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HEADQUARTERS, ARMY SERVICE FORCES 
OFFICE or THE JUDGE ADVOCATE GENERAL We?
WASHINGTON 25. D. C.

 

 

 

 

 

 

 
 

smow 1945/8466  
MEMOMDUM Foe THE or was . loi?mgust 1945

SUBJECT: Legality of Signal I?ntelli?e?a??jriactivities .33. .

l. ?The Assistant Chief of Staff, by informal memorandum,
requests an opinion on the legality of certain signal intelligence
activities of the War and Navy Departments. In View of the importance
of the activities, it is proposed that an opinion of the.?ttorney
General also be obtained.

.. 

2. The.Questions presented are:"'
a. Whether the hang and Navy may lawfully intercept i

Eadie and wire communications of agents or representatives
of foreign governments (including, but not limited to, military} naval,
diplomatic, clandestine and police messages) transmitted

between one foreign country and another or
between points Within a foreign country,- or

(13) between this country or one of its possessions
. and a foreign country; or 
i .

. ?pr' 1 5  . 'i 
Fin i?I' I Mu 

?2  . i
Cc) between pointS'dithin this 

(2) Radio. and wire communications of agents or representatives
of foreign commercial enterprises, transmitted. between points specified in 
clauses and above.

b. Whether communications companies may lawfully make available i
to the Amy and Navy coded or plain text copies or transcripts of the above
communications, together with any notes or work-sheets relating thereto.

.n c; ?Whether the Army and Ravy'may make such use, or disclosure
together Executive Departments, of communications of the above character
astheyz'deem: necessary in the protection of national security.

12'

 

 

 


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By Date 

I AT THE NATIONAL ARCHIVES
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"Purpose of activities.

3 3. In time of war enemy communications, as well as neutral communica-
tions relating to_enemy activities, are intercepted for the purpose of gain~
ing knowledge on the strength and disposition of the enemy forces, his future
intentions and capabilities, and other matters, In time of peace, information
from.such sources is eqhally'required for the national defense and the effec?
tive control of international relations, to avert the danger of surprise
attack by an unfriendly nation, and to contribute to the satisfactorywadjust?
meat of the complicated differences between nations that lead to war. To
effectuate the ultimate commnnications, their
contents must be used'within the'War and'Navy-Departments and when the
national security so demands, disclosed to other Departments, principally
the State Department.- The catastrophic consequences inherent in the use of
the atomic bomb dramatically emphasize the necessity'for our knowing as much
as possible of the plans of a possible enemyo As a nation, the United States
has all the attributes of sovereignty in the conduct of its affairs with other
nations and is vested with all powers necessary and proper for the protection
of its national interests and the effective control of its international
relations. MacKenzie v. Hare, 239 3115 Burnet v. Brooks, 238 U.S.
3785 U.S. v. Curtiss4Wright Export Corp. 299 U.S. 3044 In the absence of
Specific restraint, either under domestic or international law, on the exercise
of its normal sovereign deerS, the United States clearly has the power to
investigate foreign communications to the extent deemed necessary for the
safety of the nation. Because of their secretrnature there is little official
record of the intelligence activities conducted by other countries. Neverthe?
less, statements.of members of Congress and administrative officials of the
Government indicate that other major powers have carried on in the past
extensive-intelligence activities of the nature here discussed. (See, Cong.
Rec. Vol. 77, 73rd Bong., Sess. (1933), pp 31275 Hearings before the
Senate Committee on Interstate Commerce, 78th Bong., Sees. (1943), on
814, p. 80; Hearings before the House Committee on Interstate and Foreign?
demerce, 67th Cong., let 535, 55, 
187.) There is no reason to believeLthat these activities have been
curtailed or will be curtailed in the future. The fact that many foreign
countries own or eXercise a high degree of control over communication
facilities indicates the'ready'accessibility?to those countrie51of all messages
transmitted therein. .(Hearings before the Senate Committee on Interstate
I commerce, 73rd cong., 2nd eess. (1934), on s. zero, pp. 165, 168, 169, 1715
i Hearings before the House Committee on the Merchant Marine and Fisheries,

1 68th Cong., on H.R. 7357, p. 169; Hearings before the House
i


 

Interstate and Fbreign ?ommerce, 67th Song., Sess. (1921), on S. 535,

7 pp. 126?136; Hearings before the House Committee on Interstate and Ebreign

Commerce, 65th Cong., 2nd (1918), on H. J. Res. 309, p. 34). For these
reasons the Assistant Shief of Staff, regards the activities as of the

i highest national importance.

 

 

 

 

 

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_7.1 The activities are not prohibited by Section 605 of the Communications
Act of 1934.



 

Section 605 off-he Federal Cbmmunications Act?of 1934 (48 Stat.
1303; 47 605) proVides as follows: 

A. rum-:7




"No person receiving or assisting in receiving, or transmitting,
or assisting in transmitting, any inte state or foreign communication
by wire or radio shall divulge or publish the existence, contents,
substance, purport, effeht3_pg?n?aning authorized.
rchannels of transmission or reception, to any pe?son other than the 
addressee, his agent, or attorney, or to a person employed or authorized
to forward such communication to its destination,.or to proper account?
ing or distributing officers of the various communicating centers over
which the communication may be passed, or to the master of a ship under
Whom he is serving, or in response to a subpena issued by a court of
competent jurisdiction, or on demand of other lawful authority; and no
person not being authorized by'the sender shall intercept any communica- 1
- tion and divulge or publish the existence, contents, substance, purport, 3
z: effect, or meaning of such intercepted communication to any person; and
no person not being entitled thereto shall receive or assist in receiring
any'interstate or foreign.communicauion by wire or radio and use the 
same or any information therein contained for his own benefit or for the
benefit of another not entitled thereto; and no person.having received
such intercepted communication or having become acquainted with the
contents, substance, purport, effect, or meaning of the same or any
part thereof, knowing that such.informaticn?was so obtained, shall
divulge or publish the existence, contents, substance, purport, effect,
or.meaning of the same or any part thereof, or use the same or any
information therein contained for his own benefit or for the benefit a
or another not entitled thereto: Provided, That this section shall not' 
apply to the qr utilizing the contents 

