections.
It would be logical to suppose that the marking of defense
information began out of legal necessities for administering
the Espionage Act, but the indications are that such was not
the case. The establishment of three grades of official information
to be protected by markings was apparently something
copied from the A.E.F., which had borrowed the use of such
markings from the French and British.Is
III. PeMetime Protection
Changes in military regulations governing the protection of sensitive
information did not occur until well after the armistice and return
of American troops from Europe. On January 22, 1921 the War Department
issued a pamphlet (Army Regulations No. 330-5) entitled
"DOCUMENTS: 'Secret,' 'Confidential,' and 'For Official Use Only,' "
which, with slight modification, constituted a compilation of the wartime
information regulations which were to remain in force during
peacetime. Its essential provisions. with reg-ard to the utilization of
the classification markings, were that (1) "Secret" was to be used on
information "of great importance and when the safeguarding of that
information from actual or potential enemies is of prime necessity;"
(2) "Confidential" pertained to material "of less importance and of
less secret nature than one requiring the mark of 'Secret,' but which
must, nevertheless, be g-uarded from hostile or indiscreet persons;" and
(3) "For official use only" had reference to "information which is not
to be communicated to the public or to the press, but which may be
communicated to any person known to be in the service of the United
States whose duty it concerns, or to persons of undoubted loyalty and
discretion who are cooperating with Government work."
A basic shortcomin~ of these regulations would seem to be the inferred
unspecific Qualitative nature of the instruction pertaining to
the use of "Confidentia1." The presumntion is that reg-ulations pertaining
to the use of the "Secret" marking are sufficiently clear that
material warranting this desip'nation might be easily distinguished
from that in the "Confidential" category and that the person affixing
"Confinential" to a document had some qualitative familiarity with
"Secret" information. Another fault of this directive
18 Ibid., pp. 31--32.
325
is its failure to relate itself to the Espionage Act of 1917 or to
limit itself to defense information. It merely provided for the
continuation of a system of markings that had been established
in war time. This system was not a product of any
thoughtful consideration of the general problem of protecting
defense information and other official information. It was
a result of reflex response to immediate necessities arising in
the prosecution of the war.19
Two commendable aspects of the instructions, in terms of subsequent
policy developments, were the inclusion of the name, authority,
and date of the affixing officer classifying a document and provisions
for the cancellation of a mark at a later time. These points served to
emphasize that responsibility must be personally borne for restricting
information, that limitation must be carried out under established
authority of some type, and that a time might arise when the protection
was no longer warranted, desirable, or needed.
Between 1921 and 1937 the regulation underwent various modifications
and changes. Only two major policy shifts appear to have occurred
during these revisions. A February 12, 1935 edition of the
pamphlet introduced "Restricted," a fourth marking designed to protect
"research work or the design, development, test, production, or
use of a unit of military eQuipment or a component thereof which it
is desired to keep secret," The provision further noted that the class
of information which this new label was designed to safeguard "is considered
as affecting the national defense of the United States within
the meaning of the Espionage Act (U.S.C. 59 :32)." The instructions
regarding the other three information markings still contained no
reference to the Espionage Act.
The following year, Army regulations of February 11, 1936, omitted
"For Official Use Only" and redefined the other markings. Of particular
interest is the broadened understandings of the type of information
to which these labels might be applied. including foreign policy material
and what might be properly called "political" data. "Secret"
referred to information "of such nature that its disclosure might endanger
the national security, or cause serious injury to the interests
or prestige of the Nation, an individual, or any government activity,
or be of great advantage to a foreign nation." Similarly, "Confidential"
could be applied to material "of such a nature that its disclosure,
althouP'h not endangering the national security, might be prejudicial
to the intel'(~sts or prestige of the Nation, an individual, or any gover~
ment activitv, or be of advantage to a foreign nation." And "Restncted"
might 00 used in instances where information "is for official
use only or 'of such a nature that its disclosure should be limited for
reasons of administrative privacy, or should be denied the general
nublic." The outstanding characteristic of these provisions is their
broacl clisf'retionarv nature with regard to subjects of application.
'While initial regulations were designecl to safeguard coastal defense
facility information, 1936 saw the possibility of information restriction
policv extending to almost anv area of governmental activity.
Such regulations were promulgated without any clear statutory au-
,. Ibid.• p. 34.
326
thority. Even the Espionage Act was designed for wartime use. Yet,
under armed forces directives governing information protection during
the late 1930s, "to reveal secret, confidential, or restricted matter
pertaining to the national defense is a violation of the Espionage Act,"
according to Army regulations of 1937.
In Changes in Navy Regulations and Naval Instructions No.7 of
September 15, 1916, that service had gone so far as to prescribe that
"Officers resigning are warned of the provision of the national defense
secrets act," implying that former Naval personnel returned to civilian
life could not, without subjecting themselves to prosecution, discuss
information which had been protected under Navy regulations. The
violation in question would involve the 1911 secrets law (36 Stat.
1084), not the Navy's directives on the matter. The point is an interesting
one in that it illustrates armed forces regulations pertaining to the
protection of information, though not promulgated in accordance with
a statute, enjoyed the color of statutory law for their enforcement.
The omission of "For official use only" from Army regulations in
1936 raises another ponderable: to what extent was this referent used
after that date. Habits are difficult to break, perhaps more so in the
framework of military regimen. The label had been used since the establishment
of the A.E.F. in France. Were the old stamps kept, used,
obeyed? To what extent were other markings fabricated and applied:
"private," "official," "airmen only." No informative response can be
made to this question. The point is that by the late 1930s, restriction
labels knew no bounds: they could be applied to virtually any type of
defense or non-defense information; they pertained to situations involving
"national security," a policy sphere open to definition within
many quarters of government and by various authorities; and they carried
sanctions which left few with any desire to question their appropriateness
or intention.
If, in terms of the multiplicity of policy areas to which they could
be applied, the significance of a system of information control markings
came to be realized within the higher reaches of government leadership.
it is not surprising that the management of these matters should
be seized by the very highest level of authority within the Executive
Branch. There were, of course, political advantages, but the dictates
of good administration also prompted such action. The first presidential
directive on the matter (E.O. 8381), issued March 22, 1940,
was purportedly promulgated in accordance with a provision of a 1938
law (52 Stat. 3) which read:
Whenever, in the interests of national defense, the President
defines certain vital military and naval installations or equipment
as rectuiring protection against the general dissemination
of information thereto. it shall be unlawful to make
any photograph. sketch. picture. drawing, map. or graphical
representation of such vital military and naval installation or
equipment without first obtaining permission of the commanding
officer.
Utilizing the provision regarding "information relative thereto." the
President authorized the use of control labels on "all official military
or naval books, pamphlets, documents. reports, maps, charts, plans, de327
signs, models, drawings, photographs, contracts or specifications which
are now marked under the authority of the Secretary of War or the
Secretary of the Xayy as 'secret,' 'confidential,' or 'restricted,' and all
such articles or equipment which may hereafter be so marked with the
approyal or at the direction of the President." Commenting on this
situation, one authority has noted:
Congress, in passing the act of January 12, 1938 [52 Stat. 3],
can hardly have expected that it would be interpreted
to be applicable to documentary materials as "equipment."
. . . The Provisions of the Executive order were probably
a substitute for equivalent express provisions of law that
Congress could not be expected to enact. Mention may be
made in this connection of the refusal of Congress, long after
the attack on Pearl Harbor, to pass the proposed War Security
Act submitted to Congress by Attorney General
Francis Biddle on October 17, 1942 (H.R. 1205, 78th Congress,
1st Session).20
Noteworthy, as well, is the wholesale adoption of the broad definitions,
prescribed by the armed forces, of the types of policy to which
these markings might be applied. Revision or modification of these
jurisdictions or the scope of label applications remained, essentially,
with the officers of the War and Navy Department. No civilian control
was provided over the frequency or appropriate use of the labels.
It was apparently presumed that the markings would be utilized only
by the armed services.
IV. WO1'ld War II
With the advent of the Second World War, more widespread use of
an information protection system was required. In addition, large
numbers of civilians would be responsible for its administration and
operation. Approximately one year after the entry of the United
States into the hostilities it became necessary to establish governmentwide
regulations regarding security classification procedures. The
principal instrumentality issuing directives on this matter was the
Office of War Information. Established (E.O. 9182) on June 13, 1942
as a unit within the Office for Emergency Management, the War
Information panel consisted of the consolidated Office of Facts and
Figures, Office of Government Reports, Division of Information of
the Office for Emergency Management, and segments of the Foreign
Information Service. It operated until its abolition (E.O. 9608) on
August 31,1945, when its peacetime functions were transferred to the
Bureau of the Budget and the Department of State.21
On September 28, 1942, the Office of War Information issued Regulation
No.4 governing the administration and use of security classification
markings on sensitive documents. It is not known how this
directive was circulated, but it was not published in the Federal
Register. The authority under which it was promulgated is also of
"" Ibid., pp. 48-49.
n For general information on the Office of War Information see: Harold
Childs, ed. "The Office of War Information. Public Opinion quarterl1l, v. 7,
Spring, ]943: entire issue; Elmer Davis and Byron Price. War Information ana
Censorship. Washington, American Council on Public Affairs, 1943.
328
uncertain origin. Nevertheless, in addition to provisions warning
against overclassification and the proper identification, handling, and
dissemination of sensitive information, the instrument defined three
categories of classification: 22
Secret Information is information the disclosure of which
might endanger national security, or cause serious injury to
the Nation or any governmental activity thereof.
Oonfidential Information is information the disclosure of
which although not endangering the national security would
impair the effectiveness of government activity in the prosecution
of war.
Restricted Information is information the disclosure of
which should be limited for reasons of administrative privacy,
or is information not classified as confidential because the
benefits to be gained by a lower classification, such as permitting
wider dissemination where necessary to effect the
expedition's accomplishment of a particular project. outweigh
the value of the additional security obtainable from the higher
classification.
On May 19, 1943, Office of War Information Supplement No.1 to
Regulation No.4 was issued, prescribing the establishment of the
Security Advisory Board.23 Composed of armed services officers, this
unit according to the directive creating it, functioned as "an advisory
and coordinating board in all matters relating to carry out the provisions
of OWl Regulations No.4." Again, the authority for promulgating
the supplementary instrument and the operating authority of
the Board are not clear.
After the end of WorId W'ar II, the SAB continued to
function as a part of the State-War-Navy Coordinating Committee-
Iater the State-Army-Navy-Air Force Coordinating
Committee. On March 21, 1947, provisions of Executive Order
9835 directed the SAB to draft rules for the handling
and transmission of documents and information that should
not be disclosed to the public. A preliminary draft was completed
by the SAB but were not issued before the SAB and its
parent coordinating committee went out of existence.
After enactment of the National Security Act in 1947 [61
Stat. 4951 which created the National Security Council
(NSC), the NSC was given responsibility to consider and
study security matters, which involve many executive departments
and agencies. and to make recommendations to the
President in this vital area. The Interdepartmental Committee
on Internal fl.ecnrity (ICIS) was subsequently created
and the activity of this committee was, according to the
Wright Commission [on Government Security established in
III A copy of the directive is in the files of the Bouse Government Information
and Individual Rights Subcommittee.
III Ibid.
329
1955] report, responsible for issuance of Executive Order
10290 in 1951.24
Prior to the appearance of the 1951 directive, President Truman
promulgated, pursuant to the opening provision of the 1938 defense
installations protection law [52 Stat. 3], E.O. 10104 which replaced
E.O. 8381 issued by President Roosevelt in accordance with the same
authority. Authorization for the same three security classification
markings was continued and the new instrument also "formalized the
designation 'Top secret,' which had been added to military regulations
during the latter part of World War I to coincide with classification
levels of our allies." 25 Supervisory authority for carrying out
the provisions of the order was vested in the Secretary of Defense and
the three armed services secretaries.
It is important to emphasize that through the historical period
of the use of classification markings described thus far
until 1950, such formal directives, regulations, or Executive
orders applied to the protection of military secrets, rarely
extending- into either those affecting nonmilitary agencies or
those involving foreign policy or diplomatic relations. One
exception is in the area of communications secrecy, governed
by section 798 of the Espionage Act. This law, which protects
cryptographic systems, communications intelligence information,
and similar matters, applies, of course, to both military
and nonmilitary Federal agencies such as the State Department.
Aside from more restrictive war-time regulations, nonmilitary
agencies had, until 1958, relied generally on the
1789 "housekeeping" statute . . . as the basis for withholding
vast amounts of information from public disclosure.26
On September 24, 1951, through the issuance of E.O. 10290, President
Truman extended the coverage of the classification system to
nonmilitary agencies which had a role in "national security" matters.
The directive cited no express constitutional or statutory authority
for its promulgation. Instead, the Chief Executive seems to have relied
upon implied powers such as the "faithful execution of the laws"
clause. Although these postures for the order were generally recognized
and accepted as a legitimate basis for issuing such an instrument,
the President's role in the matter was felt to have limitations as well.21
Foremost among these i:: the well settled rule that an Executive
order, or any other Executive action, whether by formal
order or by reg-ulation, cannot contravene an act of Congress
which is constitutional. Thus, when an Executive order collides
with a statute which is enacted pursuant to the constitutional
authority of the Congress, the statute will prevail
.. U.S. Congress. Honse. Committee on Government Operations. Ea:eoutive
ClasBification ot Informatiotlr-Securitll Classification Problems InvoZving Ea:emtion
(b) (1) of the Freedom of Information Act (5 u.s.a. 552). Washin.!cton,
U.S. Govt. Print. Off., 1973. (93rd Congress, 1st Session. House. Report No. 221),
p.8.
III Ibid,.
.. Ibid.• pp. 8-9.
1'1 See U.S. Congress. House. Committee on Government Operations. Safeguard·
ing OtftciaZ Information in the Interests of the Defense Of the United States.
Washington, U.S. Govt. Print. Off., 1962. (87th Congress, 2d session. House.
Report no. 2456), pp. 29--31
330
[Kendall v. United State8, 12 Peters 524 (1838)]. This rule,
in turn, gives rise to a further limitation which finds its
source in the power of the Congress to set forth specifically
the duties of various officers and employeesof the executive
branch. Since the President can control only those duties of
his subordinates which are discretionary, to the extent that
the Congress prescribes these duties in detail, these officials
can exercise no discretion and their actions cannot be controlled
by the President. In other words, if the Congress enacts
a statute which is constitutionally within its authority,
the President cannot lawfully, either by Executive order, regulation,
or any other means, direct his subordinates to disobey
that statute, regardless of whether it affects third
persons or whether it is only a directive concerning the management
of the executive branch of the Government.28
The legal justification for the program does not appear as barren
as the fore~oingseems to imply. Not only have Constitutional grounds
(Article II) been put forward to justify the power of the President
to establish a classification program, but statutory authority has been
inferred from a number of laws, notably the Freedom of Information
Act (5 U.S.C.A. 552, as amended by Public Law 93-502), the espionage
laws (18 U.S.C.A. 792 et seq., notably sections 795 and 798), the
Internal Security Act of 1950 (50 U.S.C.A. 783(b)), and the 1947
National Security Act (61 Stat. 495).28&
Congress might attempt to overturn an Executive order by rescinding
it or by possibly offering alternative language supplanting or
amending the directive (though there would seem to be a constitutional
conflict in such a course of action in the case of E.O. 10290).
Thus, on September 28, 1951, Senator John W. Bricker (R. Ohio)
introduced S. 2190 which provided for the repeal of the directive, but
the bill failed to receive any consideration.29 The order thus remained
in effect until 1953.
When President Eisenhower took office in January 1953,
he took notice of the widespread criticism of Executive Order
10290 and requested Attorney General [Herbert] Brownell
for advice concerning its rescission or revision. On June 15,
1953, the Attorney General recommended rescission of the
Executive order and the issuance of a new order which would
"protect every requirement of national safety and at the same
time, honor the basic tenets of freedom of information."
That fall, President Eisenhower replaced the controversial
Truman order with Executive Order No. 10501, "Safeguarding
Official Information in the Interests of the Defense of the
United States." This order, issued on November 5, 1953, became
effective on December 15, 1953; it was amended several
.. Ibid., PP. 31-32.
... "Developments in the Law-the National Security Interest and Civil Liberties,"
Harvard Law Review, v. 85, 1972, pp. 1130-1198. For judicial recojffiition
of these provisions as plausible justification for a documentation classification
program, see the concurring opinion of Mr. Justice Marshall in New York TimelJ
00. vs. United States, 403 U.S. 713, 740,741 (1971) .
.. See Ibid., pp. 33-35.
331
times in the succeeding years, but for almost twenty years
served as the basis for the security classification system until
it was superseded in March 1972.30
It became necessary for the Eisenhower Administration and its successor
to issue clarifying directives and new orders relative to E.O.
10501 over the next decade. The additions included:
Memorandum to Executive Order 10501 (24 F.R. 3779)
dated November 5, 1953, specified 28 agencies without original
classification authority and 17 agencies in which classification
authority is limited to the head of the agency.
Executive Order 10816 (24 F.R. 3777), issued May 7, 19'59.
This order accomplished the following:
Under Executive Order 10290 (September 24, 1951) all
Government agencies had authority to classify information.
Executive Order 10501 canceled this authorization for those
agencies "having no direct responsibility for national defense,"
but was silent on the problem of declassifying any
information which agencies with no direct defense responsibility
had classified previously. The new order clarified the
hiatus which had existed.
Under section 7 of Executive Order 10501 only persons
whose official duties were in the interest of "promoting national
defense" had access to classified information. It was
discovered that this excluded persons who wished to examine
documents while carrying out bone fide historical research.
The new order allowed access to classified information to
trustworthy persons engaged in such research projects, provided
access was "clearly consistent with the interests of
national defense."
The new order allowed the transmission of "confidential"
defense material within the United States by certified and
first-class mail, in addition to the original authorization to use
registered mail.
Memorandum to Executive Order 10501 (24 F.R. 3777),
dated May 7, 1959, added 2 agencies to the 28 agencies previously
designated by the President as having no authority
to classify information under Executive Order 1050l.
Memorandum to Executive Order 10501 (25 F.R. 2073),
dated March 9, 1960, provided that agencies created after
November 5, 1953 (date of issuance of Executive Order
10'501), shall not have authority to classify information under
the Executive order unless specifically authorized to do so. In
addition, the memorandum listed eight such agencies which
were granted authority to classify defense material.
Executive Order 10901 (26 F.R. 217), dated January 9,
1961, adopted a "positive" approach to the authority to con·
trol national defense information. Prior to this revision, all
Government agencies except those specifically listed, could
stamp "Top secret," "Secret," or "Confidential" on the information
they originated. Executive Order 10901 super-
• See Ibid., pp. 33-35.
70-890 0 - 76 - 22
332
seded previous authority and listed by name those agencies
granted authority to classify security information. The order
lists 32 agencies which have blanket autl::ority to originate
classified material because they have "primary responsibility
for matters pertaining to national defense," and the authority
can be delegated by the agency head as he wishes. The order
lists 13 agencies in which the authority to originate classified
information can be exercised only by the head of agencies
which have "partial but not primary responsibility for matters
pertaining to national defense." The order states that
Government agencies established after the issuance of Executive
Order 10901 do not have authority to classify information
unless such authority is specifically granted by the
President.
Executive Order 10964 (27 F.R. 8932), dated September 20,
1961, set up an automatic declassification and downgrading
system. The four classes of military-security documents
created are:
(1) Information originated by foreign governments, restricted
by statutes, or reCJ.uiring special handling, which is
excluded from the automatIc system;
(2) Extremely sensitive information placed in a special
class and downgraded or declassified on an individual basis;
(3) Information or material which warrant some degree of
classification for an indefinite period will be downgraded
automatically at 12 year intervals until the lowest classification
is reached; and
(4) All other information which is automatically downgraded
every 3 years until the lowest classification is reached
and the material is automatically declassified after 12 years.
The order requires that, to d'e fullest extent possible, the
classifying authority shall indicate t1'8 group the material
falls into at the time of originating the classification.
Executive Order 10985 (27 F.R. 439), dated January 12,
1962, removes from certain agencies the power to classify information,
and adds other agencies to the list of those with
the authority to classify.33
. While these changes were being effected, the Executive also estabhshed
two evaluation commissions to examine the administration and
operation of the security classification system and to make recommendations
for its improvement. These panels were established at a time
when the Special Government Information Subcommittee of the House
~overnment Operations Committee was also undertaking an inquiry
mto many of the same matters. The activities and recommendations of
the Subcommittee will be discussed shortly.
V. The Coolidge Cowmittee
Shortly after the Special Government Information Subcommittee
began its hearings on the availability of information from Federal
departments and agencies, the Secretary of Defense, Charles E. Wilson,
created, on August 13, 1956, a five-member Committee on Classified
sa H. Rept. 87-2456, op. cit., pp. 11-12.