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1. 01 any-radio communicatign broadcast, or transmitted by amateurs or Others
for the use of the general public, or relating to ships in distress."

not thereby intend to prohibit the activities in.question. Bongress was
concerned primarily with regulation of new domestic problems which arose from

the development and expansion of'wire and radio communications. Section 605

1? was enacted with little discussion at the hearings or in the debates on the

a floor. It is based on similar provisions which had been contained in

;5 Section 27 of the Radio ?ct of 1927 (applicable only to radio communications)

?5 but extended also to apply to Wire communications. (Senate Report No. 781; I
. 'House Report No. 18503 73rd Conga,?2nd Sess., 1934). In turn, Section 27 
3 of the Radio Act had been passed practically'without discussion, 
evidently because a provision for the secrecy of radio communications

had been incorporated in the Federal law since as early as 1912.

(37 Stat. 307; 47 U. s. s. 54 (1912)). At hearings prior to

5. The legislative history of Section 605 indicates that Songress did

 

 

 

 

 

 

 

 

 

 

 

 

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passage of the 1927 Radio Act, Stephen B. Davis, Jr., Solicitor of the
Department of Commerce, stated that a draft of Section 27 was a "declaration
of existing law, although it is amplified considerably in language. . 
(Hearings before the Committee on Interstate Commerce, U. 5. Senate, 69th .
Cong., 1st Sess. (1926), on 8.1 and 5.1754, P. 122). 'f

. 

whether an employee of?a communications company or an outsider, from prying
into the communications of another person and wrongfully turning the informa?
tion thus acquired to his own uSeg7ff?egfings?Before the??ommittee on the
Judiciary,-House of Hepresentatives, 77th Cong. 1st H.R. 2266
and H.R. 3099, pp. 238?239; Hearings Before the Committee on Interstate Commerce,
U.S. Senate, 73rd Cbng., 2nd Sess. (19343, on S. 2910, p. 723 Annual Report of
Attorney?General to Congress, January 3, 1941; Cong. Rec. (1912), Vol. 48,

pp. 10592, 10600.) The majority?of states have also long provided by'statute
that such conduct constitutes a criminal offense. (Olmstead v. U.S., 277 U.S. 

438 (1928), at pp. 479-481.) . -

6- The main purpose of Section 605 is to prevent one private individual,' 
I

I

7r Although the scope and application of Section 605 have been judicially
considered in numerous cases, almost all the cases involved the question of the
admissibility in a criminal or administrative proceeding of evidence alleged
to have been obtained in violation of the statute. None of the cases deals
with the scope of Section 605 in relation to any-of the contemplated intelli-
gence activities; nor does any deal with the power of the President as executive
and as Commander in Chief of the army and Navy-to obtain information relating,
to the security-of the nation. 

8. As has been stated, in Olmstead v. United States, (gpp pip, supra),
the Supreme Court held, prior to the enactment of Section 605, that Wire
tapping did not violate the Fourth Amendment and that evidence Obtained thereby
was properly admitted in a criminal trial. The Supreme Court first considered
Section 605 in Nardone v. 379 and held that
Section 605 was intended by Congress to change the common 1aW"rule enunciated
in the Olmstead-case and that, consequently, evidence obtained by'wire tapping
by government agents was improperly admitted. 'In the Nardone case the govern? 
ment argued that after the case, departments of the Federal government, 
with the knowledge of Congress, had permitted'wire tapping; that in spite of i
such knowledge, Congress refrained from legislation outlawing it, although?bills, 
so providing, had been introduced; and that the Olmstead case was governing i
in.view of the fact that Section 605 was practically identical mith provisions
of the Radio Act of 1927 (Act of Feb. 23, 1927, 44 Stat. 1162), which had been
in existence when the Olmstead case was decided. In rejecting this contention
the Court stated:

 

"Taken at face value the phrase ?no person? Comprehends federal
agents, and the ban on communication to "any person" bars testimony
to the content of an intercepted message. Such an application of the 
section is supported by comparison of the clause concerning intercepted i

 

 

 

 

 

 

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messages with that relating to those known to employee of
the carrier. The former may not be divulged to any person,
:"'the latter may be divulged a lawful s?bpoena"We nevertheless face the fact that the plain words
of Section 605 forbid anyone, unless authorized by the sender,
to intercept a telephone message; and direct in equally clear
language that ?no Qerson" shall divulge or publish the message
or its substance to "any person." Tb recite the contents of
the message in testimony before a court is to divulge the
message. The conclusiOn that the act forbids such testimony seems
to us-unshaken by the government's arguments." 382)

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In Weiss v. United States, 308 U.  321 (1939), it was heldthat the
interdiction of the statute extended to intrastate as well as interstate
'messages. (To the same effect is Diamond v. U. 3., 108 F. (2d) 859,
GOA, 6th, 1938). In Nardqne v. Epited States, 308 U. S. 338, it was 
held that if unlawfully intercepted messages had been used to obtain i
evidence against the senders, the evidence so obtained should have'been 
excluded. In Goldstein v. magi-942), it was
held that Section 605 does not render?inadmissible in a Eriminal trial
in a federal court thetestimony of witnesSes who were induced to testify
by the use, in advance of the trial, of communications intercepted in
violation.of the statute, but to which communications the defendants were
not parties. In Goldman v. United S?ta?bgg, 316 U. s. 129 (1942), it was
held that divulgence of a person's telephone conversation, overheard as
it was spoken into the telephone receiver, does notwviolate~3ection 605, 
since in such case there is neither a ?communication? nor an ?interception? 
'within the meaning of the statute. 



 

 

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9.These are the onLy Supreme Court cases which have considered the
application of Section 605 and they are typical of the lower court cases
interpreting the statute; (See,?8sblowshy v. U.S., lOl 183 
3rd, 1938); v. Plisco, 22 F. Supp. 1938)). although i
there is language in the cases indicating that the statute'will be strictly i
censtrued against permitting federal agents from intercepting and divulging
cemnunications, this is based on what is conceived to be the Congressional i
policy, asvexpressed in Section 605, of barring wire tapping even though

it may be an aid in the detection of crime (Nardone v. U. S. 302 U.S. 
This Congressional policy rests on the moral principle that the practice of i
Wire-tapping by officers to obtain evidence IEinvolves a grave'wrong? (id. at 
p. 384). Ethical are not?present in the proposal

to obtain information as to communicati nelsolely of f8 sign governments,

their agents or representatives, and foreign commercial-enterprises. The
information thus learned will be of assistance in conducting the foreign

relations of the United States, in preserving our neutrality, and is in the
interest of national security; it is not for the purpose of criminal

prosecution or investigation into the affairs of the ordinary resident.

 

 

 

 

 

 

 

 

 

AT THE NATIQNAL ARCHIVES -
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I ?7-53: '15.There has been strong Congressional opinion that Section 605 does'
not prohibit any of the activities in question. The charge had been made

that ?ongress was in part responsible for.the disaster at PearlLHarbor

becauee of its failure to enact certain legislation authorizing wire tapping
and other intelligence activities (77th Cong., 2nd Sess.3 Cong. Rec., Vol.

pt. 1, p. 947 Preaidentg?gpman, then Sena or, in a comprehensive
analysis of existing and?proposed?legis?ation, concludedtthat Section 605 1
does not prohibit the intelligence activities in question. He stated as ??lomm- 
949): . 

- 

"Anyone acquainted with the record must conclude that in
fact the intelligence and investigative services of the Federal
Government resorted to wire tapping in Hawaii, a long time before
the attack on Pearl Harbor. If there.was any failure to catch
the Japanese spies and to ascertain the plan for a surprise
attack, the failure was not due to any restraints imposed on
our detectives. 0n the contrary, a study of the record will
show that wire tapping and interception of messages were fully
practiced prior to the attack on Pearl Harbor??just as fully as
if there had been a law which said in express words to the
investigative agencies of the Government, ?Go out and wire tap
.as much as you can.?

a a r'

refer now, Mr. President, to one further circumstance
which, according to the preSS'was mentioned in hearings before
a committee of the House last year when it considered a bill to
authorize'rire tappinc. At that time a high official of the

7 Government stated to the Housegcommittee that under the present
law it is entirely copies
of telegrams in the files a? cable and telegraph companies.
Regardless of whether one agrees with the opinion of the
Attorney General that it is lawful to tap wires, it is clear that
under the law as it nOW'stands the Federal Government could have
subpenaed copies of all telegrams sent by Japanese spies over the
commercial lines between Hawaii and Japan in the weeks and months
preceding the attack on Pearl Harbor.

"It is, therefore, fair to say that the Federal Government 
agents'were not prevented, by anything in the present law, or by
the lack of any law such as has nOW'been proposed in the House
and was proposed in the House last year, from intercepting the
messages of spies and tapping the wires of spies in Hawaii or 
anyWhere else.?

?wwgulg'4?- a . I



as

- 11. 'With respect to the legality of interception of messages, it
should be noted that the second clause of Section 605 prohibits the
interception and divulgence of communications. Both Attorney Generals
Biddle and Jackson have held_that wire tapping alone is no offense
because there is no divulgence within the meaning of the statute (ibid.;
Hearings on  Res. 2-33, 77th Cong., 2nd Sess.).

 

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12. The disclosure of information obtained from the intelligence
activities in question to' another am of the Executive, for the same
purposes as it was originally obtained, is a necessary and logical
incident of the authority to engage in such activities . Knowledge of
the President which he acquiresihthrong?sfone, department; the Government) ..
is knowledge which necessarily he  through anoth?r department.

In the performance of his duties and functions the President acts
through the various departments? of the Government. Russell Motor Car
go"- United States, 261 5143 523; Ben?s}; 19'. Berry, 263 17.5. 29,?
33; Wilcox 11. Jackson, 38 4.97, 5123 Jones v. United States 13'?

 

3.5. 202, 217?.

13- Finally, it should be noted that the Supreme Court in holding
in .Nardone v. United States, 302 U.S. 379, that Section 605 applied to
Federal agents to the extent of prohibiting the. introduction of evidence
obtained by them through wire tapping, stated that there were two. classes
of cases in which the general words of a statute do. not include the
Government or affect its rights unless the construction is clear and
indisputable, as follows (pp. 383?384) -

?The first is where an Act, if not so limited, would deprive

the sovereign of a recognized or established prerogative title

or interest. . . . . The second class - that where public officers
are impliedly excluded from language embracing all persons, 

is where a reading?grhich would include such officers would work
obvious absurdityr as, for example, the application of a speed

law to a policeman pursuing arrow.? inal' or the driver of a fire

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engine responding to an . .,

  
  

 
 

"1?43" Considerations of national policy require the application of
both exceptions to this case. Section 1 of the Communications Act states
that the national defense is one of the principal purpos es of the Act.

It would be anomalous indeed to hold that the Communications Act precludes
the performance of functions which may be vital to the life of the ?ation.

 



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interception of communications oi foreign governments is recognized

by statute as a lawful activity of the Executive.