333
Information with Charles A. Coolidge, a prominent Boston attorney
and former Assistant Secretary of Defense, as chairman. Other members
of the panel were retired high-ranking officers representative of
the four armed services. In his letter establishing the committee, the
Secretary indicated he was "seriously concerned over the unauthorized
disclosure of classified military information" and urged that the group
"undertake an examination of the following matters affecting national
security" :
1. A review of present laws, executive orders, Department
of Defense regulations and directives pertaining to the classification
of information and the safeguarding of classified information,
to evaluate the adequacy and effectiveness of such
documents.
2. An examination of the organizations and procedures followed
within the Department of Defense designed to implement
the above cited documents, to evaluate the adequacy and
effectiveness of such organizations and procedures.
3. An examination of the means available to the Department
of Defense to fix responsibility for the unauthorized disclosure
of classification information, and to determine the
adequacy and effectiveness of such means in preventing future
unauthorized disclosures of such information.
4. An examination of the organization and procedures in
the Department of Defense designed to prevent the inadvertent
disclosure of classified information in any manner.34
Utilizing a small staff, the committee did not hold any formal hearings
but, according to the chairman, "we had conferences without a
stenographer present, to get the opinions of our conferees." After being
charged with their miSSIOn by the Secretary, the panel "decided we
would hold conferences starting with the Office of the Secretary of
Defense organization and running down into the services and in general
confer with people throughout the Department of Defense, whom
we thought had peculiar knowledge of and interest in security
matters." 35
The instructions to the Coolidge Committee made no mention
of studying overclassification or arbitrary withholding
of information from the public and from Congress. In a September
25, 1956, letter to Secretary Wilson, Chairman Moss
of the Special Government Information Subcommittee expressed
the hope that the Coolidge Committee would also review
the withholding aspects of the problem, as had been
revealed in the earlier subcommittee hearings. He was assured
in an October 9, 1956, response from Assistant Secretary of
Defense Ross that since the two subjects are related, "It is
probable that the report of the Coolidge Committee wiII make
recommendations bearing on our public information policies
.. u.s. Congress. House. Committee on Government Operations. Special Sub·
committee on Government Information. Availability of Information from Federal
Department8 and Agenoie8 (Part 8). Hearings, 85th Congress, 1st session. Washington,
U.S. Govt. Print. Off., 1957, p. 2010.
.. Ibid., pp. 2011-2012; a complete list of witnesses appears at pp. 2012-2014.
334
as well as Our procedures for preventing the unauthorized disclosure
of classified military information." 36
After three months of study, the panel issued a report on November
8, 1956, which contained twenty-eight specific recommendations, ten of
which concerned overclassification, and the following general
conclusion:
Our examination leads us to conclude that there is no conscious
attempt within the Department of Defense to withhold
information which under the principles set forth at the beginning
of this report the public should have; that the classification
system is sound in concept and, while not operating
satisfactorily in some respects, it has been and is essential to
the security of the nation; and that further efforts should be
made to cure the defects in its operation.37
With the publication of the committee's report, Chairman Coolidge
and members of the panel went before the House Special Government
Information Subcommittee to discm:s their findings and recommendation.
3s A few months later the Department of Defense implemented
portions of the study's recommendations.39
Secretary Wilson issued a new DoD directive covering the
procedures for classification of security information under
Executive Order 10501. His July 8, 1957, action replaced a
dozen previous directives and memorandums and consolidated
claEsification instructions into a single new documentDoD
Directive 5200.1-entitled "Safeguarding Official Information
in the Interests of the Defense of the United States."
It incorporated a number of the specific recommendations
made by the Coolidge Committee.
DespIte concern over the problem of overclassification, the
Coolidge Committee made no recommendation for penalties
or diSCIplinary action in cases of misuse of abuse of classification.
The new DoD directive did mention disciplinar:y action
for overclassification, but there is no evidence of ItS ever
having been used.40
Fl. The Wright Oommission
Paralleling the activities of the Coolidge Committee was the Commission
on Government Security, established by law (69 Stat. 595)
.. H. Rept. 93-221, op. mt., p. 16.
111 U.S. Department of Defense. Committee on Classified Information. Report to
the Secretary Of Defen8e by the Committee on Cla88ified Information. Washington,
Department of Defense, 1956, p. 23.
.. U.S. Congress. House. Committee on Government Operations. Special Subcommittee
on Government Information. Ava,ilabiZity 01 Information From Federal
Department8 and Agencie8 (Part 8), op. cit., pp. 2011-2095, 2097-2132; the
entire report of the Coolidge Committee may be found at pp. 2133-2160.
.. See U.S. Department of Defense. Office of the Secretary of Defense. Department
01 Defen8e Implementation 01 Recrwnmentlation8 01 Coolidge Committee
on Cla88ified Information. Washington, Department of Defense, 1957 (published
in two parts) .
... H. Rept. 93-221, Of}. mt., p. 17; DoD Directive 5200.1 may be found in U.S.
Congress. House. Committee on Government Operations. Special Subcommittee
on Government Information. Ava,ilability Of Information From Federal Departments
and Agencies (Part 18). He'lrin~s, 85th Congress, 1st session. Washington,
U.S. G<>vt. Print. Off., 1957, PP. 3243-3260.
335
on August 9, 1955, and takin~ its popular name from its chairman,
prominent Los Angeles attorney and former American Bar Association
president, Loyd Wright. Composed of six Republicans and six
Democrats, four of whom were selected by the PresIdent, four by the
Speaker of the House and four by the President of the Senate, the
panel's mandate was thus expressed (69 Stat. 596-597) :
The Commission shall study and investi~ate the entire
Government Security Program, including the various statutes,
Presidential orders, and administratIve regulations and
directives under which the Government seeks to protect the
national security, national defense secrets, and public and
private installations, against loss or injury arising from
espionage, disloyalty, subversive activity, sabotage, or unauthorized
disclosures, together with the actual manner in
which such statutes, Presidential orders, administrative regulations,
and directives have been and are being administered
and implemented, with a view to determining whether existing
requirements, practices, and procedures are in accordance
with the policies set forth in the first section of this joint resolution,
and to recommendin~ such changes as it may determine
are necessary or desirable. The Commission shall also
consider and submit reports and recommendations on the adequacy
or deficiencies of existing statutes, Presidential orders,
admmistrative regulations, and directives, and the administration
of such statutes, orders, regulations, and directives,
from the standpoints of internal consistency of the overall
security program and effective protection and maintenance
of the national security.
Organized in December, 1955, the Commission was sworn on January
9, 1956. Four special subject subcommittees were formed with a
panel on Legislation and Classification of Documents composed of
James P. McGarnery, chairman, Senator Norris Cotton (R.-N.H.),
Senator John Stennis (D.-Miss.), and, ex officio, Chairman Wright.
After acquiring office space in the General Accounting
Offic~ building, the CommIssion began recruiting a staff for
its challenging task. The chairman, with the approval of the
Commission, selected the supervisory staff, consisting of an
administrative director, a director of project surveys, a director
of research, a general counsel, a chief consultant and an
executive secretary.
The entire staff, carefully selected on a basis of personal integrity,
unquestionable loyalty, and discretion, combined with
appropriate experience and a record of devotion to duty in
responsible positions, worked under the personal direction
of the Chairman.
To avoid entanglement in public controversies, to maintain
an obiective and impartial approach to its work, the Commission
held no public hearings and made no 'press releases or
public statements reflecting its view or describing its
activities.41
U Commission on Govl'rnment Security. RpT!ort of the (!ommi8~ion, on Government
Security. Washington, U.S. Govt. Print. Oft'., 1957. (85th Congress, 1st
session. Senate. Document No. 64), pp. xiv-xv.
336
The Commission enlisted the assistance of four private consultants
and the loan of two special aides from the Senate Office of Legislative
Counsel and Government Printing Office. Expert advice was also recruited
through a Citizens Advisory Committee which met with the
Commission on three occasions. "During each of the several sessions
many aspects of the Commission's conclusions and recommendations
were discussed. These conferences J?rovided views that emanated from
fresh, new perspectives, and contrIbuted to the solution of many complex
and challenging problems." 42
On June 23, 1957, the Commission issued a massive 807-page report
on various aspects of government security policy and operations. A
small portion of the document surveyed the historical evolution of the
document classification program, examined the legal basis for the then
existing arrangements, and scrutinized the scope and mechanics of the
operation. The report also offered suggestions for the improvement of
the classification effort, saying, in summary:
The changes recommended by the Commission in the present
program for classification of documents and other material
are of major importance. The most important change is that
the Confidential classification be abolished. The Commission
is convinced that retention of this classification serves no useful
purpose which could not be covered by the Top Secret or
Secret classification. Since the recommendation is not retroactive
it eliminates the immediate task of declassifying material
now classified Confidential. The Commission also recommends
abolition of the requirement for a personal security
check for access to documents or material classified Confidential.
The danger inherent in such access is not significant and
the present clearance requirements afford no real securityclearance
check.
The report of the Commission stresses the dangers to
national security that arise out of overclassification of information
which retards scientific and technological progress,
and thus tends to deprive the country of the lead time that
results from the free exchange of ideals and information.43
The Commission also addressed the attitude it found that Congres.,
had taken toward rules for classification, and the balance between free
speech and national security:
Congress,onal inaction in this particular area can be traced to
the genuine fear of imposing undue censorship upon the bulk
of information flowing from various governmental agencies
and which the American people, for the most part, have the
right to know. Any statute designed to correct this difficulty
must necessarily minimize Constitutional objections by maintaining
the proper balance bl'tween the guarantee of the first
Amendment. on the one hand. and reguired measures to establish
a needed safeguard against any real danger to our national
securityY'
.. Ibid., p. vii; consllltants are listed lit p. ii and members of the Citizens Advisory
Committee may be found at PP. vii-ix.
.. Ibid., pp. xix-xx.
... Ibid.., p. 620.
337
The Wright Commission also provoked two major controversies. The
first of these was an allegation that the press often breached security
by utilizing classified information either directly or indirectly in news
stories. It was also charged that such information had been purloined
by journalists. Challenged by the House Special Subcommittee on Government
Information, neither assertion was substantiated.44
The most controversial portion of the ·Wright Commission
recommendations was its proposal urging Congress to "enact
legislation making it a crime for any person willfully to disclose
...vithout proper authorization, for any purpose whatever,
information classified 'secret' or 'top secret' knowing, or
having reasonable grounds to believe, such information to
have been so classified." The recommended bill would impose
a $10,000 fine and jail term of up to 5 years for those convicted
of violating its provisions. The Commission made it clear that
its proposal was aimed at persons outside of government, such
as newsmen. The recommendation was soundly criticized in
articles and editorials from such papers as the New York
Times, Baltimore Sun, Chicago Daily Sun-Times, Boston
Traveler, Cleveland Plain Dealer, Detroit Free Press, Washington
Post and Times Herald, and Editor and Publisher. One
article by James Reston of the New York Times pointed out
that it would have even resulted in the prosecution of the reporter,
Paul Anderson of the St. Louis Post Dispatch, who uncovered
and published "secret" documents in the "teapot
Dome" scandal during the 1920'8.45
VII. The M088 Oommittee
While a number of congressional committees have some aspects of
government information policy within their jurisdiction, the House
of Representatives devoted concentrated attention to the matter in
1955 with the creation of the Special Government Information Sub·
committee of the Government Operations Committee. The establishment
of the panel was due to a variety of factors. According to one
authority, the event "took place in an atmosphere of press concern
about growing post-war secrecy in general and the Eisenhower Administration's
information policies in particular. In November 1954,
just as the nation was electing a Democratic Congress, the Administration
established the controversial Office of Strategic Information."
46 This particular agency of the Commerce Department was reportedly
"responsible for formulating- policies and providing advice
and guidance to public agencies, industry and business, and other
.. See: U.S. Congress. House. Committee on Government Operations. Special
Subcommittee on Government Information. Availability of Information from
Federal Departments I1InJd Agencies (Part 10). Hearing'S. 85th Congress 1st sessi'ln.
Wllshington. n.R Govt. Print. Off.. 1957. p. 243;; IbM. (Part 13), pp. 33M-3316;
U.S. Congress. House. Committee on Government Operations. Availability
of Information from Fe;reral D'epartment.q (JffIIil Aqencip.q. Wllshinlrtnn, U.S. Gnvt.
Print. Off., 1958. (85th Congress, 2d session. House. Report No. 1884), pp. 14-19,
31--89.
.. H. Rept. 93-221, op. cit., p. 21; the bill appears in Commission on Goverr
ml'nt Security, oP. cit., p. 737.
•• Robert O. Blanchard. Present at the Creation: the Media and the Moss
Committee. Journalism Quarterly, v. 49, Summer, 1972: 272.
338
private groups who are concerned with producing and distributing
unclassified scientific, technical, industrial, and economic information,
the indiscriminate release of which may be inimical to the defense
interests of the United States." 47 The criticisms leveled against the
Office included "adding new classification categories of government,
failing to define 'strategic information' in a clear-cut way that would
limit the operation of the agency, favoring some companies with information
withheld from others. and caUing for voluntary withholding
of publication or broadcast of 'strategic information.'" 48 The press
community was particularly interested in such a subcommittee given
the experience of the Freedom of Information Committee of the American
Society of Newspaper Editors. Relying upon a March 29, 1955
directive from the Secretary of Defense regarding the limiting of departmental
information activities to matters that would make "a constructive
contribution" to the mission of DoD, Deputy Assistant Secretary
( Public Affairs) Karl Honaman responded to an information
request from the editors' group, saying:
The public is eager to be informed of the activities of the
Defense Department and need to have this information in
order to play their part effectively '88 citizens. There are,
nevertheless, many cases where demands for information
which take up the time of people with busy schedules do not
truly meet the requirement of being useful or valuable, nor
yet very interesting to the public. These are tests that should
be met. Thus, I would substitute for self-service, publicserving,
and I am sure this is a part of the interpretation of
constructive.49
The Defense Secretary's directive, the experience and outcry of the
American Society of Newspaper Editors, and the mounting penchant
for information control within the Executive were of sufficient concern
to Government Operations Committee Chairman William L.
Dawson (D.-Ill.) and House Majority Leader John McCormack (D.Mass.)
that they agreed to the creation of a government subcommittee
and selected Rep. John E. Moss (D.-Calif.) as chairman. Since 1963
the panel has functioned as a standing subcommittee of the Government
Operations Committee. In 1971, Rep. Moss relinquished leadership
of the unit whereupon Rep. William S. Moorhead (D.-Pa.) became
chairman; in 1975 Rep. Bella S. Abzug (D.-N.Y.) assumed
direction of the paneL
In its 2-year study of security classification policies that
spanned the Coolidge and Wright groups, the House Government
Information Subcommittee concentrated heavily on
the Department of Defense. The conclusions and recommendations
made, in turn, through reports of the full Government
Operations Committee are particularly important to
recall because they pinpointed major problem areas which
"I U.S. General Services Administration. National Archives and Records Servi('
P. I<'pdprlll Rp'?i~tp,. Divi~;nn. Unitpd "'tatc· Government Organization 1955-56.
Washington, U.S. Gov't. Print. Off'., 1955, p. 258.
'8 Blanchard. loco cit.
4ll Citpd in .TAmeS Rl1sspl l Wi!!'<?ino. FrN'dom or Secrecy, Revised Edition. New
York, Oxford University Press, 1964, p. 109.
339
existed over 15 years ago. They also proposed a number of
specific recommendations to correct many of these problems
. . . -recommendations that were largely ignored by
both Republican and Democratic administmtions. Had such
recommendations been properly implemented by top Pentagon
officials, it is possible that the security classification
"mess" referred to by President Nixon almost 14 years after
the issuance of the first of these committee reports could have
long since been corrected.50
On the general matter of the administration of information policy
and operations by the military, the Subcommittee observed:
Never before in our democratic form of government has the
need for candor been so great. The Nation can no longer
afford the danger of withholding information merely because
the facts fail to fit a predetermined "policy." Withholding
for any reason other than true military security inevitably
results in the loss of public confidence-or a greater tragedy.
Unfortunately, in no other part of our Government has it been
so easy to substitute secrecy for candor and to equate suppression
with security.
And further on in the same report:
In a conflict between the right to know and the need to protect
true military secrets from a potential enemy, there can be
no valid argument against secrecy. The right to know has
suffered, however, in the confusion over the demarcation between
secrecy for true security reasons and secrecy for
"policy" reasons. The proper imposition of secrecy in some
situations is a matter of judgment. Although an official faces
disciplinary action for the failure to classify information
which should be secret, no instance has been found of an
official being disciplined for classifying material which
should have been made public. The tendency to "play it safe"
and use the secrecy stamp, has therefore, been virtually
inevitable.51
When the Subcommittee once again turned its attention to security
classification policy in 1972, a study of the administration of E.O.
10501 revealed "that administrative penalties are the only type of action
taken in cases involving improper physical protection of information.
No criminal charges were ever made by the agencies
surveyed...." 52 No actions were taken against known cases of overclassification.
53
With regard to the allegations of Chairman Wright of the Comn.
Ussion on Government Security that newsmen were "purloining" clasSIfied
documents, the Subcommittee concluded:
.. H. Rept. 93-221, op cit., p. 2l.
151 H. Rept. 85--1884, op. cit., p. 152.
.. See U.S. Congress. House. Committee on Government Operations. U.S. Government
Information Policies and Practices-Security Ola88ificatiun Problem8
Involving Sub8ection (b)(1) of the Freedom Of Information Act (Part 7).
Hearings, 92nd Congress, 2d session. Washington, U.S. Govt. Print. Off., 1972,
p.2932.
GO Ibid., pp. 2926--2937.
340
No member of the press should be immune from responsibility
if sound evidence can be produced to prove that he has
in fact deliberately "purloined" and knowingly breached
properly classified military secrets, But the press must not
be made the whipping boy for weaknesses in the security system
caused by overzealous censors who misuse that system to
hide controversy and embarrassment.54
As a consequence of its first study of the security classification system
and the administration of E.O. 10501, the Subcommittee made the
following recommendations to improve operations.
1. The President should make effective the classification
appeals procedure under section 16 of the Executive Order
10501 and provide for a realistic, independent appraisal of
complaints against overclasslfication and unjust11ied withholding
of information.
2. The President should make mandatory the marking of
each classified document with the future date or event after
which it will be reviewed or automatically downgraded or
declassified.
3. The Secretary of Defense should set a reasonable date
for the declassification of the huge backlog of classified information,
with a minimum of exceptions.
4. The Secretary of Defense should direct that disciplinary
action be taken in cases of overclassification.
5. The Secretary of Defense should completely divorce
from the Office of Security Review the function of censorship
for policy reasons and should require that all changes made or
suggested in speeches. articles and other informational material
be in writing and state clearly whether the changes are
for security or policy reasons.
6. The Secretary of Defense should establish more adequate
procedures for airing differences of opinion among responsible
leaders of the military services before a final policy
decision is made.
7. The Congress should reaffirm and strengthen provisions
in the National Security Act giving positive assurance to the
Secretaries and the military leaders of the services that they
will not be penalized in any way if, on their own initiative,
they inform the Congress of differences of opinion after a policy
decision has been made.55
Although these suggestions, as previously noted, failed to obtain any
response or support for implementation from the Executive, the Subcommittee
was not without some successes in its efforts to reduce unnecessary
secrecy practices in information management. As the panel
later saw the situation,56 the Department of Defense responded to its
.. H. Rept. R!l---1884, op. cit., 154-155.
.. Ibid., p. 161.
M ~ee U.S. Conln'l'ss. HOllse. Committee on Government Opl'rlltions. Avnila1lility
of Information from Federal Departments and Agencie., (Prof/ress of Study,
Fpllruar1f. 19fi7-Julll. 195R). Washing-ton. U.~. Govt. Print. 01'1'., 1958. (85th Congress,
2d session. House. Report no. 2578), pp. 5~.
341
wishes by issuing a new directive dated September 27, 1958 which,
according to the Pentagon's press release
... establishes a new method by which millions of military
documents, originated prior to January 1, 1946, and classified
top secret, secret, and confidentiai will now be downgraded
or declassified.
The new directive which becomes effective 60 days after
signature, automatically cancels, except within a few limited
categories, the security clasifications on millions of documents
which no longer need protection in the national interest. In
addition, the directive will downgrade to secret all top secret
documents which are exempted from declassification.57
Although the substance of the order was most agreeable to the Subcommittee,
the successful implementation of it, in the opinion of
the Subcommittee left much to be desired. An April 15, 1959 report
to the Moss panel from the DOD Office of Declassification Policy
indicated that means to carry out the directive were still under
discussion.58
Additional efforts were made by the subcommittee to reduce
the number of executive agencies authorized to exercise
classification authority under Executive Order 10501. Studies
on the use of classification authority by a list of agencies
surveyed by the subcommittee were made available to the
White House and on March 9, 1960, President Eisenhower
signed a memorandum having the effect of prohibiting some
33 Federal agencies from classifying information under the
Executive order. President Eisenhower later issued Executive
Order 10901 on January 9, 1961, prohibiting 30 additional
agencies from classifying military information, thus
limiting classification authority to 45 specifically named departments
and agencies.59 •
The Subcommittee felt that, as constituted a decade before, it had
succeeded in prompting another DOD directive regarding the declassification
of post-World War II documents.
The ... directive was originally scheduled to take effect on
December 27, 1960, but its effective date was postponed until
May 1, 1961. It applied to documents originated on or after
January 1, 1946, and established two "time ladders" for automatically
downgrading or declasifying documents after specific
time levels have elapsed. Non-exempted material would
be downgraded at 3-year intervals from top secret to secret
to confidential, and automatically declassified after a total
of 12 years' existence in a classified status. Exempted material,
such as war plans, intelligence documents, and similar
07 U.S. Congress. House. Committee on Government Operations. AvailabiUty
of Information from Federal Departments and Agencies (Progress Of Study,
AU.Qust. 1958~Ju11l. 1959). Washine:ton. U.S. Govt. Print. Off.. 1959. (86th COD'
gress. 1st session. House. Report no. 1137), pp. 81-82; the text of the directive
may be found at pp. 87-91.
.. Ibid., pp. 93-97 ; H. Rept. 93-221.. op. cit., ;po 24.
.. H. Rept. 93-221, 01'. cit., pp. 24-25.
342
information, would be downgraded from top secret to secret
to confidential at 12-year intervals but would not be automatically
declassified. The automatic downrrrading and declassification
provisions of DOD Directive 5200.10 were subsequently
incorporated into Executive Order 10964, issued
by President Kennedy on September 20, 1961.
Executive Order 10964 also added a new section 19 to Executive
Order 10501 directing department heads to "take
prompt and stringent administrative action" against Government
personnel who knowingly and improperly release classified
information. Where appropriate, it directed that such
cases be referred to the Justice Department for possible
prosecution under applicable criminal statutes.60
With the advent of a new administration in 1961, both President
Kennedy and Secretary of Defense Robert McNamara were apprised
of the Subcommittee's findings and suggestions with regard to the
administration of information policy. "Among the major recommendations
was a proposal to make effective the classification appeals
procedure available under section 16 of Executive Order 10501, so as
to provide for a realistic independent appraisal of complaints against
overclassification and unjustified withholding of information. While
the President did name Mr. Lee C. White, Assistant Special Counsel
to the President, as the designated person to receive complaints under
section 16, there is no indication that the procedure was utilized." 61
It was also at this time that the Subcommittee began turning its
attention to legislation to assist in and otherwise clarify public access
to documentary government information. By 1963 a variety of measures
began to be introduced and hearings were undertaken on the
matter. The result was the Freedom of Information Act (80 Stat. 250)
signed into law by President Johnson on July 4, 1966 to go into effect
one year later.62 In its provision of permissive exemptions of categories
of information which might be withheld from the public, the
legislation recognized records "specifically required by Executive
order to be kept secret in the interest of the national defense or foreign
policy." 63
When oversight hearings on the administration and operation of
the act were undertaken by the Foreign Operations and Government
Information Subcommittee, successor to the Moss panel, in 1972,
scrutiny of the Executive's utilization of this exemption to withhold
information resultpd in a broad re-l'xamination of the security classification
pro~am. Relevant major findings were that, according to a
survey of the department and allencies regarding four years' administration
of the law, the secret information exemption ranked third in
10 I~d., p. 25
01 Ibid.
.. For a ll'gilative history of the act see U.S. Congrl'ss. House. Committee
on Government Operations. U.S. Government Information Policies ana PracticelJ-
AdminiRtration and Operation of thn Frepdom of Informatirm Act (Part
4). Hearings. 92nd Congress, 2d session. Washington, U.S. Gov.t Print. Ofl'.,
1972. pp. 1afl7-1373.
"Ree 5 U.S.fJ. 552 (b)(1). 1970 ed: this IlIn~ua~e was amended in 1974 by
P.L. 93-502 which strengthened portions of the FOr law.
343
a field of nine in terms of being one of the least utilized provisions
for withholding documents.64
Another revelation resulting from the proceedings concerned the
costs of classification operations. One expert witness, a retired Air
Force official with many years of experience on the subject, testified:
There is a massive wastage of money and manpower involved
in protecting this mountainous volume of material
with unwarranted classification markings. Last year, I estimated
that about $50 million was being spent on protective
measures for classified documents which were unnecessarily
classified. After further observation and inquiry, and including
expenditures for the useless clearances granted people
for access to classified material, it is my calculation that
the annual wastage for safeguarding documents and equipment
with counterfeit classification markings is over $100
million.65
Although the Defense Department reported that there was "no
available data on the total costs which could be attributed to security
classification or to the protection and handling of classified documents
and materials," 66 the Subcommittee commissioned a General Accounting
Office study on the matter.67 In remarks on the House floor, Chairman
Moorhead compared the results of the GAO analysis with an
O~ce of Management Budget report on public information costs,
saymg:
The GAO analysis was requested last summer [1971] by
the Foreign Operations and Government Information Subcommittee,
which is charged with the duty of determining
the economy and efficiency of Government information activities.
The OMB figures were compiled from reports of Govment
agencies the year after they were ordered by President
Nixon to cut down "self-serving and wasteful public relations
activities" outside the White House [1971].
The GAO surveyed the secrecy systems in the Departments
of Defense and State, the Atomic Energy Commission,
and the National Aeronautics and Space Administrationthe
four agencies responsible for the huge bulk of documents
classified under the secrecy system. Those four agencies, the
GAO reported, spend $126,322,394 annually on various activ-
.. See u.s. Congress. House. Committee on Government Operations. U.s. Government
Information on Poli-vies and Practices-Administration and Operation
of the Freedom of Information Act (Part 4), op. cit., pp. 1342-1343.
'" U.S. Congress. House. Committee on Government Operations. U.B. Government
Information Policies and Practices-Security OZas8itteation Problems IfItvolving
Subsection (b) (1) of the Freedom of Information Act (Part 7), op. cit.,
p.2532.
011 U.S. Congress. House. Committee on Government Operations. U.B. Government
Information Policie.~ and Pr'lCtices-The Pentagon Papers (Part 2).
Hearings, 92nd Congress, 1st session. Washington, U.S. Govt. Print. Off., 1971,
p.690.
fJ1 For the entire study and accompanying papers see U.S. Congress. House.
Committee on Government Operations. U.S. Government Information Policies
nnd Practices-Security Classification Problems InVOlving Subseetion (b) (1) of
the Freedom Of Information Act, op. cit., pp. 2286-2293.
344
ities related to the security classification system, such as the
classification, declassificatIOn, storing, and safeguarding of
Government documents and the conduct of personnel security
investigations.
The OMB listed the annual expenditures of the same four
agencies for all of their public information programs as $64,029,000.
While the $126,000,000 annual secrecy expense covers the
top four secret-generating agencies in Government, it is only
a part of the total cost of hiding information from the public.
The GAO admitted that even their experts could not get all
of the data necessary to arrive at the total cost of the security
classification system. They said they had to use assumptions,
extrapolations, and [sic] other cost-estimating techniques
and to ignore some costs where estimates could not be readily
developed.
One of the biggest blanks in the GAO study of the cost
secrecy is the money that defense contractors charge the taxpayers
for their role in the Government's secrecy system.
None of the big four Government agencies gave the GAO
firm figures on this cost, but we are working with the auditors
to develop a firm estimate on the cost of secrecy added to
defense contracts. It will, I fear, add hundreds of millions
of dollars to the secrecy budget.58
The third major finding of the Subcommittee was that Executive
departments and agencies were variously utilizing some 62 different
information control markings to limit the distribution and dissemination
of documents upon which they appear. Their number did not include
the "Top secret," "Secret," and "Confidential" labels authorized
by KO. 10501 and, in virtually every cause, they were promulgated
and used without any statutory authority.69 An added note of discomfort
derives from the fact that additional such markings might exist
and be employed to restrict information. There was no assurance from
Executive Branch witnesses that any management or elimination of
these document control labels would be undertaken.
VIII. Other OO'ngre8sional Actors
The House Government Information Subcommittee was not, of
course, the only congressional panel involved in security classification
policy matters. Durmg a hearing in 1970, a subcommittee of the Senate
Foreign Relations Committee challenged the authority of the
President to promulgate E.O. 10501. The legal adviser of the State
Department, with the approval of the Justice Department, responded
by citing justifications for the order which appeared in the 1957
Repm't of the Oowmi88ion on Government SemtTity which cited the
1789 "housekeeping" statute (1 Stat. 68), portions of the Espionage
Act of 1917 (40 Stat. 217), segments of the Internal Security Act of
1950 (64 Stat. 987), and the authority of the National Security Act
eo Oongressional Record. v. 118. May Hi, 1972 : H4!'i!l7-H4!'i!'iR.
.. See U.s. Con2'rPIlIl. House. Committee on Government Operations. U.S. Government
Information Policies and Praotice8-Security Classification ProblemR,
Involving Subsection (b) (1) of the Freedom of Information Act, op. cit., p. 2988.
345
of 1947 (61 Stat. 495.) 70 No additional action was taken by the subcommittee
on the question.
In the spring of 1972 the Special Intelligence Subcommittee of the
House Armed .Forces Committee held hearings on the Nixon Administration's
new classification directive, E.O. 11652, prevailing classification
administration, and a bill to create a continuing classification
policy study commission. During eight days of testimony the panel
heard largely Executive Branch witnesses.71 The bill did not receive
endorsement and no report has yet been issued on the proceedings.
E.O. 1165~
Publication of the now famous "Pentagon Papers" prompted congressional
inquiry into the collection, unauthorized removal, dissemination,
and press reproduction of these documents.12
After the eruption of -the controversy over the publication
of parts of the "Pentagon Papers" by the New York Times,
Washington Post, and other newspapers, it was revealed that
President Nixon had, on January 15, 1971, directed that "a
review be made of security classification procedures now
in effect." He established an "interagency committee to study
the existing system, to make recommendations with respect to
its operation and to propose steps that might be taken to
provide speedier declassification." He later directed that "the
scope of the review be expanded to cover all aspects of information
security." 13
The interagency committee created was headed by William H.
Rehnquist, then Assistant Attorney General, Office of Legal Counsel,
and included representatives from the National Security Council, the
Central Intelligence Agency, the Atomic Energy Commission, and
the Departments of State and Defense. With Rehnquist's appointment
to the Supreme Court in late 1971 David Young, Special Assistant
to the National Security Council assumed the chairmanship of the
panel. Simultaneously,
the White House on June 30, 1971, issued an "administratively
confidential" memorandum to all Federal agencies
signed by Brig. Gen. Alexander M. Haig, Jr., Deputy Assistant
to the President for National Security Affairs, ordering
each agency to submit lists of the Government employees,
outside consultants, and private contractors who hold clearances
for access to top secret and secret information.
70 See u.s. Congress. Senate. Committee on Foreign Relations. Subcommittee
on U.S. Security Agreements and Commitments Abroad. D.S. Security Agreements
and Commitments Abroad: Morocco and Libya (Part 9). Hearings, 91st
Congress, 2d session. Washington, U.S. GO"l't. Print. Off., 1970, pp. 1974, 20082011.
71 See U.S. Congress. House. Committee on Armed Services. Special Subcommittee
on InteJIigl'nl'e. HwriTl"s on. thl' Proper Cla.~siti,('(/,tion and Handling 01
Government Information Involving the National Security and H.R. 9859, a
rew,ted Bill. Hearings 92ndCongress, 2d session. Washington, U.S. ~vt. Print.
Off., 1972.
72 For a view of how the press greeted and reacted to the possibility of
publishing the papers see Sanford J. Unger. The Papers and the Papers. New
York, E. P. Dutton Company, 1972.
.,. H. Rept. 93-221, op. cit., p. 31.
346
Several days later. President Nixon then asked Congress
to approve a $636,000 supplemental appropriation for the
General Services Administration to assist the National Archives
in the declassification of World War II records, which
he estimated to total "nearly 160 million pages of classified
documents." 74
Meeting through summer and autumn of 1971, the interagency committee
under Rehnquist's leadership incorporated its recommendations
into a draft revision of E.O. 10501. This document was then circulated
in January, 1972, to key departments and agencies by the National
Security Council. Ultimately, on March 8, 1972, President Nixon released
what the Executive Branch felt was an improved instrument,
complete with revisions offered during its circulation under NSC
sponsorship, as E.O. 11652. For one thm~, the new Executive Order
reduced substantially the number of staff who reviewed government
information for classification. For other justifications, see the Harvard
Law Review discussion cited above.
Entitled "Classification and Declassification of National Security
Information," certain substantive aspects of the directive have suggested
shifts in policy. First, it was promulgated in consonance with
the permissive exemption clause of the Freedom of Information Act
(5 U.S.C. 552(b) (1». The thrust of the statute is that all government
information should be made available to the public and, with specified
exception, nothing should be withheld. The order utilizes the statute's
justification for the permissive withholding of records to suggest a
more absolute basis for denying access to classified materials.
While E.O. 10501 used the referent "interests of national defense"
to specify its policy sphere, the new order utilizes "interest of national
defense or foreign relations" which collectively refer to "national
security." Not only is this a broadening of the policy sphere, but the
phrase in E.O. 11652 is not harmonious with the statutory provision
upon which it is allegedly based. The Freedom of Information Act
clause uses the term "interest of national defense or foreign policy."
In addition to putting the language of the new Executive
order at variance with the language of the Freedom of Information
Act on which it relies for application of the exemption,
the semantic and legal differences between the terms
"national defense" and "national security" and the terms
"foreign policy" and "foreign relations" weaken the entire
foundations of Executive Order 11652, while failing to correct
a basic defect in Executive Order 10501-namely, its lack
of a definition for the term "national defense." For example,
"relations" is a much broader word than "policy"
because it includes all operational matters, no matter how
insignificant.75
Congress seems to have affirmed this view of the Foreign Operations
and Government Information Subcommittee in adopting the 1974
amendments to the Freedom of Information Act (P.L. 93-502) which
provide the courts with authority to examine classified documents in
7' Ibid.
'II Ibid.
347
camera to determine if the material is properly classified and, accordingly,
properly withheld.
Uther defects detected in the order which were duly noted by the
Foreign Operations and Government Information Subcommittee
included:
(1) Totally misconstrues the basic meaning of the Freedom
of Information Act (5 U.S.C. 552) ;
(2) Confuses the sanctions of the Criminal Code that apply
to the wrongful disclosure of classified information;
(3) Confuses the legal meaning of the terms "national defense"
and "national security" and the terms "foreign policy"
and "foreign relations" while failing to provide an adequate
definition for any of the terms;
(4) Increases (not reduces) the limitation on the number
of persons who can wield classification stamps and restricts
public access to lists of persons having such authority;
(5) Provides no specific penalties for overclassification or
misclassification of information or material;
(6) Permits executive departments to hide the identity of
classifiers of specific documents; .
(7) Contains no requirement to depart from the general
declassification rules, even when classified information no
longer requires protection;
(8) Permits full details of major defense or foreign policy
errors of an administration to be cloaked for a minimum of
three 4-year Presidential terms, but loopholes could extend
this secrecy for 30 years or longer;
(9) Provides no public accountability to Congress for the
actions of the newly created Interagency Classification Review
Committee.
(10) Legitimizes and broadens authority for the use of
special categories of "classification" governing access and
distribution of classified information and material beyond
the three specified categories-top secret, secret, and confidential;
and
(11) Creates a "special privilege" for former Presidential
appointees for access to certain papers that could serve as
the basis for their private profit through the sale of articles,
books, memoirs to publishing houses.16
Turning to actual operations under E.O. 11652, the Subcommittee
(1) reiterated certain defects within the directive which its analysis of
the instrument had revealed, (2) lamented that "appropriate committees
of the Congress having extensive experience and expertise in the
oversight of the security classification system were not given the
opportunity by the Executive Branch to comment on the design of
the new Executive order;" (3) chastised the Executive for releasing
the new classification order without ,giving the agencies ample oppor-
... Ibid., pp. 58--59; for a detailed section-by-section analysis of E.O. 11652 see
U.S. Congress. House. Committee on Government Operations. U.S. Government
Information Policies and Practices-Security Olassification Problems In"ol'lling
SulJ8ection (b) (1) of the Freedom of Information Act (Part 7), op. cit., pp. 28492888.
70-390 0 - 76 - 23
348
tunity to prepare implementing regulations and otherwise "provide
for the orderly transition from the old system to the new;" (4) criticized
the conflicting statements by Executive Branch witnesses and
demonstrated lack of clarity regarding "the extent to which 'domestic
surveillance' activities by Federal agencies involving American citizens
are subject to classification under the new Executive order;" (5)
disapproved of the limitations the new order placed on classified data
of the World War II era which "fall far short of the policies necessary
to permit the Congress or the public to benefit from historical
insights into defense and foreign policy decisions of this crucial
period of U.S. involvement in global crises;" and (6) praised the
statutorily based information administration program of the Atomic
Energy Commission.71
The committee therefore strongly recommends that legislation
providing for a statutory security classification system
should be considered and enacted by the Congress. It should
apply to all executive departments and a~encies responsible
for the classification, protection, and ultimate declassification
of sensitive information vital to our Nation's defense and
foreign policy interests. Such a law should clearly reaffinn
the right of committees of Congress to obtain all classified infonnation
held by the executive branch when, in the judgment
of the committee, such infonnation is relevant to its
legislative or investi~ative jurisdiction. The law should also
make certain that committees of Congress will not be impeded
in the full exercise of their oversight responsibilities
over the administration and operation of the classification
system.7S
Hearings on such a statutorily based classification arrangement
were held durin~ the 93rd Congress and the matter remains one of
high interest on Capitol Hill.79
Of relevance as well is the mandate of the Energy Research and
Development Administration derived from the now defunct Atomic
Energy Commission, which conveys a statutory (42 U.S.C. 2161-2166)
responsibility for protecting so-called "Restricted data" pertaining to
atomic energy production and use, and that of the Director of the
Central Intelligence A~ency who bears an obligation (50 U.S.C.
403(d) (3) "for protecting intelligence sourc(>s and methods from unauthorized
di8('losure." Both of these mandates have fostered information
protection systems partially governed by E.O. 11652 but also
constitute anthority for the maintenance of official secrets by these
agencies in their own right.
IX. Ove1'1,iellJ
The continuing debate and unresolved issues of government information
security classification policy serve to indicate that this is a
11 H. Rppt. 93-221, Of}. cit., pp. 102-108.
'" Ibid., p. 104.
'111 Rpp: n.R Con!!'l'ps". HOI1!'.e. Committpp on Govprnment OJ}{'l'ati01ls. ,Qeettritll
O1ns'iji('atinn Rptnrm. Hearings, 93rd Congress. 2d !'P!'sion. Washington. U.S.
Govt. Print. Off., 1974: --, Rpnatp. CommittCf' on Government Operations.
Gnvernmpnt F!P('rP('lI. Hearings, 93rd Congress, 2d session. Washington, U.S.
Govt. Print. Oft'., 1974.
349
subject whose controversial nature transcends partisanship, ideology,
and public profession. How is sensitive information to be defined,
identified, isolated, maintained, utilized, and evaluated for possible
release? Should Congress have access to such restricted material?
Should acc~ssibility be general or selective? Might judges examine
classified documents where their releasability is in question? To what
extent is secret information admissable as eviden~ in a trial? Who
is to be punished for the unauthorized release of such data? Is espionage
the only charge which might be brought against offenders?
All of these questions were recently much under public discussion
due to the proposed recodification of Title 18, the criminal law portion,
of the U.S. Code. In 1966 legislation was enacted (80 Stat. 1516)
establishing a National Commission on Reform of Federal Criminal
Law. Operating under the leadership of former California Governor
Edmund G. Brown, the panel made its final report on January 7,
1971.80 All aspects of the criminal law were considered and evaluated.
Segments regarding espionage, management of classified information,
and trafficking in restricted data constituted only a small portion of
the total product. With the convening- of the 93rd Congress, modified
versions of the Commission's recommended model criminal code were
offered by the Senate Judiciary Subcommitt~eon Criminal Laws and
Procedures (S. 1) and by the Justi~ Department for the Administration
(S. 1400, H.R. 6046).81 Hearings were held on the measures
and consideration is still being given to a revised version of the
recodification bills in the present Congress. Efforts are currently
underway to delete certain objectionable portions from the bill, including
the so-called "official secrets act" section, to enable adoption
of the revised criminal code.