15- In 1933 Congress passed the statute for the protection of diplomatic 
codes (Act of 10 June 1933; 48 Stat. 122). That Act recognizes the right i
of the executive branch to foreign i
governments, and is designed to insurd?t?e?secrecy which?is essential to I
such activity. 'It reads as follows: 

?Protection of diplomatic by virtue of his 
employment by the United States, shall obtain from another or shall

have custody of or access to, or shall have had custody of or access

to, any official diplomatic code or any matter prepared in any such

Code, and shall willfully, without authorization or competent authority,
publish or furnish to another any such code or matter, or any matter

which was obtained while in the process of transmission between any

foreign government and its diplomatic mission in the United States,

shall be fined more than $10,000 or imprisoned not more than ten

years, or both.? 

16.The principal purpose of that act, as is shown.by its legislative

history, is to prevent trusted employees of the Government from.divulging
information about foreign codes known to our Government or the contents

of messages of foreign countries which have been successfully decoded.
(73rd Gong., 1st Sess.3 Cong. Rec., Vol. 77, pp. 3125-3126, 3131, 3133).
The statute also makes it a criminal offense for such employees to disclose
information about the government's own codes or about the contents of a
uncoded communications transmitted beggeep awforeign government and its i
diplomatic mission in this sent dishdiplomatic pouch. -
(See Cong. Rec., V01. 57, p. 3126). 

17.The debate in the House and the Senate preceding the passage of
the Act discloses the following information. (73rd Cong., 1st Sess.5
Cong. Rec., Vol. 77, pp. 1006, 1151, 1411, 1461, 2968, 2978, 3125, 3139,
3603, 3889, 4965, 5142, 5218, 5333, 5515, 5521, 5653, 6198). A government
employee named Herbert O. Yardley had been a key figure for the State
Department in the interception and decoding of messages of foreign
governments during the first??orld?war and thereafter (Cong. Rec., Vol. 77,
pp. 3126-3129). In 1931, hr. Yardley published a book called 1?The American
Black Chamber?, which described in some detail activities of the bureau and
its predecessor during the last'war. He was planning to publish another book
on the subject when the 1933 Bill was introduced. -



18.Mr. Pittman, sponsor of the bill in the Senate, stated in introducing
it: - .

 

 

 

 

 

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"In the first place, it will be Observed that the measure
is limited to the individual- It will also be observed that he 4
must acquire possession of the diplomatic papers by virtue of his 
office.> In other words, the individual will be guilty of a breach
of confidence, and, to some extent, guilty of an act almost verging 
on treason, in violating the extra?ordinary confidence placed in -
him by virtue of his office, where he might obtain possession of

code messages, whether thoseycodelmessages were of his own Government
or of some other it is'??conscionable
ifor trusted employees to correspondence between
foreign governments which they obfain by virtue of their office.

That is all_that is covered in the measure, in my opinion.

??Lmumm

 

"fhere has been some objection to the words 'or which purports
to have been prepared in any such_code' . . . The reason for that
is this: If a message purports to be a code message between some
foreign government and our Government, or between two foreign
governments, and it is obtained by one through virtue of his office,
or through his ability to crack a code which he has been taught by
our Government, it might be found almost impossible to prove that
it was a code of the foreign government without placing the
representatives of that foreign government on the witness standposition of trust and confidence, and the message
purports to be a code message, whether it is-a code message or not
accode message, he still would be violating his trust if he deliberately
and willfully published it or deliberately and willfully gave it to
another to be published without competent authority, as provided in
the bill. (Emphasis supplied; Cong. Rec., Vol. 77, pp. 3125?3126).

19. is shown by the foregoing, the power of the executive branch is

not confined to the interceptio?fpf?ehe??pmilitary andunanal communications
in time of war or to the interception of communicationsi?f nations known
to be of unfriendly disposition during a period of unrest abroad. The
1933 act was passed in peacetime, during-an era of relative calm. Thus,
in passing the 1933 Act, Congress recognized that the interception

of communications of foreign governments is within the scope of the
functions of the executive branch of the Government, and provided
legislative support of the intercept activities in question by making it
a criminal offense for employees of the government to divulge information
gained in the course of such work.

20.In enacting Section 60$ of the Communications Act of 1934, Congress
did not intend to prohibit intelligence activities of the type which it
had previously sought to protect. is has been noted, Section 605 was
passed with littie discussion at the hearings or in the debates on the
floor. A construction of Section 605 which would prohibit the Executive
Departments from intercepting the communications of foreign governments
would render the most important part of the 1933 Act pointless and'withoum

 

 

 

 

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effect. Even if there were not other cogent reasons, the subsequent_
general provisions of Section 605 could not be held to override Congress'
expressed intention a year earlier to afford special protection to
governmental activity of the specific type in questionconstrued as impliedly repealing a prior law unless no other
reasonable construction can be applied. U. S. v. Jackson, 302 U.S.
(1938), at p. 631. then there are two acts on the same subject, the
rule is to give effect to v. National City
Bank 296 U. s. 497 (.1936), at 19.1%503 Borden (Idea-308 11.5. 188
(1939), at pp. 198 et. seq,3 U. s. v. Burrou'hs, 289 U. s. 149 (1933},
at p. 1643 ma v. Wenie, 157 11.5. 46 (1895), at pp. 58-59. The legis-
lative intention to repeal a statute must be clear and_manifest, and it
is not sufficient to establish that a subseq1ent law covers some or all
of the cases provided for by the prior act. There must be a ppsitive
repugnance between the provisions of theanew law and those of the old,
and even then the old law is repealed by implication only'to the extent
of the repugnanqv. U. S. v. Borden, supra, at pp. 198?199.

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If Section 605 is construed so as to prohibit the activitie?,the statute
would be of doubtful constitutionality; henceJ such construction
should be avoided.

21. It is submitted that the President, in the exercise of his powers

as executive and Commander in Chief, would have the power to engage in the

activities in question independent of statute.. Any?statute which attempted

to deprive the President of this power would be-of doubtful constitutionality.