The current g-overnment information classification program owes
its origins to armed services regulations, promulgated prior to the
turn of the century regarding the protection of natIOnal defense documents.
The criminal enfor~ment authority of the Espionage Act of
1917 colors the management directives of the order with sanctions
against the unauthorized disclosure of restricted documents. As a
dynamic area of public policy, the classification program continues to
receive attention within various arenas of the governmental system.
To the extent that official secrecy is of vital con~rn to any functioning
democracy, these matters will undoubtedly continue to be discussed
by policymakers.
.. See u.s. Kational Commission on Reform of Federal Criminal Laws. Final
Report Of the National Oommission on Reform of Federal Oriminal Laws.
Washington, U.S. Govt. Print. Off., 1971; see especially pp. 86--94.
81 Certain differences between the Subcommittee and Administration proposals
were explained by Sen. Roman L. Hruska (R.-Neb.) in OongressionaZ Record, V.
119, March 27,1973: S57;;-S5791.
GOVERNMENT INFORMATION SECURITY CLASSIFICATION POLICY:
A SELECT BmLIOGRAPHY
Baker, Carol M. and Matthew H. Fox. Olassified Files: the Yellowing
Pages, A Report on Scholar's Access to Government Doauments.
New York, The Twentieth Century Fund, 1972. 115 p.
JK468.S4B35
Blanchard, Robert O. Present at the Creation: The Media and the
Moss Committee. Journalism Quarterly, v. 49, Summer, 1972:
271-279. PN7400.J7
Dorsen, Norman and Stephen Gillers, eds. Government Secrecy In
America: None of Your Business. New York, The Viking Press,
1974.362 p. JK468.S4Z65
Franck, Thomas M. and Edward Weisband, eds. Secrecy and Foreign
Policy. New York and London, Oxford University Press, 1974.
453 p. Law
Irvine, Dallas. "The Origin of Defense-Information Markings in the
Army and Former War Department." [typescript]. Washin~on,
National Archives and Records Service, General Services Administration,
1964; under revision 1972. 49 p.
Rourke, Francis E. Secrecy and Publicity, Dilemmas of Democracy.
Baltimore, The Johns Hopkins Press, 1961. 236 p. JK468.S4R6
Ungar, Sanford J. The Papers and the Papers: An account of the
Legal and Political Battle Over the Pentagon Papers. New York,
E. P. Dutton Co., 1972. 319 p. E855.U5
U.S. Congress. House. Committee on Armed Services. Armed Services
Investigating Subcommittee. Alleged Purchase of Olassified
Information by a ;Jfember of Oongress. Hearings, 93rd Congress,
1st session. Washington, U.S. Govt. Print. Off., 1973. 56 p.
--.--.--.--. Alleged Purchase of Olassified Information
by a Member of Oongress: Report. Washington, U.S.
Govt. Print. Off., 1973. H) p.
At head of title: 93rd Congress, 1st session. Committee print.
--.---.---. Special Subcommittee on Intelligence. Hearings
on the Proper Olassification and Handling of Government Information
Involving the National Security and HR. 9853, A Related
Bill. Hearings, 92nd Congress, 2d session. Washington, U.S. Govt.
Print. Off., 1972. 633 p.
---.---. Committee on Government Operations. Ewecutive
Classification of Information-Security Olassification Problems
Involving Ewemption (b) (1) of the Freedom of Information Act
(5 U.S.O. 552). Washington, U.S. Govt. Print. Off., 1973.113 p.
(93rd Congress, 1st session. House. Report no. 221) .
---.---.---. Safeguarding Official Information in the Interests
of the Defense of the United States (The Status of Executive
Order 10501). Washington, U.S. Govt. Print. Off., 1962. 48 p.
(87th Congress, 2d session. House. Report no. 2456).
(350)
351
--.--.--. Security Ola8sifieation Reform. Hearings, 93rd
Congress, 2d session. Washington, U.S. Govt. Print. Off., 1974.
756 p.
--.--.--. Foreign Operations and Government Information
Subcommittee. U.S. Government Information Policies and
Practices (various parts with titles). Hearings, 92nd Congress,
1st and 2d sessions. Washington, U.S. Govt. Print. Off., 1971-1972.
3758 p.
--.--.--. Special Subcommittee on Government Information.
Availability of Information from Federal Departments and
Agencies (varioGs parts with subtitles). Hearings, 84th through
86th Congresses. Washington, U.S. Govt. Print. Off., 1956-1959.
JK468.S4A522
--.--.--.--. Availability of Information from Federal
Departments and Agencies (periodic progress reports.).
Washington, U.S. Govt. Print. Off., 1958-1961. (85th Congress,
2d session. House Report no. 1884) 295 p.; (85th Congress, 2d
session. House. Report no. 2578) 243 p.; (86th Congress, 1st
session. House. Report no. 1137) 457 p.; (86th Congress, 2d session.
House. Report no. 2084) 222 p.; 87th Congress, 1st session. House.
Report no. 818) 197 p. JK468.S4A28 .
--.--. Committee on Un-American Activities. Protection of
Olassified InformatUm Released to U.S. Industry and Defeme
Oontractors. Washington, U.S. Govt. Print. Off., 1962. 66 p. (87th
Congress, 2d session. House. Report no. 1945). UB247.A52
--. Joint Committee on Congressional Operations. Oonstitutional
Immunity of J.fembers of Oongress. Hearing'S, 93rd Congress, 1st
session Washington, U.S. Govt. Print. Off., 1973. 402 p.
--; Senate. Commission on Government Security. Report of the
Oommission on Government Security. Washington, U.S. Govt.
Pl'int. Off., 1975. 807 p. (85th Congress, 1st session. Senate. Document
no. 64) . JK734.A514
-_.-.--. Committee on Foreign Relations. Security OlassificatUm
as a Problem in the Oongressional Role in Foreign PolifYJ/.
Washin~on, U.S. Govt. Print. Off., 1971. 41 p.
At head of title: 92nd Congress, 1st session. Committee print.
--.--. Committee on Government Operations. Government
Secrecy. Hearings, 93rd Congress, 2d session. Washington, U.S.
Govt. Print. Off., 1974. 908 p.
U.S. Department of Defense. Committee on Classified Information.
Report to the Secretary of Defense'by the Oommittee on Olassijiea
Information Washington, Department of Defense, 1956. n.p.
,UB247.A54 ,..
-_.. Offic~ of the Secretary of Defense. Department of Defense
Implementation 01 pecommendations of Ooolidge Oommittee on
OlaSsified Information (Part 1). Washington, Department of
Defense, 1957. n.p. UB247.A53
--.--. Department of Defense Implementation of Recommendations
of Ooolidge Oommittee on Olassified Information
(Part 2). Washington, Department of Defense, 1957. n.p.
lTB247.A53 ..
352
u.s. War Department. Oompilation of General Orders, Oirculars, and
Bulletin8. ... Washington, U.S. Govt. Print. Off., various years.
UB502
--. Regulation8 for the Army of the United States. Washington,
U.S. Govt. Print. Off., various years. UB501
Wiggins, James Russell. FFeedom 01' Secrecy. Revised edition, New
'York, Oxford University Press, 1964. 289 p. JC599,U5W53
ACKNOWLEDGMENTS
A note of gratitude and appreciation is extended to certain individuals
deserving of mention for the special assistance they provided
in the production of this study. At the National Archives and Records
Service, Adrienne Thomas and Tim Nenninger were expeditious in
locating and transmittin~two historical accounts of the activities of
the Office of Naval IntellIgence. On two occasions Thomas K. Latimer,
Special Assistant to the Secretary of Defense, and Lt. Col. Elmer T.
BrookE (U.S.A.F.)~ Military Assistant in the Office of the Secretary
of Defense, quickly located, declassified, and provided lengthy manuscripts
pertaining to armed services intelligence developments sought
for this research. Dr. Peter Sheridan, an historian with the Congressional
Research Service, was the primary reader of the completed
manuscript. The final typescript copy was prepared by Denise Bruton,
research production staff, Government Division, Congressional
Research Service.
(353)

EXECUTIVE AGREEMENTS: A SURVEY OF RECENT
CONGRESSIONAL INTEREST AND ACTION 1
During the :past five years the Congress has become more and more
concBrned about the increasing number of significant commitments
entered into by the executive branch through executive agreements.
Three resolutions have been passed by the Senate expressing its sense
that agreements which provide for the commitment of U.S. forces and
of financial resources should be approved by the Senate as treaties or
otherwise submitted to t,he Congress for its approval before entering
into for~e. In addition, the Congress, in 1972, enacted a law requiring
the Secretary of State to transmit to it the text of all international
agreements other than treaties as they enter into force.
Moreover, between 1972 and 1974, several attempts have been made
to limit the spending authority for implementation of executive agreements
relative to military bases. During this time, the focus of congressional
action has shifted from the cutting off of funds for the
implementation of agreements already concluded to the settin~ up of
a procedure to be followed for future agreements which relate to
military bases and national commitments. In 1973 House and Senate
conferees agreed to work together toward a "legislative remedy" for
the executive branch practice of making commitments through executive
agreements without congressional consideration and approval.
This paper examines the extent of congressional concern over executive
agreements and identifies recent congressional actions aimed at
clarifying or limiting the making of executive agreements without
adequate congressional participation. 'While a certam amount of background
information is included, this paper is not intended as an indepth
study on executive agreements.I
"
1 This study was prepared by Marjorie Ann Brown of the Library of Congress,
Congres~ional Research Service, Foreign Affairs Division.
]a For information on executive agreements see Byrd, Elbert M., Jr. Treaties
and Executive Agreements in the United States: their :Separate Roles 8nd Limitations.
The Ha~e, Martinus Nijhoff, 1960. 276 p. [Bibliography, p. 254-261] ;
Henkin. Louis. Forei~ Affairs and the Constitution. Mineola, New York, F'oundation
Press. 1972. 553 p. See chapters 5 and 6, p. 129--188. notes on p. 372-434;
McClure, Wallace M. International Executive Agreements; Democractic Procedure
under the Constitution of the United St8tes. New York. Columbia University
Press, 1941. 449 p. [Bibliography, p. 409--423] ; Plischke, Elmer. Conduct of
American Diplomacy. 3d ed. Princeton, New Jersey, D. Van Nostrand, 1967. 617
p. See p. 370-468: U.iS. Congress. Senate. Committee on the Judiciary. Subcommittee
on Separation of Powers. Congressional Oversight of Executive Agreements.
He'lring~. 92d Congress, 2d session, on S. 3475, April 24 and 25; MlIv 12,
18, and 19, 1972. Washingtion, U.S. Govt. Printing Off., 1972, 668 p.; Whiteman,
Marjorie M.. Digest of International Law, v. 14. Washington, U.S. Govt.
Print. Off., 1970. See p. 193--255.
(355)
356
1. THE MAKING OF EXECUTIVE AGREEMENTS
Executive agreements, like treaties, are international agreements.
Most authorities agree that these two forms of international agreement
have no differences whi-.:h would make them unequal under internationallaw.
2
The Vienna Convention on the Law of Treaties, adopted by the
U.N. Conference on the Law of Treaties in 1969, defines "treaty" in
such a way as to include agreements of even the simplest form. This
Convention, signed by the United States in 1970, is not in force and is
currently pending before the ~enate Foreign Helations Committee.3
The distinguishing feature of executive agreements occurs, as reflected
by U.S. practice, in their enactment. Under Article 2, section
2, paragraph 2, of the Constitution, the President has the "Power, by
and with the Advice and Consent of the Senate, to make Treaties,
provided two-thirds of the Senators present concur; ..." The Constitution
does not formally and specifically refer to executive agreements,
and the practice has developed that the President may enter
into these agreements, which often go into force upon signature and
which of course are not submitted to the Senate under the treaty
clause.
A treaty and an executive agreement have identical effect in U.S.
domestic law in a number of ways: they can overrule conflicting state
law; they can be superseded by a more recent Act of Congress. There
is disagreement, however, on whether an executive agreement can,
like a treaty, supersede a prior statutory act. Certainly the nature of
the agreement and of its originating authority plays a part in its effect
in U.S. internallaw.4
However, the President does not always enter into these agreements
on his own authority. According to Department of State tabulations of
international agreements other than treaties entered into by the United
States between 1946 and April 1972, only 64 of the 5,589 agreements
were entered into solely on the President's constitutional authority
under Article 2, section 1 ("Executive Power") and fection 2 ("Commander
in Chief").5 In manv instances exerout;ve ll,O'reements «('aUed
legislative-executive agreements by some authorities) 6 are entered into
"See Whiteman, v. 14, p. 211 which quotes from Harvard Research in International
Law, Draft Oonvention on the Law of Treaties, Comment, American Journal
of International Law Supplement v. 29, 1005: 653, 697; and Sayre. The
Constitutionality of tht' Trade Agreements Act. Columbia Law Review v. 39,
1939: 751, 755. See II Iso Whitl'man. v. 14, 11. 212.
• According to this Convention, and for the purposes of the Convention,
" 'treaty' means an intl'rnational agrl"l'ment ron"IudM hetwl'l'n States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation"
(Article 2).
• See American Law Institute. Restatement of the Law, Second; Foreign
Relations Law of the United States. St. PaUl, Minnesota, American Law Institute
Publishers, 1965. p. 44()....446; Henkin, p. 184-187, p. 432-433; Plischke,
p. 421-422; Whiteman, v. 14, p. 253--254.
• U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Separation
of Powers. Congressional Oversight of Executive Agreements. Hearing
. . . 92d Congress, 2d Session, on S. 3475 . . ., April 24 and 25; May 12. 18,
and 19, 1972. Washin!!'ton, U.S. Govt. Print. Oft'., 1972. p. 409. Hereafter cited as
Separation of Powers Subcommittee hearings.
• Whiteman, v. 14, p. 21~211
357
pursuant to legislation enacted by the Congress or to treaties approved
by the ;Senate. In other lllstances the agreement is authorized and/or
implemented in subsequent legislation. Frequently the executive
agreement is entered into pursuant to a combination of these authorities.
The Secretatry of State has set forth guidelines and procedures
to be followed in determining whether an international agreement
should lead to an executive agreement or to a treaty (Circular 175
Procedure-ll Foreign Affairs Manual 700). These gmdelines are currently
being revised (See Federal Register in Appendix B, below).7
A comparison of statistics on the numbers of executive agreements
and of treaties entered into by the United States at different times
illustrates the overwhelming use now being made of executive agreements.
In 1930, 25 treaties and nine executive agreements were concluded
by the United States. In 1968 more than 200 executive agreements
,,,ere made and only 16 treaties.8 A table at the end of this
report provides statistics on the number of treaties and executive
agreements entered into annually between 1930 and 1973.
II. CONGRESSIONAL INTEREST AND ACTIONS BEFORE 1967
The Bricker Amendment initiative in the 1950's represents the major
period of congressional debate and action on the makin~ of executive
agreements prior to 1967.9 However, the debate-which opened with
the introduction in September 1951 of a Constitutional amendment by
Senator John W. Bricker and developed into an extensive controversy
by 1953 and 1954, when hearings were held and the resolution voted
on in the Senate-did not focus exclusively on the use of executive
agreements. Legislative interest and concern'encompassed both treaties
and executive agreements. The Bricker-Judiciary Committee amendment,
which resulted from the hearings, contained two paragraphs on
treaties and a .third paragraph on executive agreements which gave
Congress the "power to regulate all executive and other agreements
with any foreign power or international organization" and subjected
all such agreements to the same limitations imposed on treaties in the
amendment. By these limitations executive agreements would not be
valid if they conflicted with the Constitution. In addition, 'an executive
agreement would be effective in internal law only through legislation
enacted by Congress.
Two other significant amendments were offered during this period.
In January 1954, Senator Walter George introduced an amendment
which, provided that no treaty or executive agreement could contravene
the Constitution and required that an international agreement
other than a treaty should become effective as internal law only
7 These guidelines were orij1;inally hased on a policy statement made hy Secretary
of State John Foster Dulles before the Senate Committee on the Judiciary
in April 1953. The first form was set down on December 13, 1955; the procedures
were revised on June 6, 1969. See Separation of Powers Subcommittee
Hl'llr'n~s. n. 2F9 306. for texts ('If thl' 19'i!'i anrl100q ('ir"nlnrs.
• U.S. Congress. Senate. Committee on Foreign Relations. Transmittal of
Executive Agreements to Congress. Hearings . . . , 92d Congress, 1st session
on S. 596 ... , October 20 and 21,1971. Washington, U.S. Govt. Print. Oft'., 1971.
p.16.
• For discussion of earlier Senate debates over excessive use of executivr
agreements instead of treaties, see: Henkin, p. 426 footnote 16.
358
by Act of Congress. On February 2,1954, Senators William Knowland
and Homer Ferguson introduced an amendment which declared only
that no treaty or other international agreement could violate the Constitution.
There was no mention of congressional control of executive
agreements.
After the Judiciary Committee-Bricker Amendment failed by one
vote to pass the Senate on February 25, 1954, the major thrust of support
for the Bricker Amendment movement disappeared. Several versions
of Senator Bricker's amendment were introduced by him through
1957, but no floor action was taken on them. Bills of similar import
have continued to be introduced up until the present day.10
III. SENATE RESOLUTIONS: 196!l~ 1970~ AND 1972
A. National Oommitment Resolution, 1969
In 1969, after two years of hearings, reports, and debates, the Senate
passed S. Res. 85, which defined national commitments and indicated
that a U.S. national commitment should result "only from
affirmative action taken by the executive and legislative branches of
the United States Government by means of a treaty, statute, or concurrent
resolution of both Houses of Congress specifically providing
for such commitment." According to the resolution, which was passed
on June 25, 1969, a national commitment was "the use of U.S. armed
forces on foreign territory or a promise to assist a foreign country,
government, or people by the use of U.S. armed forces or financial
resources."
Concern over excessive use of executive agreements had been expressed
in the 1969 report of the Senate Committee on Foreign Relations
on the national commitments resolution:
The traditional distinction between the treaty as the appropriate
means of making significant political commitments
and the executive agreement as the appropriate
instrument for routine, nonpolitical arrangements has substantially
broken down.ll
B. Resolution on Spanish Bases Agreement
During 1970 this concern was crystalized within the Senate when
the Administration entered into an executive agreement with Spain
extending the original 1953 agreement covering American use of bases
in Spain (the agreement had already been extended in 1963). Despite
some Senatorial expressions that the agreement be submitted as a
treaty, it was concluded as an executive agreement.12 In December
10 For additional information on the Bricker amendment, see Price, Hugh P.
The Bricker Amendment and Similar Proposals for Amending the Treaty Provisions
of the Constitution, including a Selected Bibliography. December 2. 1964.
34 p. (Congressional Research Service. American Law Division. Multilith,
JX235A); Garrett, Stephen A. Foreign Policy and the American Constitution:
the Bricker Amendment in Contemporary Perspective. International Studies
Quarterly v. 16, no. 2, June 1972 : 187-220.
11 U.S. Congress. Senate. Committee on Foreign Relations. National Commitments.
Report ... to Accompany S. Res. 83 Washington, U.S. Govt. Print. Off.
191\9. (91st Congress. 1!'\t $e!'lsion. Senatp. Report No. 91-129) p. 26.
12 T.r.A.S. [Treaties and Other International Acts Series] 6924; 21 UST [U.S.
Treaties and Other International Agreements] 1677.
359
1970 the Senate adopted S. Res. 469, expressing the sense of the Senate
that nothing in the agreement with Spain should be deemed to be
a national commitment by the United States. According to the Foreign
Relations Committee report on this resolution, "the majority of committee
members still adhere to the opinion that the administration
should have submitted the agreement as a treaty." 13
O. Symington SubcomJmittee Hearing8 and Report
On December 21, 1970, a Senate Foreign Relations Committee special
Subcommittee on Security Agreements and Commitments Abroad
issued a report following two years of investigations and hearings. The
Subcommittee had been created January 23,1969, under the chairmanship
of Senator Stuart Symington. As a result of the hearings, a great
deal of information was disclosed for the public record on U.S. military
forces, facilities, and security programs in 13 countries, plus
NATO (North Atlantic Treaty Organization) .
The Subcommittee recommended that committees of Congress request
and receive full information on "all understandings and agreements
of a security nature" between the United States and other countries.
In addition:
COl.~ress should take a realistic look at the authority of the
President to station troops abroad and establish bases in
foreign countries. ~otwithstanding the general authority
which is contained in treaties and in Congressionally authorized
programs, no U.S. forces should be stationed abroad
or bases established abroad without specific prior authority
of the Congress in each caseY
This recommendation flowed naturally from the subcommittee's
observation that:
Overseas bases, the presence of elements of United States
armed forces, joint planning, joint exercises, or extensive
military assistance programs represent to host governments
more valid assurances of United States commitment than any
treaty or agreement.15
These hearings and report did not result in any specific legislation,
but have formed the general framework within which continuing concern
and legislative proposals have been formulated.