Under the familiar doctrine that where there is doubt of the constitutionality
of a statute, it will be interpreted, if possible, in such a manner as to,

render it constitutional, Section 605 should be construed as not affecting

it exercise by the President ofrthishpower. As was stated by the Supreme

Court in National Labor a. Lanfg'hlin Steel Corp. 

301 U. s. 1, 30. (.1937): - .



"The cardinal principle of statutory construction is to save
and not to destroy. ?We have repeatedly held that as between two
possible interpretations of a statute, by one of which it would be
unconstitutional and by the other valid, our plain duty is to adopt
that which will save the Act. Even to avoid a serious doubt the rule
is the samer"

Eurthermore, even if it be assumed that it would be constitutional for
Congress to deprive the President of this power, the statute will be construed
strictly in order not to interfere with such power of the President. For
where both Congress and the President share a power or their powers overlap,
and Congress has acted, the Supreme Court will construe the statute if
possible, so as not to interfere with the powers of the President. (See
Myers v. United States, 272 U.S. 52, 163, 164, 172 (1926}; oarte Garland,
A'Walli 333 (1866); See also, Kilbourne v. Thompson, 103 U.S. 168, 190, 191

 

22. Let us examine the Presidential power over foreign affairs in general;
then with specific reference to his power over communications. The Constitution
declares that "The executive.pdmer?shs?ighe vested" inuthe President (Section I,
Article 11). It is required that "he shall'take care that the laws are faithp
fulhy'executed" (Section 3, Article II). The President is Commander in Chief
of the Army and Navy; he has power, by and'with the advice of the Senate to
make treaties, provided two?thirds of the Senators present concur (Section 2,
-Article II). He shall from time to time give to the Gongress information of
the state of the Union; he shall receive ambassadors and other public ministers
(Section 3, Article 11). These are the principal powers and duties expressly
set forth in the ?onstitution which affect the conduct of foreign relations
by the President. The President's duty to "take care that the laws be faith?
fully executed" extends not only to the enforcement of acts of Congress or of
treaties according to their express terms, but to the rights, duties, and
obligations growing out of the Constitution itself, our,international relations,
and all the protection implied by the nature of the government under the

Constitution (In re Neagle, 135 U. S. 1, 643 See also Eyers v. United States

 

 

 

 

 



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.Eelations-(1917) passim). An enumeration of some of his powers reveals

 

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272 U.S. 523 Gorwin, op. cit., supra, at pp. 240, 2415'Willoughy on the
?onstitution of the United States, 2nd ed.,L p. 1477). ?By'virtue of the
express powers given to the President in the Constitution, plus an inherent
power in the executive not derived from the Constitution but a heritage from
the British Crown (see, Panama Refining.Co. v. Egan, 283 U.S. at 422; Note,
50 Harvard Law Review, p. 692), the PreSident has vast powers in the field
of foreign relations which he has exercised on many occasions. (Garner,

31 A.J.I.L. (1937) 289?293; ?orwin, The Fresident'S'Control of Fbreign

.. 

their great scope. He alone ,qai?ijneggqt?gateg?areaties. die can negotiate so-
called executive agreements, in reality?an important treatyhmaking power
independent of the Senate. (United States v. Curtiss?wright, 299 U.S. 304;
299 U.S. 304; United States v. Belmont, 81 L. Ed. 715). in certain cases,

he alone has dendunced and terminated a treaty; (See Van der v.

Ocean Transport 00., 297 U.S. 11L, 117?118; Corwin, The President: Office
and waers, p. 243; Hyde's International?Law, Vol. 2, pp. 1519 ff.) It is
within his power to sever diplomatic relations with foreign governments, an
act which is generally'followed by'war. He may cause offense to other nations
by refusing to receive or by dismissing a foreign representative. He is at
liberty?to accord or'withhold recognition of fOreign states and belligerents,

 

 

.also an act which may involve this country i??war. He can expel aliens, order

foreign vessels to leave American ports, demand apologies or salutes of the
flag, send military forces into foreign countries. (For above, see Garner,
31.A.J.I.L. (1937) 289?293). He can order armed guards to be placed on all
American merchant vessels (Corwin op. cit. su ra, at p. 245). It is with
considerable justification that it has been said that although Gongress has
the power to declare war, in reality the President exercises it. (See,
Berdahl, war Powers of the Executive in the United States, p. 93).

 

 

 

   



. . . awe,

 



 

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AT THE ARCHIVES 

     
    



 Date

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Wrongs.

 

I.

23.5Ehe great power'which'the President exercises in the field of foreign
affairs was reviewed by tie Supreme Court in United States v. Curtiss?wrigyg
Cogp., supra. In sustaining the constitutionality-of a delegation of power
by Congress to the President to declare an embargo on shipment of anms
to countries engaged in the Chase War, the Court recognized that the
President has ?Very delicate, plenary power . . . as the sole organ of the
federal government in the field of international relations." It stated
(pp. 319-321): . .

. 

?Not only, as we have shown, is the federal power over

external affairs in origin and essential character different from-

that over internal affairs, but participation in the exercise of

the power is significanthy limited. In this test external realm,

m?thits important, complicated, delicate and manifold problems, the

President alone has the power tq??peah?or listenb?s a representative

of the nation. He nakes'treatieS?WEth the advice?end consent of

the Senate; but he alone negotiates. Into the field of negotiation
?the Senate cannot intrude; and Congress itself is powerless to invade

it. As marshall said in his great argument of march.7, 1800, in

the'House of Espresentatives, 'The President is the sole organv

of the nation in its external relations, and its sole representative
.?With.foreign nations.? Annals, 6th Cong., col. 613. . . .