D. Re8olution on Agreement8 1vith Portugal and Bahrain
In March 1972 the Senate, by a vote of 50 to 6, passed S. Res. 214,
resolving that "any agreement with Portugal or Bahrain for military
bases or foreign assistance should be submitted as a treaty to the
Senate for advice and consent." The previous month, the Senate
Foreign Relations Committee in reporting out this resolution recalled
,. U.S. Congress. Senate. Committee on Foreign Relations. Agreement Between
the United States and Spain. Report to Accompany S. Res. 469. Washington, U.S.
Govt. Print. Oft'., 1970. (91st Congress, 2d Session. Senate. Report No. 91-1425)
p.4.
.. U.S. Congress. Senate. Committee on Foreign Relations. Subcommittee on
U.S. Security Agreements and Commitments Abroad. Security Agreements and
Commitments Abroad, Report. .., December 21, 1970. Washington, U.S. Govt.
Print. 08., 1970 (91st Congress, 2d Session Committee Print) p. 28.
15 Ibid., p. 20.
360
that "no lesson" had been learned from the experience with the
Spanish base agreement. The Committee stawd that these two executive
agreements raised "important foreign policy questions" and that
the "submission of these agreements as treaties . . . is the best and
most appropriate way" of scrutinizing these questions.16
IV. THE CASE ACT~ PUBLIC LAW 92-403
During 1972 the Senate also had before it S. 596, introduced by
Senator Clifford Case the preceding year. This bill provided for the
transmittal by the Secretary of State to the Congress of the text of
any international agreement other than a treaty no later than 60 days
a/te?' that agreement entered into force. The Act did not provide for
congressional action on the agreements but simply established a mechanism
for the transmittal of such information to Congress. Special
procedures were outlined for agreements which were not intended to
be made public. S. 596 was approved on August 22, 1972, becoming
Public Law 92-403. The White House issued a notice for the press
shortly after the signing of the bill quoting the report of the House
Foreign Affairs Committee that:
the right of the President to conclude executive agreements
is not in question here, or in any way affected by S. 596. Thus
the bill in no way transgresses on the independent authority
of the Executive in the area of foreign affairsY
This law is being implemented, and the agreements are monitored
within the Senate Foreign Relations Committee.1s
V. ATl'EMPTS TO LIMIT SPENDING REQUIRED BY EXECUTIVE AGREEMENTS
A. Naval Vessel Loans
In another initiative taken during 1972, the Senate and House attempted
to restrict the spending authority required to implement the
agreements with Spain, Portugal, and Bahrain. The Senate Armed
Services Committee, in reporting out legislation authorizing certain
naval vessel loans, including loans implementing the Spamsh Base
Rights Agreement, pointed out that "in the future the Congress will
not be bound by any commitment entered into by Executive Agreement
in advance of Congressional approval." The Committee also
agreed with its House counterpart that "Congressional a.pproval
should be obtained for the retentIOn of loaned vessels beyond the loan
period." 19 As finally enacted and approved in April 1972, the legislation
also included a stipulation that: "Any loan made to a country
18 U.S. Congress. Senate. Committee on Foreign Relations. Agreements with
Portugal and B!Jhrain. Rpp,>!'t to Accompany S. Res. 214. Washington, U.S.
Govt. Print. Off., 1972 (92d Congress, 2d Session. Senate. Report No. 92-632) p.5,
8. The agreement with Portugal relates to base rights in the Azores.
l' President Signs Bill on Transmittal to Congress of Executive Agreements.
Department of State Bulletin v. 67, October 23, 1972: 480-481.
18 case, Clifford P. Cooperation of Department of State under Public Law
92-403. Congressional Record [daily ed.l v. 119, June 18. 1973: SIJ315-S1l316.
19 U.S. Congress. Senate. Committee on Armpd Servi~s. Authorizing Certain
NaV'll1 Vessel Loans. Report to Accompany H.R. 9526. Washington, U.S. Govt.
Print. Off., 1972. (92d Congress, 2d Session. senate. Report No. 92-M4)p. 3.
361
uuder this Act shall not be construed as a commitment by the United
States to the defense of that country." 20
B. Portugal and Bahrain: Foreign Assistance Act
The Senate Foreign Relations and House Foreign Affairs Committees
in 1972 both addressed the spending issue in their reports on the
Foreign Assistance Act authorization. In reporting S. 3390 in May,
the Senate Foreign Relations Committee included a section, initiated
by Senator Case, providing that "no funds shall be obligated or expended
to carry out the agreements with Portugal and Bahrain ...
until the agreements have been submitted to the Senate as treaties for
its advice and consent." 21 The next section of the bill, also initiated
by Senator Case, applied this principle in a general way to all future
executive agreements relating to military bases. The s~ecific nature
of the agreements to be included is set forth in the leglslation.22 On
the Senate floor Bahrain was deleted from the first section; otherwise
the committee bill on this issue was retained. However, the entire
Foreign Assistance bill was defeated in the Senate.23
The House Foreign Affairs Committee, reporting out H.ll. 16029,
included a section providing "that no funds shall be obligated or expended
to carry out the agreement with Portugal . . . until the agreement
either (1) has been submitted to the Senate as a treaty ..., or
(2) has been submitted to both Houses of Congress for their approval
through a resolution." 24 The Committee declared: "When Congress
is asked to provide foreign assistance under an executive agreement, it
should have the right to approve the agreement itself." 25 This provision
was stricken from the bill on the House floor.26 The Senate
Foreign Relations Committee, reporting on this bill, put back the two
sections recommended in its earlier bill as amended by the Senate (in
which the Bahrain agreement was deleted)/7 but the 92d Congress adjourned
without a final Foreign Assistance Act. After the 93rd Congress
convened, the Foreign Relations Committee again reported a bill
with these two sections intact.28 The bill was not acted upon and for-
20 Public Law 92-270; 86 Stat. 118.
21 U.S. Congress. Senate. Committee on Foreign Relations. Foreign Assistance
Al't of 1972. Report ... to Accompany S. 3390. Washington, U.S. Govt. Print
Off., 1972. (92d Congress, 2d Session. Senate. Report No. 92-823) ; p. 24. The
agreement with Portugal relates to U.S. base rights in the Azores.
.. Ibid., p. 29-31.
.. On June 19, 1972, the Senate agreed to the retention of the first section, by
a vote of 36 yeas, 41 nays (Congressional Record [daily ed.] v. 118, June 19,
1972: S9653). On June 28.1972, the Senate agreed to deletion of the Bahrain
agreement from the first section (Congressional Record [daily ed] v. 118, June
28. 1972: S105"9). S. 3390 was rejected in the Senllte on July 24, 1972.
.. U.S. Congress. House. Committee on Foreign Affairs. Foreign Assistance Act
of 1972. Report ... on H.R. 16029 ... Wa8hin/rton, U.S. Govt. Print. Off., 1972.
(92d Congress, 2d Session. House. Report No. 92-1273) p. 8-9.
.. Ibid.
.. Congressional Record [daily ed.] v. 118, August 9, 1972: H7440.
11 U.S. Congress. Senate. Committee on Foreign Relations. Foreign Assistance
Act of 1972. Report to Accompany H.R. 16029. Washington, U.S. Govt. Print. Off.,
1972. (92d Congress, 2d Session. Report No. 92--1182) p.23-29.
.. U.S. Congress. Senate. Committee on Foreign Relations. Foreign Assistance
Act of 1973. Report ... to Accompany S. 837. Washington, U.S. Govt. Print.
Off.,1973. (93d Congress, 1st Session. Senate. Report No. 93-62) p.23-27.
362
eig-n assistance funds were authorized through the end of the fiscal year
by a continuing resolution.29
C. Portugal and Future Base Agreements: State Department
Autlwrization .
In 1973 the Senate Foreign Relations Committee also included in the
~epartment of State Authorization Act of 1973 the two sections prevIOusly
agreed to by the Senate in the Foreign Assistance Act authorization
bills.30 The two sections were retained by the Senate in floor
action as part of the State Department authorization bill.31 In the
conference report, which was filed in the House in July, the Senate
receded on the section prohibiting the obligation or expenditure of
funds to carry out the agreement with Portugal on bases in the Azores
until the agreement was submitted to the Senate as a treaty for its
advice and consent. The House conferees receded on the second section,
with an amendment under which foreign military base agreements
must be approved either by passage of a concurrent resolution by both
Houses or by the Senate giving its advice and consent to a treaty.32
This amendment was similar to the amendment to the Foreign Assistance
Act adopted by the House Foreign Affairs Committee in 1972.33
Two sections of the conference report, including this one, were rejected
by the House as being non-germane.34 After further consideration
in both Houses another Conference was agreed to.35 In the second
conference report the Senate receded on the remaining provisions relating
to executive agreements, the report was agreed to by both Houses,
and the bill was approved by the President on October 18, 1973. According
to the report:
The managers of both the Senate and the House are concerned
with the problem sought to be corrected by the Senate provisions
and strongly support the principle at stake. Both
agree to pursue a legislative remedy to the problem in the
next session.36
D. State Department Authorization Act, 1974-
On May 20, 1974, the Senate passed, without debate, the Department
of State/USIA Authorization Act, Fiscal Year 1975 (S. 3473).
• H.J. Res. 345 was passed by the House and Senate on February 28, 1973,
and approved by the President on May 8, 1973 (Public Law 92-9) .
.. U.S. Congress. Senate. Committee on Foreign Relations. Department of
State Authorization Act of 19~3. Report ... on S. 1248 ... Washington, U.S.
Govt. Print. Oft'., 1973. (93d Congress, 1st Session. Senate. RepOrt No. 93-176)
p.32-35.
11 An amendment to strike the first section from the bill was rejected on June 12,
1973 (Congressional Record [daily 00.] v.119, June 12, 1973: 810988). An amendment
to strike the second section from the bill was rejected on June 14, 1973
(Congressional Record [daily 00.] v. 119, June 14,1973: Sl1182-S11183) .
.. Congressional Record [daily ed.] v. 119, July 10, 1973: H5818, H5820-H5821
(93d Congre~s, 1st Session. House. Report No. 93-367) .
.. See page 361.
.. Congressional Record [daily ed.] v. 119, September 11, 1973: H7i26, H7727.
.. Congressional Record [daily ed.] v. 119, September 26, 1973: SI7689. The
Senate amended the House amendment of the conference report, reinserting the
deleted sections and insisting on its amendments.
.. Congressional Record [daily ed.] v. 119, October 9, 1973: H8762 (93d Con·
gress, 1st Session. House. Report 93-563).
363
This bill carried two sections which had been initiated by Senator Case
and approved by the Senate Foreign Relations Committee: section 10,
on military base agreements, and section 11, on the Diego Garcia
agreement.
According to section 10, no funds may be obligated or expended to
carry out specified types of agreements unless the Congress approves
the agreement by law or the Senate exercises its advice and consent
prerogative with respect to such a treaty. Section 10 identifies the
agreement as one which (1) provides for the establishment of a military
installation with an assigned, authorized, or detailed personnel
strength of more than 500, at which U.S. armed forces units are to be
assigned; (2) renews or extends the duration of any such agreement;
or (3) makes changes which "significantly" alter the terms of such an
agreement. According to its report, the Foreign Relations Committee
rejects the argument that the appropriations bills are the proper mechanism
for congressional consideration of such foreign policy questions.
In the Committee's view, these issues must be addressed explicitly by
the Foreign Affairs and Foreign Relations Committees.
Section 11 of the Senate-passed legislation requires that no steps be
taken to implement any agreement signed on or after January 1, 1974,
by the United States and the United Kingdom relating to the establishment
or maintenance by the United States of any military base on
Diego Garcia until the agreement is submitted to Congress and approved
by law. The report notes that the Senate Foreign Relations
Committee is "united in the view that Congress should approve whatever
policy is to be pursued." Furthermore, "Congress should be integrally
involved in the process by which U.S. policy is established in
this important area of the world." 31
VI. DISAPPROVAL PROCEDURE FOR EXECUTIVE AGREEMENTS
In April 1972 Senator Ervin had introduced S. 3475, a bill providing
for the transmittal to the Congress by the Secretary of State
of all executive agreements-international agreements other than
treaties. Any such agreement would come into force at the end of
60 days unless both Houses passed a concurrent resolution stating in
substance that both Houses did not approve the executive agreement.
The Separation of Powers Subcommittee of the Senate Judiciary
Committee held extensive hearings in April and May 1972, but no
action was taken in the 92nd Congress.3S The bill was re-introduced in
the 93rd Congress (S. 1472) and is pending before the Judiciary
Committee as S. 3830 (it was amended by the subcommittee). Thil:'
bill would take the Public Law 92-403 procedure one step further,
invoking a disapproval procedure similar to that provided in the
Atomic Energy Act (as amended in 1958 by Public Law 83-479) for
IJ1 u.s. Congress. Senate. Committee on Foreign Relations. Department of
State/USIA Authorization Act, Fiscal Year 1975. Report ... together with
Supplemental Views on S. 3473 ... , May 9, 1974. Washington, U.S. Govt. Print.
Off., 1974, (93d Congress, 2d Session. Senate Report No. 93-838) p. 19.
38 See above page 2, footnote 1 for full citation to these hearings which total
668 pages.
70-890 0 - 76 - 24
364
disapproval of agreements of cooperation relative to military application
of atomic energy material or information.39
This report has not discussed any of the legislation introduced but
not in some way acted upon by Congress. A listing of legislation pending
in the 93rd Congress as of August 23, 1974 on the making of international
agreements other than treaties is contained in Appendix C.
VII. FUTURE CONGRESSIONAL CONCERNS
The debate within the legislative branch over the proper role of
the Congress in the making of international agreements is but one
phase of Congress' activities as it seeks to restore a better balance
of powers between the legislative and executive branches of government
as envisioned by the Constitutional framers. The current level
of congressional partIcipation in the making of executive agreements
occurs primarily after the agreement enters into force, with the receipt
of the texts of all international agreements other than treaties
within 60 days after they enter into force. Expanded procedures may
be devised, such as those envisioned in the Senate ve.rsion of the State
Department Authorization Act of 1974 for agreements dealing with
military installations abroad or in the Ervin bill mechanism for disapproval
of executive agreements before they enter into force. Nonetheless,
the committees of. Congress may, as the Symington Subcommittee
recommended, want to remain vigilant as well as persistent in
their pursuit of information and in their oversight of the executive
branch in the broad field of foreign policy and international relations.
.. Section 123d of Atomic Energy Act as amended (42 USC 2153d): The
proposed agreement for cooperation, together with the approval and determination
of the President, if arranged pursuant to section 2121(c), 2164(b), or
2164(c) of this title, has been submitted to the Congress and referred to the
Joint Committee and a period of sixty days has elapsed while Congress is in
session, but any such proposed agreement for cooperation shall not become
et'l'ective if during such sixty-day period the Congress passes a concurrent resolution
stating in substance that it does not favor the proposed agreement for
cooperation. . . .
Pending in Congress, as of August 23,1974, is legislation which would institute
a similar procedure for certain international agreements for civil uses of nuclear
energy (S. 3698, Conference report: H. Rept. 93--1299).
365
APPENDIX A
STATISTICS ON EXECUTIVE AGREEMENTS AND TREATIES
ENTERED INTO BY THE UNITED STATES, 1930-1945; 1946-
1973
1930-1945 1946-1973
Year of Official Executive Year Executive
Printing Treaties Agreements Concluded Treaties Agreements
1930 26 11 1946 19 139
1931 13 14 1947 15 144
1932 11 16 1948 16 178
1933 9 11 1949 22 148
1934 14 16 1950 11 157
1935 25 10 1951 21 213
1936 8 16 1952 22 291
1937 15 10 1953 14 163
1938 12 24 1954 17 206
1939 10 26 1955 7 297
1940 12 20 1956 15 233
1941 15 39 1957 9 222
1942 6 52 1958 10 197
1943 4 71 1959 12 250
1944 1 74 1960 5 266
1945 6* 54 1961 9 260
1962 10 319
*This includes the still unpublished 1963 17 234
water treaty with Mexico, in force 1964 3 222
since November 8, 1945. Dept. of 1965 14 204
1966 14 237
state Bull., Dec. 2, 1945, p. 901. 1967 18 223
1968 18 197
Source: Borchard, Edwin M. Treaties 1969 6 162
and executive agreements. American 1970 20 183
political science review v. 40, no. 4, 1971 17 214
August 1946: 735. 1972 20 287
1973 17 241
Source: Department of state. Office
of the Assistant Legal
Adviser for Treaty Mfairs.
August 1974.

367
APPENDIX B
DEPARTMENT OF STATE REVISION OF CIRCULAR 175 PROCEDURE
Interested persons are invited to sub- f. That t\uthorization to Sim the find
mit written comments, or suggestions text is obta.1ned and appropriate e.r~
DEPARTMENT OF STATE regn.rdi.ng the proposed revision to the rangements for signature are ma.de;
lPubltc Notice 39151 ~~~~~~ffi~~~th:t~~~rAd~~~r.~Z re:~l;:~~~e~f j~h~o~::n1~tW~~ ~~:
TREATIES AND OTHER INTERNATIONAL 5420, Department of State, Wa.shington., transmission of the texts of InternatIonal
ACREEMENTS D.C., 20520, not later than September 21, agreements other than treaties to the
Notice of Proposed Rulemaking 1973. ~~~c~~~n S:it~:aZt~:) ~r~t~~; 1~~
Consideration Is being given by the 70o-TREATIE5 AND OTHER INTERNATIONAL ternatlonal agreements (see section 725)
Department of State to the revision of AGREEMENTS and treaty provisions on registration (see
Chapter 700 of Volume 11 of the Foreign 710 Purpose. 8. The purpose of this section 750.2-3).
At!T~r:p~:posnu:~revision Is a codification ch..apter is to ensure that orderly and 721 ExERCISE OF THE INURNATIONAL
W11form procedures are followed In the .ACREEMENT POWER
of Department of State Circular 175 negotiatIon. signature, publication and
dated December 22, 1955, 1lS amended registration of treaties and other inter- 721.1 Determination of Type of AOTceand
isSued in Chapter 700 or Volume 11 national agreements of the United ment. 'I11e following principles, considof
the Foreign Affairs Manual. The For- States. It is also designed to ensure the crations, and procedures wUl be observed
elgn Affairs Manual fFAM) Is an inter- maintenance of complete and accurate tn detennining whether an international
nalinstruction for Department of State records on treaties and a.greenten~ and alJI'eement shall be deaJt with by the
personnel. Chapter 700 ot Volume 11 ha.s the pUblication of authoritaUve Informa.- United States as a treaty to be brought
h~:etofore been available for public in- Uon concerning tbe.lll. into force with the advice nnd consent
spection nnd copying in accordance wIth b. 'I11e chapter Is not a catalog of all of the Scna.te. or as an executive agree5
U.S.C. 552(a) (2). However. revisions the essentla.l rules or lnfonnatton per- ment to be brought Into force on some
thereto have not previowdy been pUb- talning to the making and appIlcation of other constitutional basts.
Ushed for the Information of the public international agreements. It is limited to 721.2 Constitutional Requirements.
and with an opportunity for pUblic com- .:~atlons necessary for general guid- ~~~~: :~:~ed~~~;n~hetht~~d
ment thereon. The proposed revision Ja States becomes a party to international
being pUblished because of the publlc 720 NEGOTIATION" AND SICNATU1Ui: agreements. Those procedures and the
Interest In the ma.m ' . in 'lr.Ihlch treaties '120.1 Circular 175 Procedu.re. This consUtuUOl'l:oJ. parameters of each a.re~
and other lntematI. . oJ agreements are subchapter is a codification of the sub-·· (a) Treaties: Intem:ltlonal agreeentered-
Into by the united states. stance of Deportment Circular No. 175. mcnts (regardless of their tltle. des1gna-
The current reVision Is eo subsumUve December 13. 1955. as amended. on the tiOD or form) whose entry into force With
one with respect to the sections regard- negotiation and signature of treaUes and respect to the United States takes pla.ee
1ng the constltutlonal bases on which· exeeuUve agreements. It may be referred. only after the senate has given Its advice
treaties and other tnternn.ttonal a.gree-. to tor convenience and continuity as the and consent are "treaties", The Prestments
are entered Into by the United "CIrcular 175 Procedure:' dent. with the advice and consent of twOStatel'i.
the sections regardtng- consuItn~ 720.2 Qeneral Obiectfoer. 'I1le obJec. thirds of the senators present. may en-
~o~~~f~~h~~l~;r~~~n:uwt;~~:~ tives are to ensure: .~ I~U~j~~ ~;:~~~~~~lc:::~~~;~.
coopera.te In the application of the Case a. Th:\t the making ot treaties and eign relaUons so long RS the agreement
Act n U.S.C. 112(b» which requires oUler lnternatlonal agreemenl-.s for the docs not contravene the United States
that all International agreements other United States is carried out witb1n eon- Constitution; and
than treaties be transmitted to the Con- stitUtional and other appropriate llmIts; fb> Exccutive agrcements: Intemagress
within 60 days alter they enter Into b. That the objectives to be sOught in ttonaJ agreements brought Into foree with
force. Otherwise, the rev1s1on is merely the negotiation of particular treatles and. respect to the United States on a cona
rearrangement of other existing sec- other international agreements are 8.p.- stltutlonal basis other than with the
t10ns with some edttortal tmprovement. proVed by the 8eeretan or an officer spe- advice Bond consent ot the Senate are
The purpose of the revlsed procedures clfically authorized by him for that •"executive agreements" (international
Is to cnsure (l) that orderly and W11fonn purpose: agreements other than treaties). There
procedures are followro in the negotia- c. L1lat timel,. and appropriate contion
and signature of treaties and other mltation is had with congressIonal
international agreements: (2) that con- . leaders and Committees on treaties and
stitutional ba.c;es of authority are fol- other international agreements;
lowed in the making of treaties and other d. 'I11at firm positions departing from
International agreements by the Unlted authorized positions are not undertaken
Stales; (3) that timel,. and otherwise in negotiations without the approval ot
appropriate consultation with the Con- the Legal Adviser and the Interested 88gress
is had with respect to the negoUa.- sistant secretaries or their depuUes;
t10n of international agreements and e. That the final texl$ developed are
the procedure by which they are brought appro\'cd by the Legal Adviser and the
Into force; and (4) that the laws regard- Interested assistant secretaries or their
lnfl the transmission of thternationaI d~uties and. when required. brought a
agreements other than treaties to the reasonable time before signature to the
Congress and the publication ot treaties attention of the Secretary or an officer
Md other international agreemenL$ are specifically designated by him for r.hat
fait.hfuIJY ~servcd. purpO.'ie;
Source: Federal Registel', v. 138, August 15, 1973: 22084-22091.
are three constitutional bases for executive
agreements a." set forth below. An
international agreement may be concL!
c,ed i"mrsuant to one or more of these
consti tutional ba.~es:
Ii) Exccuti!Je QQfCemellts TJlirl-'uQllt to
treaty: The Pre.">ident may conclude an
international agreement pursuant to a
treaty brought into force v,rith the advice
and consent of the Senate, who.">e provisions
constitute authorization for the
agr~emfntby the Executive without sUbsequent
action by the Congress;
(ii) Executive agreements pursuant to
legislation: The President may conclude
an international agreement on the basis
of ~xisting legislation or subject to
legislation to be enacted by the Congress;
and
(iii) Executive agreements pursuant to
the constitutional authority of the President:
':lhe President may conclude an international
agreement on any subjed
within his constitutional authority sO
long as the a~reement is not inconsistent
with legislation enacted by the Congress
in the exercise of its constitutional authority.
The constitutional sources of authority
for tht President to conclude
international agreements include:
(1) The President's authority as Chief
Executive to represent the nation in
foreign affairs:
(2) The President's authority to receive
Ambassadors and other public ministers;
(3) The President's author1ly as
"Commander-In-Chief";
(4) The President's authority to "take
care tha.t the laws be faithfully executed".
721.3 Criteria lor Scleclinq Among
Constitutionally Authorized Procedures.
In determining a Question as to the procedure
which should be followed for any
particular international agreement due
consideration is given to the follOWing
factors along with those in section 721.2.
(a) Domestic factors: (t) Whether the
agreement Involves important int(rests,
commitments or risks affecting the nation
as a whole;
(il) Whether the agreement would affect
State laws or the powers reserved
to the States under the Constitution;
<iiD Whether the agreement can be
given effect without the enactment of
6ubsequent·legislation by the Congress;
(iv) Past United States practice with
respect to similar agreements;
(v) TIle 'preference of the Congress
wtth respect to a particular type of
agreement.
(b) International factors: (i) The degree
of fonnality desired for an agreement;
(ij) The proposed duration of the
agreement, the need for prompt conclusion
of an agreement and the desirabil.
ity of concluding a routine or short term
agreement;
(iii) The general international practice
With respect to similar agreements.
In detennlning whether any international
agreement should be brought Into
force as a treaty or as an executive agreement
the utmost care shall be exercised
to avoId any invasion or compromise of
368
the constitutio I powers of the Senate,
the Congress a: whole, or the Pl·esident.
721.4 Questi01t$ as to Type 01 Agreement
to be Used; Consultation with Congress.
(al AU legal memorandwns accompanying
Circular 175 reque!it.<; (see section
722.3(c) (iii) will discuss thoroughly
the ba.">es for the type of agreement
reconmlendC'd.
(b) When there is any question
whether an intemational agreement
should be concluded as a treaty or as an
executive agreement, the matter is
brought to the attention of the Legal Adviser
of the, Department, If the Legal Ad~
viser considers the Question to be a serious
one, he will transmit a memorandum
thereon to the Assistant Secretary for
Congressional Relations and other officers
concerned. Upon receiving their
"iews on the subject he shall, if the matter
has not been resolved, transmit a
memorandum thereon to the Secretary
for his decision. Every practicable effort
....ill be made to identify such Questions
at the earliest possible date so that consultations
may be completed in sufficient
time to avoid last-minute consideration.
(c) Consultations on such Questions
will be held with congressional leaders
and committees as may be appropriate.
Arrangements for such consultations
shall be made by the Assistant secretary
for Congressional Relations and shall be
held with the assistance of the Office of
the Legal Adviser and such other offices
as may be determined. Nothing in this
section shall be taken as derogating from
the requirement of appropriate consultations
with the Congress in accordance
with section 723.1e in connection with
the initiation of, and developments during,
negotiations for international agree~
ments. particularly where the agreements
are of special interest to the Congress.
722 ACTION REQUJRrD IN NEGOTIATION
AND/OR SIGNATURE OF TREATIES AND
AGREEMENTS
722.1 Authorization Required to Undertake
Negotiations. Negotiations of
treaties, or executive agreementli, or fOf
their extension or revision are not to be
undertaken, nor any exploratory discussions
underta~en with representatives of
another government. until authorized in
writing by the Secretary or an officer
specifically authorized by him for that
purpose. Notification of termination of
any treaty or executive agreement requires
similar authorization.
722.2 Scope of Authorization. Approval
of a request for authorization to negoti·
ate a treaty or other international agreement
does not constitute advance ap·
prova! of the text nor authori?.ationto
agree upon a date for signature or to
sign the treaty or agreement. Authorization
to agree upon a given date for. and
to proceed With. signature must be specifically
requested in Writing, as provided
in section 722.3. This applies to treaties
and other agreements to be signed
abroad as well as those to be signed at
Washington. Special instructions may
be reqUired, because of the special circumstances
involved, with respect to
multilateral conventions or agreements
to be signed at intemationaJ conferences.
722.3 Request for Authoriz.alioll to Negotiate
and/or Sign; Action Memorandum.
(a) A request for authorization to
negotiate and/or sign a treaty or other
international agreement takes the form
of an Action Memorandum addressed to
the Secretary and cleared with the Office
of the Legal Adviser, the Office of the
Assi.">tant Secretary for Congressional
Relations. otiler appropriate bureau.">.
and any other agency (such as Defense,
Commerce, etc.) which has primary responsibi1il.
y or a substantial interest in
the subject matter. It is submitted
through the Executive Secretariat.
(b) The Action Memorandum may reQuest
one of the following: (j) authority
to negotiate, fii) authority to sign, or
(iii) authority to negotiate and sign. The
request in each instance states that any
substantive changes in the draft text will
be cleared with the Office of the Legal
Adviser and other specified regional
and/or runctlonal bureaus before definitive
agreement is reached. Drafting
offices consult closely with the Office of
the Legal Adviser to ensure that all legal
requirements are met.
(c) The Action Memorandum is ~ccompanied
by m the draft, if available,
of any agreement or other instrument
intended to be negotiated, (iil the text
of any agr~m~nt and related exchange
of notes, agreed minutes or other document
to be signed"and <iii) a memorandum
of law prepared in the Office of the·
vgal Adviser.
(d) Where it appears that there may
be obstacles to the immediate public disclosure
of the text upon its entry into
force. the Action Memorandwn shaJl inclUde
an explanation thereof (see sec~
lions '723.2 and 723.3) .
722.4 Se1KlrGt~ Authorizations. When
authorization Is sought with respect to a
particular treaty or other agreement,
either mult.ilateral or bilateral, the Action
Memorandum for this purpose out~
lines briefly and clearly the PrincipaJ
features of the proposed treaty or other
agreement. indicates any special problems
which may be encountered, and, if
possible, the contemplated solutions of
those problems.
722.5 Blankd Authorizations. In general.
blanket authoriZations are appropriate
only in those instances where,
in carrying out or givipg eJIect to provisions
of law or pollcy decisIons. a series
of agreements of the same general type
is contemplated; that is, a number or
agreements to be negotiated according to
a more or less standard formula (e.I.,
P.L. 480 Agricultural Commodities Agreements:
Educational Exchange Agreements;
Investment Guaranty Agreements;
Weather Station Agreements,
etc.) or a nwnber of treaties to be negotiated
according to a more or less standard
formula <e.g., consular-conventions;
extradition treaties. etc.). Each request
for blanket authorization shall specify
the ofllcer or officers to whom the au~
thority is to be delegated. 'the basic precepts
under section 722.3 apply equaIly
to requests for blanket authorizations.
722.6 Certfflcate on FOTe!gn-Langtutge
Text. (a) Before any treaty or other
ag:I"l"{'mcnt containi~g a fo,c!~·Ian~uage
«,xt i5 laid before the Secretary (or any
per~on authorized by him I for signature.
either in the Deparlmf';)t or at a post,
a sig-ned memorandum must be obtained
from a respomible In.ngu3.gc officer of the
Department certifying that tile for",lgnlanguage
text and the Engllsh-langua~e
text ate in conformity with each other
and t!la.t both texts have the same meaning
in all substantive Tt-~p(.-cts. A simllar
certification must be obtained for ex_
changes of notes that set forth the teI1IUl
of an agreement in two languages.
(b) In exceptional circumstances the
Depa.rtment can authorize the certifl.ca-Uon
to be made at a post.
722.7 Transmission 0/ Texts to Secretary.
The texts of treaties and other international
agreements must be completed
and approved in writing by all re.
sponsible officers concerned sufficIently in
advance to give the Secretary. or the person
to whom authority to approve the
text has been delegated. adequate t1me
before the date of slgn.lng to examIne
the text and dispose of any Questions that
arIse. P06ts must transmit the texts to
the Department as expediUously as feasible
to assure adequate time for such
consideration. Except as otherwise
spectflcally authorized by the Secretary.
a complete text of a treaty or oUler international
a!:Teement must be delivered
to the Secretary or the Acting Secretary,
or other person authorized to approve
the text. before any such text is aJrCeed
upon as final or any date is agreed upon
tor it.s sJgnature.
123 RESroNSIBILITY' OF OnTe!: OR OFFICER
CONDUCTIlfC NECOTIAnONS
723.1 Conduct 01 Neootiations. TIle offlce
or omcer responsible for any neg()tiatlons
must ensUre:
a. That during the negotIations no p0sition
15 communicated to a foreign government
or to an International organiza.tion
as a United States pos1t1on that goes
beyond any existing aut.b.or1ZQ.t!on or in·
structlons;
b. That no proposal 18 made or position
fs agreed. to beyond the original authorization
without approval by the ap)lroprtate
assistant secretaries PI:' their deput.
ies, the Legal Adviser's Omce. and also.
in the case of the trestles or other international
agreements which concern responsibilltles
ot AID. the Director of AID.
or his Deputy;
c. That all slgnjficant l>OlIcy-detennlntng
memorandwns and 1nstructions to
the field on the subject of the negotiatlons
are submitted to and cleared by
the Office of t.he Legal Advlser. all assistant
secretaries concerned or theIr
deputies. and also. in the case of treaties
or other international agreements which
concern responslbiUt1es. ot AID. the Director
of AID. or his Deputy:
d. That the Secretary Is Upt Informed
In wrtung ot Iml>Ortant polley deelslona
and developments, 1nc!uding &n7 particularly
algnUIcant departures from
substantlaJ)y _ drafts _ ban
been evolved;
369
e. Tha.t with the a<h ,. ~ and assistance
of the Assistant seef( ry for CongressIonal
Relations. the a.ppropriate congressional
leaders and commft.tee3; are
ndvtsed of the intention to negotiate significant
new International agreements.
consulted concern!J.lg such agreements.
and kept lnfonned of developments affectinE!
them. tncluding especIeJJy
whether any legisla.tion is considered
necessary or desirable for the implement3.
tlon of the new treaty or agreement.
Where the proposal for a.ny especloUly
important treaty or other international
agreement 15 contemplated.. the Office of
the Assistant Secretary for Congressional
Rdll.tions will be informed. as early
as possible by the office responsible for
the SUbject:
1. That in no case, after accord haa
been reached on the substance and wording
of the texts to be signed. do the negotiators
sign an a~eementor exchange
notes constituting an agreement untU a
request under sectJon 722.3 for author·
iza.tIon to sign has been approved and. 1f
at a post abroad. until finally instructed
by the Department to do so as stated
in section 730.3. If an agreement is to
be signed in two languages. each language
text must be cleared in full wtth
the :La.nonuage services Division or. 1f at
a pOst abroad. with the Depa.rtment before
signature, as required by section
122.6;
g. TI1a.t due consideration Is given n.lso
to the provisions ·of sections 123.2-723.9,
730.3. a.nd 731 of this Cha.pter~ and
h. That. 1n any case where any other
department or agency 18 to playa prt·
mnry or sifmificant role or has a major
interest in negotiation of s.n international
agreement. the appropriate official
or officials msuch department or agencT
are infonned of the necessity of complying
with the requirements of th1s
subchapter.
723.2 Avoiding Obstacles to Publication.
and-Registration. The necessity of avoid.
Ing a.ny comm1tment Incompa.tible with
the law requlrlng pubUcaUon (see section
725) and with the treaty provlsiOl'Ul
requiring registration (see section 150.23)
should be borne in mind by U.S. negotiators.
Although negotiations may be
conducted. on a confidential basts. evet'7
practicable effort must be made to assure
that any deflnJtive agreement or COIIlmitment
entered into wtll be devoid of
any aspect whIch would prevent the
pUblication and reg1strntlon of the
agreement.
123.3 Questions on Immediate Public
Disclosure. In any tnstanee where It appears
to the u.s. representat.ives that
the immediate pubUc disclosure upon Its
entry Jnto force of an. agreement under
negotiation would be prejudicial to the
national security of the United states.
the pertinent circumstances shall be reported,
to the SecretarY of State and his
deciston awtIJted before any fUr1'J:ler action
II taken. Where SUch circumstances
are known before authorizat1on to negotiate
or 10 sign Is requested. they shall be
included in the request tor authorization.
All such reporta and requests are to be
clc:\rcd with the Office of the Legal
Advi!';er.
723.4 Public Stal('m~nts. No publlc
statement is to bc Illade 1ndicating thflt
rtg-ferment on a text has been TPf}.,hed.
or that negotiations have bCf'n l;UCCe-S~fully
completed. before authorization is
granted to si~n the treaty or other agreement.
If such authorization ha.'5 been
granted subject to a condition that no
substantive chang-e in the proposed text
1s mnde l\oithout concurrence of the Office
of the Leg-al Advls('r and other ~pecified
offices, no such public statement 1s
to be made until definitive agreement on
the text ha.s been reached with the concurrence
of the Office of the Legal Adviser
and the other specified offices. Nor~
mnlly, such a pubUc statement .Is made
only at the time a treaty or other agreement
Is actually signed. inasmuch as it
re-maih.'> possible that last-mJnute
changes will be made 10 the text. AnY
such statement prior to that time must
have the concurrence of the Office 01 the
Legal AdvIser. the offiee of the Assistant
Secretary for Congressional Relations.
and the other specified offices. and the
approval of the Secrek'uy or the DeP'l.U'tment
principal who onginally a.pproved
the Action Memorandum request under
"Circular 175 Procedure."
723.5 EnuHsh-Lan.cruaue Text. Neg-otlators
will assure that every bilateral
treaty or other international agreement
to be signed for the United State$ contains
an EnglIsh-language text. If the
lanJruage or the other country concerned
is one other than English the text shall
be done in EngHsh and. if desired by the
oUter country. In the language of that
country. A UnJted states not.e that con..
st.itutes part of an international agreement
effected by exchange of notes shall
always be in the Emdish-Ianguage. 11
it QUotes in full a forehm omce note the
quotation shsll be rendered. in English
translation. A U.s. note shaH not be In
any language In addition to EngI18h unless
l;ipeciflcaJly authorized. The note at
the other government concerned may be
in whatever language that government
desires.
123.6 Transmission 01 Signed Texts to
Assistant Legal Adviser lor Treat1l Affairs.
a. The ofDcer respOnsible for the
negotiation 01 a treaty or other agreement
at any post is responsible for ensuring'
the most exDedtttous tmnsttlission
of the signed original text. together
with all accompanying pa.pers such aa
agreed minutes, exchanges of notes.
agreed Interpretations. plans. etc.• to the
Department for the attention of the Assistant
Legal Adviser for Treaty Affa1rs:
Provided. That where originals are not
available accurate certified copies are obtained
and transmitted as in the case of
the original. (Bee sections 723.1. 723.8
and 723.9). The transmittal is by Wr..
gram. not by tmnsmittal slip or Operations
Memorandum.
b. }JJy oflloer in the Department having
in h.is possession or receiving from
any source a sJgned original. or certUled
OOPT of a treaty or agreement or of a note
or other document constituting a Part of
a tre.aty or ar:::ref"ment must forward such
document.s immediately to the Assistant
Legal Adviser for Treaty Affairs.
723.'1 Transmission of Certified Copies
to the Department. When an exchange
of diplomatic notes between the mission
and a foreign govcrnment .constitutes an
agreement or has the effect of extending,
modifying, or terminating an agreement
to which the United States is a. natty,
a properly certified copy of the note from
the m1ss1on to the foreign government,
and the signed original of the note from
the foreign government. a.re sent, as soon
as practicable, to the Department for the
attention of the Assistant Legal Adviser
for Treaty Affairs. The transmittal is by
altgram. not by transmittal slip or Operations
Memorandum.
Likewise. if, in addition to the treaty or
other agreement signed, notes related
thereto are exchanged (either at the same
tIme. before hand or thereafter) , a. properly
certtfied copy (copies) of the note(s}
from the mIssion to the foreign govern·
ment are transmitted with the signed
origlna}(:s) of the no!.e(s) from the foreign
government.
In each Instance. the mission retains
for Us files certified copies of the note
exchanged. Tht! United States note Js
prepl1red In accordance with the rules
prescribed 1n the Correspondence Handbook.
The note of the foreign govern~
ment is prepared In accordance with the
style of the foreign office and usually in
the la.ngua.ge of that country. Whenever
practJcable, arrangements are ma4e lor
the notes to bear the same date.
723.8 CertifiCation 0/ Copies. If a copy
of a note is a part of an international
agreement. such copy is certified by a
duly commissioned and Qualified Foreign
Service officer either (a) by a certification
on the document itself, or fb) by a
sepQrate certification attached. t<> the
document. A certification on the document
Itself is placed at the end of the
document. It indicates, either tYPed or
ruhber stamped, that the document is a
true copy of the original signed (or initialed)
by (insert lull name 01 signing
o/ficer). and it is signed by Ule certUying
omcer. If a certification is typed on a
separate sheet of paper, it briefly describes
the document certified and states
that it Is a true copy of the Original
signed (or initialed by) (full name) and
1t is signed by the certUying officer. The
certification may be stapled to the copy
of the note.
723.9 Preparation 0/ Copies for Certittcation.
For purposes of accuracy of the
Department's records Rnd publicaUon
and registration. a certified COpy must be
an exact copy of the signed original. It
must be made either by typewriter (ribbon
or carbon copy) or by facsimile
reproduction on white durable paper (not
by the dupUmat method) and must be
clearlv legible. In the case of notes. the
copy shows the letterhead. the date and.