"It is important to bear in mind that werare here dealing not
alone.with.an authority vested in the President'by an exertion of
legislative power3 but with such.an authority'plus the very delicate,
plenary and exolusive'power of the President asthe sole organ of the
federal government in the field of international relations-?a power
'which does not require as a basis for?its exercise-an act of Congress,
but which, of course, like every other governmental power, must be

exercised in subordination to the applicable provisions of the
Constitution. . . . Mbreover, he, not Congress, has the better
Opportunity'of knowing the conditions Which prevail in_foreign
countries, and cepecially is this true in time of war. He has

his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in reapect
of information gathered pg the amqube highly necessary, and the

it, im

premature disclosure of it predugtive'of harmf?h?results.?

24.These broad_posers of the President entail corresponding obligations
- on.his part to take action, within Constitutional limits? of course, when
the national security so demandS'fSee, Panama Befining Co, v. gang, supra,
at United States v. Curtiss?wright, supra, at 3273 39 Op. Atty. Genl.
?83, 27 August 1940). These obligations have been recognised in many
instances by various Presidents and their action fUrnishes ample precedent
for that which is contemplated here. One of the most dramatic instances
of the use of Presidential power was in connection with the acquisition by
,the United States of bases from theBritish Government in exchange for a
number of destroyers. The Attorney General sustained the legality of
the exchange, basing it on power-of the President over fereign relations
as defined ?inthe Curtiss?Wright case and as Cmmnander in Gl'?ef 



 

 

 

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EPRODUCED ATTHE NATIQNAL 

  

 

 

'between'the United States and foreign countries.

 

  

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25%bre directly in point are numerous instances in.which

Presidential power has been asserted to control communications

Thus, President

Grant gave permission to a French company upon certain stipulated . 

conditions to land submarine cables in this country. The'right of 3

the President either to grant or refuse permission to_foreignrcom? . 

panics to land submarine cables was sustained by the Attorney 

General who placed the President's power to act on the twofold - 

basis of the "fundamental rights which grow out of the juris?. 

diction of this nation over its own territyry" and the President's I

constitutional powers over foreign relations (22 Op.Atty. Genl.l3; 


I
.
g,

rtrt??rm?n?

see also, 30 Op, Atty. the Pres?

ident was denied in United States vs: Western Union 00.,

.(272 Fed. 311, aff?d 272 Fed. 893 (can, 2nd, 1921), decree reversed

by stipulation 260 U.S. 754), that case would appear to be atleast
doubtful in View of the broad language of the Supreme Cburt in the
Curtissewright case. . 

26$sr*greater power over foreign communications was exercised
by the President at a time when this country was at peace, when,
on 5.August,l9l4p he issued an Executivs Order prohibiting all
radio stations within the jurisdiction of the United States ?from
transmitting or receiving for delivery messages of an unneutral
service during the continuance of hostilities.? To enforce this
order, a censorship was established over radio stations. Upon

?complaint of the marconi'Wireless Telegraph Co. of America, an

opinion of the Attorney General was scught as to'the legality of
the action. The'Attorney General held that not only was censor-
ship Within the lawful power of the President, but that, if
necessary, the President might seize the radio station to effect
compliance. In so holding the Attorney General stated (30 Up.
Atty. Genl. 291, at pp, 2.92, 293):

1

?The President of is stethe head of
one of the three great coordinat??departments?ofwthe Governr
ment. He is Commander in Chief of the Army and the Navy.
In the preservation of the safety and integrity of the
United States and the protection of its responsibilities
and obligations as a sovereignty,,his powers are broad.

In the words of nr. Justice Miller in lg 52 Neagle (1890),
135 U.S. 64, his power includes the enforcement of ?the
rights, duties, and obligations growing out of the Consti-
tution itself, our international relations, and all the
protection implied by the nature of the Government under

the Constitution.?

 

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PRODUCED AT THE NATIQNAL ARCHIVES
.7 - 

 

 

   
 

   

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?If the President is of the opinion?that the relations of
this country with foreign nations are, or are likely to be,
endangered by actions deemed by him inconsistent with a due
neutrality, it is his right and duty to protect such relations; and
in doing so, in the absence of any statutory restriction, he may
act through such executive officer or department as appears best
adapted to effectuate the desired ends The act of such'executive
officer or department in such case is the act of the President;

a denial of the officer's authority is a denial?of the President's
pONer' xx,

"The powers above outlined are not novel; they have been
exercised in numerous emergencies by Presidents of the United
States; and, whenever their exercise has been attacked in legal
proceedings, their validity has, with hardly an exception, been
upheld by the courts. Such powers intrusted to the President
are of a fundamental nature, exerted to maintain or preserve the
'security of the Nation, and subject to that high responsibility
to which the Executive is held by the emerican people; they are
not likely to be abused, and not without the gravest reasons are
the courts likely to withhold their sanctionL? -

27- The censorship of radio communications or the seizure of a radio
station to enforce the censorship, in peace time, involves the exercise
by the President of far greater powers over communications than are now
sought to be exercised. It may be imperative for the President in the
discharge of his tremendous duties in foreign affairs to be apprised
'Of information in the possession of foreign governments. In the exercise
of his powers over foreign relations, the President has takeiaction to
prevent and control foreign communications. It is no'greater exercise
of power to obtain copies of communications, sent by cable or telegraph,
between foreign governments or to intercept such communications. It
is open to serious constn?utionally take
away this pewer from.the President. "t see statement

(To similar effec 
of Attorney General Biddle in commenting on H.J. Res. 283, a joint
resolution to authorize'wire tapping and other intelligence activities

in the prosecution of the war Without regard to the limitations contained
in Section 60g; Hearings before the House Committee on the Judiciary,

77th Gong., 2nd Sess., p. 1). Since, neither in the express language

of Section 605 nor in its legislative history is there any indication

that Congress sought to affect this power of the President, it should

not be construed so as to raise serious doubts as to its constitutionality,
.or to limit the power of the President in this very important activity.