I! signed. an indication of tile signature
or. if merely initialed, the initials which
appear on the original. It is suggested
that, In the case of a note trom the mis5ion
to the toreign government, the copy
for certification and transmissIon to tile
370
Department be m:'· ~ at the same time
the original is pre 'red. If Ule coPY 15
made at the same .ime. the certIficate
prescribed in section 723.8 may state Ula.t
the document 15 a true and correct copy
of the si:;med original. If it is not possible
to make a eopy at the same time. the
original is prepared, the certificate indicates
that the document is a. true and
correct copy of the COpy on file in the
mission. The word" t Copy) " is not placed
on the document wh1ch is being certified;
the word "<Signed)" Is not placed before
the indication of signatures. Moreover.
a reference to the transmitting aIr(
n"am. such as "Enclosure 1 to Airgram
No. IS (etc. j ," is not placed on the certified
document. The identification of such
a docUment as an enclosure to an airgram
may be typed on a $eparate slip of paper
and attached to the document. but in
such a manner that it may be easl1y
removed v.ithout defacing the document.
724 TRANsMrssIo~ OF INTERNATIONAL
AGREEMENTS OTHER THAN TREATIES TO
THE CONGRESS; COMPLIANCE WITH THE
CASE ACT
All officers will be especially diligent
1n cooperating to assure compliance with
the Case Act, "An Act To require that
1nternational agreements other than
treaties. hereafter entered into by the
United States, be transmitted to the
Congress within sixty days after the
execution thereof." That Act, approved
Au"""t 22. 1972 (86 Stat. 619: 1 U.S.C.
112b). provides as follows:
"The Secretary of State shall transmit
to the Congress the text of any inter·
national agreement other than a. treaty,
to whIch the United States is a party
as soon as practicable after such agreement
has entered into force with respect
to the United States but in no event
later than sixty days thereafter. HOWever.
any such a~eement the Immedi&te
public disclosure of which would. in the
opinion of the President. be prejudicial
to the national security of the United
States shaD not be so transmitted to the
Congress but shall be transmUted to the
Committee on Foreign Relations of the
Senate and the Committee on Foreign
Mairs of the House of Representatives
under an appropriate injunction of
secrecy to be removed only upon due
notice from the President..'
725 PuBLICATION OF TREATIES AND OTHER.
INTERNATIONAl. AGREEMENTS OF THK
UNITED STATES
The attention of all officers is directed
to the requirements of the Act of September
23. 1950 (64 Stat. 919; 1 U.S.C.
112<&)) which provides as follows:
The Secretary ot State shall cause to
be compiled. edited. indexed. and pUb~
lishec:l, beginning as of January I, 1950,
a compilation entitled "UnIted Sta~s
Treaties and Other International Agreee
ments", which shall contain all treaties
to which the UnJted States is a party that
have been proclaimed during each calendar
year, and all international agree~
ments other than treaties to which the
Unittd States is a party that have been
signed, proclaJ.Jned, or with reference to
which any other final fonnality has been
executed. during each calendar year. The
said United States Treaties and Other
International Agreements shall be legal
evidence of the treaties, international
agreements other than treaties, and
proclamations by the President of such
treaties and agreements, therein contained,
in all the courts of the United
States, the several States, and the Territories
Rnd insular possessions of the
Uni~d States.
730 PROCEDURES FOR CONCLUDING
INTERNAnONAL AGREEMItNTS
730.1 Method 01 Concluding Bilateral
and Multilateral Aqreements. An agreement
may be concluded (entered Into) by
the process of bilateral negotiations
which result either In the signing of a
single instrument in duplicate or in exchange
of diplomatic notes, or by the
process of multilateral negotiations. usually
at an international conference to
which the governments concerned send
offi.cial delegations for the nurpose of
formulating and signing an agreement.
730.2 Bilateral Treaties and Agreee
ments. 730.2-1 Negotiation and Background
Assistance. Wh~nevcr the negoUation
ot a new International agreement
is under ('()nsideration. the post or the
Department office havIng primary re~
sponsibility informs the Legal Adviser
and. may. U considered necessary, request
baekground material and advice regard4
lng relevant provisions in existing
treaties ond agreement.!. the general
treaty relations of this Government with
the government at govermnellts Calle
cerned, and other pertinent information.
'730.2-2 Role of Office of the Legal Adviser.
a.. Leaal Review 01 Draft Agreements.
As soon as tentative provisions
for an agreement are considered or
dt·a.fted. the OIDce of the Legal Adviser
is requested to make available the servIces
of an attOmey~adviser to ensure
that the agreement is properly drafted
and agreed policy 15 expressed clearlY
and fully. The Offlce of the Legal Adviser
prepares a draft in tlle first instance
upon the request of another office.
b. Legal Clearance Required. Any
draft of a proposed treaty or agreement.
or any outgoing correSpOndence regarding
the negotiation. signature. and ratie
fication or approval. as well as the existence,
status, and application.ot any in·
ternational agreement to lrhich the
United states is or may become a party.
is cleared. with the Office oC the Legal
Adviser and with other appropriate bu·
reaus or offices.
730.3 Instructions to Negotiators.
When an agreement is to be concluded
at a for<!ign capital, the Department
designates the American negotiator or
negotiators, and. he or they are given
.appropriate instructJo:lS. Ii the agreement
to be negotiated is a treaty which
will be referred to the senate, the secretary
ot State may at some ttmt> prior to
or during the negotiations issue or request
the PreSident to 15sue a "full
power" (see s~ction 732) constituting
formal authorization for the American
negotiators to sign the agreement. Such
a "Cull power" is not customary with
respect to an executive agreement. The
receipt or possession of a "full power"
is never to be considered as a final authorization
to sign. That authorization
is given by the Department by a written
or telegraphic Instruction. and no signB.ture
is affixed in the absence of such
instruction. If the proposal for an agreement
originates with the United states,
the American negotiators as a rule furnish
a tentative draft of the proposed
agreement for submission to the other
gO\'ernment for its cOnsideration. The
negotiators submit to the Department
any modification of the draft or any
counter-proposal made by the other gov4
emment lUld await inStructions from the
Department. It the original proposal
emanates from a foreign government. the
mission forwards the proposal to the De4
partment and awaits its instructions.
730.47 Preparation of Texts for Sigllature.
If an agreement is to be signed
, at a post abroad as B single instrument
<in duplicate), the engrossing is customarily
done in the foreign office on
paper supplied by it, along with a binding
and ribbons to tie the pages in place.
However, the mission may lend assistance
if the foreign office so desires. There
is no universal standard as to the kind·
,or siZe of paper which must be used
(each foreign ofDce has its own "treaty
paper"), and the ~x:ts rno;y be engl"OSSed,
either by typing or by printing. For
every bilateral agreement there must be
two oriAinals, one for each government.
Each oliginal must embody the full text
oC the agrecmcnt in aJl the languages in
which the agreement. is to be signed. subjed
only to the principle of the
..alternat....
In the case of an agreement etTccted
by exchange of. notes, the United States
note is prepared in accordance with 5
FAM 220-224 and the rule5 prescribed
in t.he Correspondence Handbook. The
note oC the foreign government is prepared
in accordance With the style of
the Coreign office and usually in the lan4
(uage of that country. Whenever practicable,
arrangements are made for the
notes to bear t.he same date.
130.5 Principle oj tIU Alternat. 730.51
Arrangtment of Ten!. When English
and a languaae other than English are
both used, the texts in the two languages
are placed <a) in parallel. vertical columns
on the same page, the columns
being approximately oJ' equal width. or
(b) on oppOS1te facing pages of the document
the entire width of the typed or
printf11 space on the page. or (c) in
"tandem'· fash10n. that Is, witb one text
following t.he ot.her. The tandem proce4
dure is the most widel1 used. as it is the
most expeditious.
If ttle flrst-mentioned style Is used,
the English text Is placed in the left
eolumn of each page in the original to
be retalned by the UDlted Stales. and
the foreign text appean In the right eolumn.
In the other orlg\nal, to be retained
bJ' the fomen goyernment, the foreign
ten appean In the left column, and the
BDcUah lezt In the rIght eolumn.
371
If the two ifmgul."[;I'S are placed on titles along with signatures, especially'
opposite facing page; I)f the document, where the President or the SCcretary of
the English text occl'v1es the left-hand State signs. However, U preferred by the
page and the foreign text tbe right-hand other party or parties concerned, titles
page In the United. States original, and may be typed below the place where each
conversely in the foreign government's signer will affix his signature.
or~i~~_ two languages are placed "tan~ 731 CONFORMITY OF TEXTS
demIt fashion.. the EngUsh text is placed After the documents have been enfirst
In the United States ortgt.naJ. and grossed on the basis of agreed texts, and
conversely In the foreign government's before the signing of the agreement. the
original. negotiators or other responsible officers
Ii the parallel column style is used, on each side make sure that the texts in
each representative wtll sign once In the both originals 01 the engrossed llgreecenter
of the page of each of two ortg1... ment are in exact conformity with the
nals. If either the "opposite facing page'l texts in the drafts agreed to, and espe~
or ··tandem" style 13 used, the concluding cially tha' where a foreign language text
part (usually beginning "In FaIth 18 included it is in conformity in aU subWhereof,"
"In Witness: Whereof," sta.nth'e respects with the English text.
"Done." etc.) should appear engrossed in Prior to engrossing it should have been
pa.raJ.led COllUlUlS on the page on which det.ennined that the foreign-language
the signature will appear, so that onlY text is essentially (l.e.. as a matte'r of subone
set of signatures is required fer each stance) in accord with the English text,
separately bound document. It paraJ.Iel and that it has received the clearance of
columns are not. feasible, the concludlng the Department as required in section
paragraphs can be placed "tandem" 722.6.
~~o~p::e page on which the signa- 732 ExcnANCE OR EXHIBITION OF FuLL
U an oriental text is one which, from POWEllS
the occidental viewPOint, reads from back Each representative who is to sign a .
to front. it may be posslble to Join the treaty is furnished a full power signed
two texts in a single document so that the by the Head of State. Head of Governsignatures
appear, roughly speaking, in ment, or Minister for Foreign Affairs.
the center of the document. Separate More than one representative may be
documents for the two languages are not named in a single full power. Formal
desirable if any of the methods first full powers may be <but customarilY are
mentioned is feasible, alUlough extraor- not) issued also for the signing of cerdinary
circumstances may justify excep- tain executive agreements. When issued.
lionS. In tile event of exceptional c1rcwn- the fUll power Lc; fonnal evidence of tlle,
stances a.f(ecting the engrossing, it would authority of the representative to sign
be well for the negotiators to seek on behalf of his government. It names
instructions from the Department. the representative and shows his title
730.fJ-2 Arrangement 0/ Names and and a clear indication of the particular
Signatures; Use of Titles. In the onginal agreement which he is entitled to sign.
to be retained. by the United States, the It the agreement itself requires the exUnited
States and the plenipoten- change of full powers. they are extiary
of the United States are named first changed. If not, they may be either exin
bOth the English and foreign texts, changed or exhibited by the representawherever
the names of the countries or tives on the occasion of signing the agreeo!
the plenipotentiaries occur together ment. 8..<; -may be preferred by the forconjunctively
or disjunctively; and the eign representative. If exchanged. the
signature of the plenipotentiary of the original full power of the foreign repreUnited
States appears above the signa- sentative is forwarded to the Department
ture of the foreign plenipotentiary. Con- with the United States original of the
versely, throughout both of \he language signed agreement. 11 the representatives
texts of the original to be retained by the retain the original of their respective full
foreign government., that· government powers, the foreign representative is reand
its plenipotentiarY are named. first· quested to furnish a xerox, other offset .
and his signat.ure appears above the sig- copy or a certtfled coPY of his full power•.
=~~i:: :r:t~:~entth:~=wsm: 133 SICNATUKE AND SEALING
side by side. Where that procedure is When the engrossing of a treaty or
followed. the signature of the United. other international agreement which is
States plentpotentlary appears on the left to be signed as a single instrument has
and that ot the foreign plenipotentiary been completed, mutuallY convenient ar4
on the right of the arig1na1 to be retained rangements for its signature are made
by the United States: on the original to by the host government. In the case of
be retained b~ the foreign government treaties, the signatures of the representa.the
signature of the foreign plenipoten- tives may be accompanied by their retiary
will appear on the left and the sig- spective seals. ribbons being fastened in
nature of the United. States plentpoten- the seals and binding the document. The
ttary on the right. The posItion of full same procedure may be followed tor
.sentences or paragraphs in the text Is other agreements signed as single instru~
never \nnsilOsed. In thl altomate proce- men\.B. It Is not .....,"&1 tha\ ....Is bf>
dure. aftixed unless the agreement specifically
The general practice and preference of so requires. The representative's personal
tho Department of Stale Is 00\ to use seal. If avall&ble. Is used when seals &Ccompany
the sIgnatures. except that U
the other government ooncerned prefers
official seals, the seal ot the mission may
be used.
(NOTE: A personal seal may oonslst of
a signet ring with lnitial(s) or family
crest, written initIals, etc.)
734 Erchange 01 Ratifications. 734.1
Time and Place lor Exchange. It Is customary
for a treaty to contain a simple
provision to the effect that the instru...
menU; of ratification shall be exchanged
at a designated capital, and that the
treaty shall enter Into force on the date
of such exchange or ~t the exPiration of
a specified number of days or months following.
the date or exchange. As all
treaties signed on the part of the United
States are subject to ratification by and
with the advice and consent of the
Senate, and as the time 'required for
actJon on any partIcular treaty cannot be
foreseen, It is preferable that provision
Is made In the treaty that the Instruments
of ratification are to be exchanged
"as soon as possible" rather than within
a specified period.
734.2 Effecting and Exchange. In exchang1ng
Instruments of rattncation the
representative of the United Stntes
hands to the reP1'eSentative of the foreign
government a duplicate anginal of
the President·s Instrument of ratiftca.tion.
In return, the representative of the
foreign government hands to the representative
of the United States the instrument
of ratification executed by the head
or the chief executive of the foreign government.
A protocOl, sometimes called
proces-verbal or "Protocol of Exchange
of Ratifications" attesting the exchange
Is signed by the two representatives when
the exchange Is made. No full power is
reqwred for thl<; purpose. The protocol
of exchange Is signed in duplicat originals,
one for each government, and the
principle of the alternate Is observed as
in the treaty. Before maldng the exchange
and signing the protocol of
exchange, the diplomatic representative
of the United States satisfies himselr that
the ratification of the foreign govern4
ment Is an unqualified ratification, or
subject only to sUch reservations or understandings
as have been a~'eed to by
the two governments.
734.3 Notification of Date 01 EIchange.
In all cases, but Particularly In those in
which the treaty enters into force on the
day of the exchange. it Lo;; essential that
the mission notify the Department by
telegram when arrangements have been
completed for, the exchange, and also
when the exchange actually takes place.
By the first poucl1 after the exchange
• takes place, U possible, the mission fOTwards
to the Department the instrument
of ratification of the foreign government
and the United. States Government's
origlr.~ of the signed protocol of exchange.
The Department then will take
such steps as may be necessary to have
the proclamation of the treaty executed
by the President.
740 MULTILATERAL TREATIES AND
AGaEEIUNTs
740.1 General. The procedures for the
maJdng of multUater&1 agreements are 1n
372
many respects the "lle as th05C for t.he
making of bUatcraJ greements, e.g .. the
general reQu1remel ~ in regard to full
powers. ratification, proclamation and
publicatton. Th1s su'bchapl£r covers
those procedures which are at va.rtance
with bilateral procedure.s.
740.2 Negotiation. 740.2-1 Function 0/
IntenwtionaJ Conlerenu. The International
conference is the device usually
employed for the negotiation of mUlt1lateral
agreements. The greater the
number of countries inVOlved, the greater
the necessity for such n. cdhference. If
only three or four countries are involved,
It may be convenient to carry on the
preliminary negotiations tluuugll correspondence
and have a joint meeting of
plenipotentiaries to complete the
negotiations and to sign the document.
740.2-2 Invitation. Traditionally, the
international conference W28 convened
by one government extending to other
Interested' gOvelnments an invita.tion
(acceptance usually assured beforehand)
to participate. the host goyernment beaTing
most, If not aJ.1. of \he expense incident
to the physical aspects of the conference.
ThIs is still orten the practice,
but lncrellliing numbers of conferences
have been convened under the auspices,
and. at the caU, of 1nternational
organizations.
740.2-3 Statement of Purpose. When a
call is mad~ or invitations are e~tetlded
for a conference for the formulation of a
multilo.teral agreement. it Is cwtomary
for ~ preclst: statement or purpose tQ accompany
the call or the invitations.
Sometimes, the invitation is also accompanied
by a draft agreement to be used
as a basis for negotiations. If the conference
is called under the auspices or an
international organization. the pl'eci<;e
statement of purpose or the draft agreemcnt
may be prepared In prelinunary
sessions or the organization or by the
secretariat of the organ1zation.
740.2-4 Instructions to Negot1alors.
The U.S. delegation to a conference may
be comprised of one or more representatives.
As a rule, the U.S. delegation is
furnished written Instructions by the
Department prlor to the conference in
the form of a pOsition Daper for t11e U.S.
delega.tion cleared with; the Sf(;retary 01'
an officer specifically authorized by him
and with other appropriate Department
officers, under the protedur~ described
in section 722.3. The Office of the Legal
Adl'iser in all instances reviews drafts
of 1nternattona.l conventions to be considered.
In meetings o! an international
orgaiza.t1on of which the United States
Is a member; when nlX:es5ary, it also provides
legal assistance a.t international
conferences and meetings.
740.2-5 Final Acts of Confercnce. The
"Final Act" of a conference must not
contain International commitments. A
Final Act must be limited to such mat..
ters as a statement or summary of the
proceedings of the conference, the names
of the states that participated. th;e orga.
nization of the conference and the
committees esta.blished, resolutions
adopted, the drafts of International
agreements formulated for consideration
by governments concerned. and the like.
If an international agreement is to be
opened lor signature at the c1o.se of th-:
confeTence, a text thereof may be annexed
to the Final Act but must not be
1ncorporated 1n the body thereof; the
text to be signed must be prepared and
bound separately for that purpose. Where
a Final Act appears to embody international
commitments, the Ullil.cd Stal.-cs
representative reports the same to the
Department and awaits 5PCcific instructions
before takinn any further action.
741 Official and Working Lan.guages
a. General. The working languages of
the COnference and the offic1allanguages
of the conference documents are determined
by the conference. A conference
does not necessarily adopt all of the same
languages for both purposes. It Is customary
and preferable for all the official
languages in which the final document
1s prepared for signature to be designated
as haVing equal authenticity. It. Is
possible, however, for the conference to
determine, because of special circum·
stances, that 1n the event of dispute one
of the languages is to prevail and to include
in the text of the agreement a
provision to that effect. Before a United
State!S delegation concurs In any such
proposal, it must request instructions
from the Department.
b. English-Language Text. Negotiators
",-ill use every practicable effect to assure
that an English-language text is part of
the authentIc teli:t of any multilateral
trenty negotiated for the United States.
Where any Question exists on tllis subject
the negotiators should seek further
inst.ructions.
742 Elto'CROSS!Nti
742.1 Lnnguage or Languages Used in
Texts. The mUltilateral agreement
dral\"I1 up at an international conference
is engrossed for signature in the otncial
language or languages adopted by the
conference. (see section 7fl.) The engrossing
ordinarily will be done by Ule
conference secretariat.
742.2 The Principle 01 the Alternat.
The principle of the altern.at (see section
730_5\ does not apply In the case of a
multilateral agreement, exctpt 1n the
remote cast ;~;hen an agreement between
three or four governments Is prepared
for signature in the language of all the
signatories and each of those government.,;
is to receive a. signed original of
the agreement. CustomarilY. a multil.:
1teraJ agreement is prepared for signature
in a. single onginal, comprising all
the official languages. That original is
placed 10 the custody of a depositar:...
<either a ~overnment or an international
orgaqizat-ion) which furnishes ret'titled
copIes to all governments concerned.
742.2-1 Arrangement 01 Texts. The arrangement
of multilateral agreement
text<; varies, depending largely on the
nUmbf'T of languages used. As in the case
of bilateral agreements. however, the
basic alternatives in the case of multilateral
agreements ate parallel-columns.
facing·pages, or "tandem," as follows:
a. ParaUel Columm. If an agreement
Is to be signed in only two languages, the
pref~lTed methOd. of arrangement of the
texts is In parallel, vertical columns. ntis
mcthod may be used also if only three
langUilg-es are used. but tile three col.
umns are necessarily so nan-ow that the
mcthod has been rarely used. in such
c~s_ When there are four official lan-
I gUages, however, it is possible to use the
parallel-column method by placing two
of the language texts on a left-hand
page nnd the other two language text.s
all the facing right-hand page; thIs
method has been used orten a.nd to good
advantage in various inter-American
agreements - with English, Spanish,
French. and Portugese. If any of the languages
is oriental, the parallel-coluttln
method may be inexpedient and one of
the other methods may be necessary.
b. Facing Pages. If an agreement is to
be signed in only two languages, and circumstances
make it necessary or desirable.
the (acing-page method may be
used for engrossing the texts for signature.
so that one of the language texts
will be on a lcft..hand page and the other
wUl be on the facing right-hand page.