.

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28. These broad powers of the President were implicitly recognized
in the first clause of Section 605, which.provides that the contents of
the communications specified must be divulged in response to a sub-.
poena issued by a court of competent jurisdiction, or "on demand of
lawful authority?. The intelligence activities in question contemphate
the voluntary production by telegraph companies or other private persons
of the communications here discussed. It is not proposed that private

companies be compelled, by judicial or other action, to divulge such
communications. However, it has been submitted that the President would
have the power, if he saw fit to exercise it, to compel the production
of such documents. Ibes "lawful authority? include a.lapful demand by .

theePresident, or by the War ahd??avy??e?ar??ents acting?hnder his direction?
as has been seen, there is no indication in the statute or its legislative
history that the President's power in this respect.was sought to be limited..

Indeed, the provision that the communications must be divulged on demand

of lawful authority is clearly a recognition by Congress that a case might
arise where it would be necessary for lawful authority, in addition to that of

a court, to obmain the communications. In Newfield v. Egan {91 F. (2d)
700, can Etkb 1937; cert. den. 302 U.S. 729), pursuant to a provision in

the Securities Act of 1933 authorizing the Securities and.Exchange Commission

to require the production of documents in an investigation {15 U.S.G.A.

sec. 778), its agents had issued subpoenas duces tecum to Postal Telegraph

and Western Unidn requiring those companies to produce all telegrams with
respect to certain securities transactions.
constituted a "demand of other lawful authority? under Section 605.
The court stated: A 

"It is to say that if, in demanding of the telegraph companies
production and inspection of the-messages in question, the
commission and commission defendants are about their lawful
business plaintiffs' bills must fail, not because plaintiffs
have no standing to prevent the unlawful disclosure of their
telegrams, but because sought is a?lawful one,
of which plaintiffs may 705)5%p? .

29. It was stated in the Newfield case that messages filed with

telegraph companies "mhile protected from the prying of the merely curious"

are not protected from the demand of_lawful authority.
ful authority was held to be the authority of the Securities and Exchange
Commission to issue subpoenas in aid of an investigation.

In that case,-1awi,

The court held that the subpoenas

The Presidential 

power to compel production of cOpies of dQCUments in the interest of national
security and pursuant to his constitutional authority is no less a demand of
lawful authority than the demand of the Securities-and Exchange Gommission.
{The proper demand of a duly authorized Congressional Sommittee for production

of cOpies of telegrams in order to aid in its investigation would also be
the demand of lawful authority. See, Hearst v. Black, 87 F. (2d) 68, 70,
71 (1936).)

 

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NATIQNAL ARCHIVES

      

 

 

 

 

 

There is no constitutional objection to the intelligence activities
in Question.

39,The only provision in the Constitution which need be censidered 
is the prohibition in the Fourth Amendment against unreasonable search
and seizure. The Fourth Amendment provides"The right of the people to be secure in their persons,

1; houSes, papers, and
seizures, shall not be violated; and nO'warrants shall issue, but
upon probable cause, supported by oath or affirmatidn, and
particularly describing the place to be searched, and the persons
or things to be seized." -

 

The interception of cabled communications is similar to the tapping of
telephone wires, and both activities involve identical constitutional
questions under the Fourth.&mendment. It has been squarely held by

the Supreme Court in Olmstead v. United States, 277 that the
tapping_of telephone wires does not violate the Fourth Amendment. In 5
so holding, the Court stated: 

."The-United States takes no such care of telegraph or?telephone
messages as of mailed sealed letters. The amendment does not forbid
what was done here. There was no searching.? There was no seizure.
The evidence was secured by the use of the sense of hearing and that
only. There was no entry of the houses or offices of the defendants

(pp. 464?465) . . .

 

?Neither the caseS'we have cited nor any of the many federal
decisions broght to our attention hold the Fourth Amendment to

have been violated as aga?nstpa?defendant has been i

an official search and seizur??ofihis?person, on?fuch a seizure 

of his papers or his tangible material effects, or an actual 

physical invasion of his house 'or curtilage? for the purpose of 1

making a seizure." 466) 

The holding in the Olmsteag?case was Specifically adhered to I
and'reaffirmed by the Supreme Court in Goldman v. United States, 316 U.S.

. 129, 135 (1941), where it was held that the use of a detectaphone, whereby

1 conversations in the office of a defendant were overheard through contact

on the wall of an adjoining room, did not violate the Fourth Amendment.

(See also, Goldstein v. U. 3., 316 U. S. 114; 'Valli v. U. 8., 94 F. (2d)

68? (CCA, 1st, 1938), dis?d 304 U.S. 586; Kerns v. U. 3., 50 F. (2d) 602
(GOA, 6th, 1931); Hubin v. State, 23 A. (2d) 706 (Ct. of 1942).
'It is thus clear that upon the authority of the Olmstead and Goldman casesassess "1Daie 

 

   

 

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the interception of a cabled message, either by tapping the cable or by
the use of a detectaphone or other device which picks up the message, is
not an unreasonable search or seizure. fortiori, neither is the inter-
ception of messages sent by radio.

?32. As the court stated in the ?lmstead Opinion (92. g1..,supra, at
p. 4.64), there is no analogy between interception of this nature and the
unlawful rifling by a government agent of a seals letter, which was
condemned as a violation of  Ergb?hc?mendment in [Ex parte Jackson,
E96 11.8. 727. _No one is being?$1115 eict?lgidvtd a searcher seizure of any
kind; no one .is called upon to produce eiridence to be used in a criminal
proceeding or to testify against himself. Under those circumstances,
there is nothing in the contemplated activities which can properly be
regarded as a search or seizure, reasonable or unreasonable. (Newfield
v. man, 91 F.2d 700, (66A, 5th 1937), cert. den'd, 302 U.S. 72-95
McMann v. S.E.C. (GOA, 2nd, 193'? 87 F. 377, cert. den. 301 U.S. 684.);
See also, Carroll v. 11.8., 26'? HRS. 332; Isbrandtsen?Moller Co. v. U.S.,
. 300 (LS. 19393 Fleming v. Montgomery Ward 8: 00., 114 F.2d 384, cert. den.
311 11.8. 690..) . .