When this method is used. it is desiMlble
tIlat at least the concluding part (usually
beginning "In Faith Whereof," "In Witness
Whereof," "Done." etc.) be engrossed
in parallel columns on the page
at Ute end of the texts 1n both languages
so that only one set of signatures is required.
U parallel columns are not feasible,
the concluding paragraphs can be
placed tandem-Cashion (one language
text after another) on the page at Ute
end oC Lhe texLl; in both languages.
c. Tandem. Ie neither the parallel-column
nor the facing-page arrangement is
feasible tor an agreement to be signed
in two languages, and especia.11y if signed
. In three or more languages. the texts may
be arranged in tandemMstyle, I.e.• one
complete text foIlowing the other. This
allows readily for any number of official
text.s; the tandem-style precedent of Ute
Charter oC the United Nations Is foIlowed
Cor the preparation of agreements formulated
under the auspices of the United
Nations. It Is desirable. whenever practicable.
that the concluding part of ellCh
text be placed with the concluding part
of each of the other texts in parallel columns
on the page on which the first of
the signatures appears. although the to.ndem
arrangement described at the end
of section 742.2-lb can be used.
742.2-2 Arrangement" 0/ Name! and
Sionettires. The arrangement of na.nlte
and signatures, although It may seem a
minor matter. sometimes presents difficulties
in the case of multilateral agreements.
There may be variations of Arrangements,
depending on particular
factors, but tbe arrangement most generally
used is alphabetical according to
the names of the countries concerned. An
alphabetical listIng, however, presenw
the further Question. even when there are
only two languages. of what language is
to be used in determining the arrangement.
It is a common practice to use the
Ianguage of the host government or for
an acreement formulated under the auspices
of an Intel'IULtJonal organtzaUoo,
to follow thAl precedents eslablUhed by
373
that org-anlzation. It possible. in the
event that agreemeJ't. could not be
re:u:hed regarding t.hl arrangement of
names or countries and signatures of
plenlpotentiariel'>. to have a drawing of
lots. a device seldom used. In any event,
the Question is one to be detennined by
the conference.
742.3 Conformity of Texts. It is the
prima.ry responsibility of the delega.tions,
acting in conference, to dete1.·mine the
conformity of the agreement texts which
are to be signed. However, the conference
secretariat has a responsibility for check.
iog the texts ea.refully to ertsUre that,
when put in final form for signature, the
texts are in essential confonnity.
743 FuLL POWERS
In the case of a multilateral agreement
drawn up at an international conIerence,
this Government customarily (almost invariably.
in the case of a treaty) issues to
one or more of its representatives at the
conference fLn instrument of full power
authOrizing signature of the agreement
on behalf of the United States. In some
instances. issuance of the full power is
deferred until it is relatively certain that
the agreement formulated is to be signed
for the United States (see section 732).
Ordinarily. that full power Is presented
by the representatiVeS to the secretary
general of the conference upon anival of
the delegation at the conference site. It
may be submitted in advance of arrival,
but usually tllat 1$ not necessary. When
the conference has formally convened. it
usually appOints a credentials committee.
to Which all full powers and other
evidence of authoriZation are submitted
for examination. The full powers and related
docwnents are retained by the credentials
committee or the secretary general
uotU the close of the conference. At
the close of the conference. the full powers,
related documents. and the signed
original of the agreement are turned
over to the government or the international.
organization designated. in the
agreement as the depos.ltary authority,
to be placed in its archives.
744 SIGNAnrRE AND SULINC (Stl ALSO
SECTION 733)
744.1 Signature. Most multilateral
agreements are signed. Some. h01Peftl',
are adOPted by a conference or organiza_
tion after which governments become
panles by adherence. aceesslon. acceptance
or some other method not requiring
signature (eg.• conventions drawn up
and adoPled at seoslOllll of t.he Interna.
tional Labor Organization). Procedures
for the deJ)()&it of an Instrument of adherence,
accession, or acx:ept.ance 8l'e
simllar to procedures for the deP06lt of
instruments of ra.ti.flcatlon. In some
cases, accession or approval can be accomplished
b7 formal notice through
diplomatic channels.
744.2 Seals. Multilateral treaties do not
usually provide tor the use of seals along
with Ule signatures of representatives.
The large number of signatures would
make the use of seaIa' difficult and
cumbersome.
74.5 DISPOSITION OF Ft!'/,\L DOCCMENTS Or'
CONFERENCE
At the close of a. conference, the re~
mainlng su!}ply of working documents
(e.g.. records ot committee meetings, verbatim
minute-s, etc.) usually is placed in
the custody of the host government or
the organization which called the conference
for appropriate disposition. It is
not proper for definitive commitments
constituting part of the agreement to be
embodied. in such working documents.
Definitive ·commitment.s must be incorporated
only in a final document to be
signed. or adopted as an international
agreement. The final documents of the
conference may include a Final Act (see
section 740.2-5) and. separately the
text(s) of agreement(s). The practice oC
signing a Final Act is still followed in
many cases. In any event, any agreement
formulated at the conference must be engrossed
as a separate document and
signed or adopted. The signed or adopted
originals of the final documents of the
conference are turned over to the government
or international organization
designated in such documents as depositary,
IT the conference is not held under
the au&P\ces or an organ1l.ation, it,is custom:
uy for the hoot government to be
designated depositary, but It might be
appropriate. even In such case, to name
an organization. such as the United Nations,
as depositary. The decision is made
by the conference. \l!,1th the concun-ence
of the government or international organization
concerned.
746 PROCEDURE FOLLQWINC SICNATURE
746.1 Understandings or Reservations.
If it IS necessary to inform other governments
concerned. and perhaps obtain
their consent, "'ith respect to an understanding
or reservation imposed by the
Senate In its advice a.nd cO!VJ:ent. this
Government communicates with the
depositary. which then carries on the
necessary correspondence with the other
govemments concerned.
746.2 Deposit 0/ Ratification. When
the depositary Cot a muJttlateraJ agreement
is a foreign government or an international
organization. the United
States instrument of ratlflcation (or
adherence, accession. acceptance, etc.)
is sent by the Department to the appropriate
Foreign service mis.slon or to the
United St.a.te& representAti.ve to the orga.nization
If there Is a permanent representative.
The m1ssion or the representath"
e depOSits it with the depOSitary
authority in accordance with the terms of
the accompanying instruction from the
Department concerning the time of deposit.
When this Government is depOsitary
for a multilateral agreement, posts
are not authorized to accept tnstrwnents
of ratification of foreign goverments. I.e.•
the foreign government cannot deposit its
instrument wiUt the post. If a post Is reQuested
to transmit an Instrument of
ratlfication to the Depertment. it must
make clear to the foreign government
that the post is acting only as a trans~
mitting agent and that the ra~ificatJol\
374
cannot be con.<;idered as accepted for the case of dOCl' r :cnts tQ ~ ~igned in a.
deposit until received a.nd examined by foreign languagl sufficient time ior the
the Department. Language Services Division to prepare
746.3 Registration (See also section any translations required. check any
750.2-3). It Is generally recognized that existing forei~-lanlnlage draft, and
. the depositary for a multilateral agyee- check the engrossed foreign-language
ment has a primary responsibility for text. The determination of the amount of
such registration. Normally, the dePOsi~ time required In each instance to comtary
has custody not only of the original plete the engrossing is the responsibility
document of agreement but also of in- of the Assistant Legal Adviser (or Treaty
struments of ratification and other for- Affairs.
mal documents. Consequently, the de- 750.2 publication and £egistration.
positary is the most authoritative source 750.2-1 Publication 01 Texts. After the
of information and documentation. necessary action has been taken to bring
750 PROCEDURAL RESPONSIBILITIES ~?o~J~~r~e~:n~r~:~~I~~ed~:~h~nte~~
Ca:rrying out and providing advice and States, it 15 pUblished promptly in the
n.::;sistance respecting the provisions of Treaties and Other International Act
this chapter are the responsibility of the Series issued by the Department. After
Assistant Legal Adviser for Treaty AI- publication in that series. the text of
tab's, who: the treaty or other agreement is printed
a.. Makes all arrangements and super· in the annual volume <which may convises
ceremonies at Washington for the 5ist of two or more bindings) ·of United
siillature of treaties or other intelna- states Treaties and Other International
tiona! agreernents; and prepares or ar- Agreem.ents as required by law (see secranges
for the preparation of texts of tion 725). Treaties and other agreements
treaUes and other agreements to be concluded prior to January 1, 1950, were
signed in Washington; published in the United States Statutes
b. Prepares or arranges for preparation at Large.
of the Secretary of State's repOrts to the 750.2-2 Responsibility for Other Treaty
President, and the President·s messages Publications. The Office of the Assistant
to the Senate for transmtssion of treaties Legal ,Adviser for Treaty Affairs prepares
for advice and consent to ratification: and maintains the annual publleation
c. Prepares instruments of ratification Treaties in Force, an authoritative guide
or adherence. instruments or notifica- to the text and status of treaties and
tions of acceptance or approval. terml- other international agreements currently
nation notices, and proclamations with in force for the United States. It also
respect to treaties or other internatIonal compiles and has published, in addition
agreements; to the publication referred to in section
Ch~~::~~e~e:~;I~n01e~~~c:tst~fer:~: ~~a~i;~~e~Ut°~~~:rs~~:::gr~~~~
ftcatlon. the deposit of Instruments of or authorized by law. The "Treaty InIor·
adherence, the receipt or deposit of In- mation" part of the Department of State
struments or notificaUons of acceptance BUJ.UTIN is compiled by that office.
or approval, and termination notices. 750.2-3 Registration.
with respect to treaties or other inter- Article 102 of the United Nations Char.
national agreements; tel" requires that, every treaty and every
e. Prepares instructions to posts abroad international agreement entered into by
a.ld notes to foreign diplomatic missions a member of the United Nations be reg·
at washington respecting matters in d; !steM, as soon l\S pO$,SibJe, with the Secf.
Takes aU measures required for the retanat and published by it. Article 83
transmission to the Congress of aU in- of the Chicago AViation Convention of
temational agreements other than 1944 requires registration of aviaUan
treaties. as required by the Case Act (see a.greements with the Council of the In.
Section 724), and the pubUcation and ternational C.ivil Aviation Organization.
reetstration of treaties and other inter- '150.3 United State3 as DepOSitary. a.
national agreements to Which the United Inquiries from foreign diplomatic misStates
Is a party (see sections 725 and siom at Washington and from American
750.2-3), diplomatic mIssions abroad with respect;
a~::Sp~~~b;fo~:~a;;~~ ~e::: ~r:~r;~onan~~=~~~~~~:
menta or international organizations, in- ment of wh1ch the United States is de..
structtons and position papers. all Cir· positary are referred to the Assistant
euIar 175 requests and accompanying Legal Adviser for Treaty Affairs. That
Memol'andwns of Law. omcer is to be notified immediately of
750.1 Enrn03sing Documents 1m- Sig- the receipt of any such document anynature.
After the text of a treaty or where in the Department. inasmuch as
other agreement is approved in writing . a dep06itary is required to ascertain
in accordance with. section 722.7, the whether those documents are properly
document Is engro,ssed tor signature in executed. before accepting them for dethe
Department. posit. to keep accurate records regarding
Adequate time (normally 7 business them. and to inform other governments
days) is allowed tor the engrossIng Uyp- concerned of the order and date of reing
on treaty paper), comparing. etc.. of celpt of such documents.
the treaty or other agreement to be b. Before any arrangements are proSigned.
in order to assure sufficient time pOsed or agreed to for the United States
for the preparation of accurate texts In to serle as depOSitary for any tntema.duplicate
for signature,. including, in tional agreement the. views at the Assista.
nt Legal Adviser for Treaty AlIairs ",,·m .
be obtained.
750.4 Records and Correspondence
CustodY. a. The Assistant Legal Adviser
for Treaty AlTairs compiles and main·
tains authoritative records regarding the
negotiation, si~1.ature. transmission to
the Senate, and ratification or approval,
a.c; well as the exi:-;tence. status. and application.
of all international agreements
to which the United States is or may be·
come a party and. so far as inlormation
is available, of agreements between other
countries to v.,ruch the United States 18
not a party. Inquiries on these subjects
are addressed to. and outgoing communica
tions cleared with, the Office of the
Legal Adviser.
b. To ensure that the records regarding
the matters described in this section are
complete and up to date, It is important
that all relevant papers be referred to
the Office of the Legal Adviser.
c. The Assistant. Legal Adviser for
Treaty Affairs Is responsible for the
custody of originals of bilateral agreements
and certified caples of multilateral
agreements pending entry into force and
completion of manuscripts for publ1cation.
Followin!: publlcation. such originals
and certified copies are transferred
to the National Archives. The Assistant
Legal Adviser for Treaty Affairs retains
custody of signed originals of multilateral
ag~reements for which the United
States Js depositary, together wit.h relevant
instruments of ratification. adherence,
acceptance. or approval, as long as
those agreements remain active.
[SEAL] OHARU:s N. BROWER.
Acting Legal Adviser
Department of Statt.
July 23. 1973.
{FR Doc.73-16989 Flied B-H-73;8;4S am)
4/4/74
Foreign Affairs
1/9/73
Judiciary
3/22/73
Foreign Affairs
375
APPENDIX C
LEGISLATION PENDING IN THE 93D CONGRESS RELATING TO
THE MAKING OF INTERNATIONAL AGREEMENTS
H. Con. Res. 426
Mr. Aspm
DIGEST:
Expresses the sense of Congress concerning the President not signing
any agreement with a foreign country or international organization during
the period from his impeachment by the House of Representatives until
the Senate votes on such impeachment.
ACTIONS:
4/4/74 Referred to House Committee on Foreign Affairs
H. J. Res. 147
Mr. Ranck
DIGEST:
Constitutional Amendment - Provides that the President shall have the
power. by andwith the advice and consent of the Senate and House of Representatives.
to make treaties. Requires for approval that for each treaty
two-thirds of the Senate and the House of Representatives must concur.
ACTIONS:
1/9/73 Referred to House Committee on Judiciary
H. J. Res. 455
Mr. Bmgham
DIGEST:
Requires any executive agreement made on or after the date of enactment
of this joint resolution to be transmitted to the Secretary of State. who shall
then transmit that agreement (bearing an identification number) to the Congress.
Provides that any such agreement the immediate cTIsclosure of
which would. in the opinion of the PreSident. be prejudicial to the security
of the United States shall instead be transmitted by the Secretary to the Committee
on Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives under an appropriate written
injunction of secrecy to be removedonly upon due notice from the President.
Requires eachcommitteeto personally notify the Members of its House that
the Secretary has transmitted such an agreement with an injunction of
secrecy. and such agreement shall thereafter be available for inspection
only by such Members.
Provides that any such executive agreement shall come into force with
respect to the United States at the end of the first period of sixty calendar
days of continuous session of Congress afterthe date on which the executive
agreement is transmitted to Congress or such committees. as the case may
be. unless. between the date of transmittal and the end of the sixty-day
period. both Houses pass a concurrent resolution stating in substance that
both Houses do not approve the executive agreement.
ACTIONS:
3/22/73 Referred to House Com~nittee on Foreign Affairs
5/30/73
Judiciary
4/10/74
Judiciary
5/20/74
Judiciary
376
H. J. Res. 584
Mr. Ashbrook
DIGEST:
Constitutional Amendment - States that any provision of a foreign treaty
which denies or abridges any right enumerated in this Constitution shall not
be of any force or effect. Provides that no treaty shall authorize or permit
any foreign power or any international organization to supervise. control,
or adjudicate rights of citizens of the United States within the United States
enumerated in this Constitution or any other matter essentially within the
domestic jurisdiction of the United States. States that all executive or other
agreements between the President or any international organization shall
be made only in the manner prescribed by law, and shall be SUbject to the
limitations imposed on treaties.
ACTIONS:
5/30/73 Referred to House Committee on the Judiciary
H. J. Res. 977
Mr. Kemp
DIGEST:
ConstitutionalAmendment - States that any provision of a foreign treaty
which denies or abridges any right enumerated in this Constitution shall not
be of any force or effect. Provides that no treaty shall authorize or permit
any foreign power or any international organization to supervise, control,
or adjudicate rights of citizens of the United States within the United States
enumerated in this Constitution or any other matter essentially within the
domestic jurisdiction of the United States. States that all executive or other
agreements between the President or any international organization shall be
made only in the manner prescribed by law, and shall be subject to the
limitations imposed on treaties.
ACTIONS:
4/10/74 Referred to House Committee on the Judiciary
H. J. Res. 1021
Mr. Pepper
DIGEST:
Constitutional Amendment - Provides that the President shall have power,
by andwith the advice and consent of the Senate and the House of Representatives,
to make treaties: provided a majority of the Members of each
House present concur in giving such advice and consent, and provided that
each House by a majority of its Members present shall determine the rules
by which it shall be governed in giving its advice and consent to the making
of treaties and executive agreements requiring the concurrence of the
Congress.
ACTIONS:
5/20/74 Referred to House Committee on the Judiciary
1/18/73
Foreign Relations
1/18/73
Foreign Relations
4/5/73
Judiciary
377
S. 445
~ase
DIGEST:
Prohibits funds to be obligated for the implementation of the Azores base
agreement with Portugal until that agreement is submitted to the Senate as
a treaty for its advice and consent.
ACTIONS:
1/18/73 Referred to Senate Committee on Foreign Relations
S. 446
~ase
DIGEST:
Prohibits any funds from being obligated or expended to carry out any
agreement entered into between the United States Government and the government
of any foreign country providing for the extablishment of a military
installation in that country at which units of the Armed Forces of the United
states are to be assigned to duty, or revising or extending the provisions
of any such agreement, unless such agreement is submitted to the Senate
and receives its advice and consent.
ACTIONS:
1/18/73 Referred to Senate Committee on Foreign Relations
S. 1472
Mr. Ervin
DIGEST:
Provides that any executive agreement made on or after the date of
enactment of this Act shall be transmitted to the Secretary of state who
shall then transmit such agreement to the Congress. States that if, in the
opinion of the President, the immediate disclosure of such an agreement
would be prejudicial to the security of the United states the agreement shall
be transmitted to the Committee on Foreign Relations of the Senate and the
Committee on Foreign Mfairs of the House under an appropriate written
injunction of secrecy to be removed only upon due notice from the President.
Provides that any such agreement shall come into force with respect to
the United states at the end of the first period of 60 calendar days after
the date on which the executive agreement is transmitted to the Congress
or such committees, as the case may be. unless both Houses pass a concurrent
resolution stating in substance that both Houses do not approve
the executive agreement.
Sets forth the procedure to be followed by the Congress in the case of
concurrent resolutions described above.
ACTIONS:
4/5/73
4/10,11,12/73
6/13/73
378
Referred to Senate Committee on Judiciary, then to the Committee
on Foreign Relations, if and when reported.
Public hearings by Judiciary. Printed.
Reported by Separation of Powers Subcommittee to the
full committee. (See S. 3830.)
5/8/73
Judiciary
4/12/73
Foreign Relations
S. 3830
Mr. Ervin 7/30/74
DIGEST: Foreign Relations
Requires that any international executive agreement made by the executive
branch shall be transmitted to the Congress, which may act within 60
days to disapprove it.
Sets forth procedures for such consideration by the Congress.
ACTIONS:
7/30/74 Referred to Senate Committee on Foreign Relations
8/19/74 Rereferred to Senate Committee on the Judiciary
S. J. Res. 106
Mr. Hathaway
DIGEST:
Constitutional Amendment - Requires the advice and consent of both
Houses of Congress before any treaty or agreement providing for the commitment
of United States armed forces to a foreign nation may be made.
ACTIONS:
5/8/73 Referred to Senate Committee on Judiciary
S. Res. 99
Mr. Hartke
DIGEST:
Makes it the sense of the Senate that the President is required to consider
the Senate as a Council of Advice with respect to the negotiation of treaties
and other agreements with any foreign government.
Makes it the sense of the Senate that any persons appointed to represent
the United States or the President in negotiations with foreign governments
are "public ministers" of the.United States withinthelanguage of theConstitution,
and, therefore. no person may be constitutionally appointed to conduct
such negotiations unless such person is first nominated to an office to
conduct such negotiations. and the Senate advises and consents to his nomination.
Declares that the President should submit to the Senate. for its advice
and consent all agreements oinational importance previously concluded with
foreign governments that have not been submitted to the Senate for its advice
and consent and should submit a report on all negotiations presently being
conducted with respect to possible agreements.
Enumerates those appointments and negotiations which are excluded from
the provisions of this resolution.
ACTIONS:
4/12/73 Referred to Senate Committee on Foreign Relations
o

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