 

33. It is equally clear that the production by telegraph companies,
either voluntarily or upon lawful demand, of cOpies of telegrams in its
files does not infringe upon the guaranties of the Fourth 
Demand upon a third party for copies of telegrams does not constitute
a search or seizure of preperty of the?'ssnders or recipients. (Newfield
v. Egan (93. git., supra, atp. {See also, U.S. v. Mobile, 295 Fed.
M2, aff'd 267 576). Voluntary production of documents clearly is
not a search or seizure. (See, Feldman v. U.S., 64 S. Ct. 1082 (1944);

U.S. v. O'Dowd, 273 Fed. 600). The View expressed in Hearst v. Black

'i87 F. (Ed) 68 (1936), that ?a dragnet seizure? by the Federal .-Gommunications
Commission and a Senate Committeeofpgiyate telegraph messages constitutes
an unlawful trespass, does proposed
activities. For here there is no dragnet seizure, but a restricted

examination for a legitimate purpose of only communications of foreign

I governments, their agents or representatives, and certain communications

 of foreign commercial enterprises.

 

 

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 DDUCED AT THE ARCHIVES 

     

    
 

 

 

 

 

 

 

 

The activities do not violate principles of diplomatic immunity
or of international law.



34. There is no principle of diplomatic immunity or of international
law which is violated by the activities in question. Although under principles
of international law official diplomatic correSpondence is deemed inviolable
(Hyde, International Law. 2nd ed., sec. 528), there is no principle of inter?
national law which forbids the tapping of wires or the examination of cabled
communications. In discuSSing the problems raised by the activities, a
distinction must be made between?ihet??gj] o, a nationltg censor or prohibi
communications and the right merely to intercept and examine. It is 
recognized that it is generally improper to censor or interfere with
diplomatic communications of any kind. (Article 14, Harvard Draft Convention
on Diplomatic Privileges and Immunities, (Supp.) Egg.)
Thus, it is stated: a 

"International IaW'recognized the principle of freedom.of
diplomatic communications at a time when the carriage'of such
communications was made by special couriers furnished with pass-
ports ad hgg. While the earlier means are still employed, at the

'present time international official intercourse makes use of whatever
means are available: courier, mails, telegraph, telephone, cable,

or radio. Modern means of communication having changed the methods

of diplomatic intercourse, no interference by the receiving state

with the communications of missions or of members thereof is tolerable."
?ibid., Comment on the Draft, at p. 80).

?That a sending state may freely'communicate with.its mission
without interference by the recsiving state is fundamental to the
maintenance of diplomatic intercourse and is a principle universally
recognized35. This means that there?shalf 4e freedom in the choice of the means
used to transmit diplomatic communications; it does not mean that there

shall hot be interception of the communication. It may be argued that logically
perhaps, the principle of the inviolability of diplomatic correspondence should
extend to a prohibition against the mere tapping or interception of messages
sent by radio or cable. But an examination of authorities, both.applicable

a: treaties and texts, as well as the practice of nations, reveals that no

13 such application has been given to the doctrine. There seem to be two

reasons for not extending the doctrine of inviolability to such communi?
cations. First, the intelligence activities under discussion here are

a? primarily of a political or military nature (See, Manes, International Comp

"i munications, 1943, p. ll) and no doubt nations are reluctant to relinquish

the right to conduct the activities in the absence of a general agreement

to do so by all. Second, the nature of the communications is

 

 

 

    
 

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DECLASSIFIED
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such that?absolute secrecy is impractical, if not impossible, for the
contxel of communications by a state entails a certain amount of regulation
and inspection. k3ig., the right of the Federal Communications'Gommission
to examine all such.communications in the exercise of its functions.)

36. The only applicable treaty binding on the United States is the
International Telecommunication Convention, signed at Madrid in 1932 by
all the leading powers. ?49,3tat. (pt.u2) 2391; Treaty Series Ne. 867; .
see also, International Case?pr. of Permanent 3
Legal Committee of the Organization for Communications'and Transit of?
the League of Nations; Annual Eigest of Public International Law gases,
l?29?l930, p. 416.) .Article 24 thereof provides as follOWS:

The contracting parties undertake to adopt the necessary .
measures, compatible with.the system of teleecommunications in 3
use, in order to ensure the secrecy of international correSpondence. 

Nevertheless they reserve the right to communicate inter?
national correSpondence to competent authorities in order to ensure
either the application of their internal legislation or the execution
of international conventions to which the interested Governments are
parties.? 417) 

(See also, article 2 of the General Radio Regulations annexed to
the Convention, Bairo Revision, 1938.{Treety Series No. 948, p. 146)).

37. There is no indication that these provisions insuring the secrecy
of international correspondence were intended to prohibit the interception
and examination of the communications in question. In view of the fact
that apparently all major powers engage in these intelligence activities,
if it was intended to prohibit them an express prohibition thereof would have
been made. Furthermore, an exbh?ti?h??9?the requirement for secrecy is 
recognized in Section 2, Article 24?in'brder to ensure the application of
the internal legislation of the state. These intelligence activities may well
be said to he pursuant to our internal legislation, the power of the I
President under the Constitution, or his powers under the Communication Act
to demand telegrams as "lawful authority." 

 

 

      
     

 

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[Conclusion 
. 38. It is therefore concluded that the activitie? specified in
i paragraph.2, supra, are lawful. 

I 
. - - 

 


IHRON 0. CRM ER
Major General
The Judge Advocate General