In an opinion I have furnished you at your request, I have advised you of my conclusions that: First, the view taken by the Comptroller General in his letter of December 8, 1960, that the proviso contained in section 533A(d) of the Mutual Security Act of 1954, as amended, has operated to cut off the funds here in question, is erroneous. Second, that if this view of the Comptroller General as to the meaning of the proviso is correct, the proviso is unconstitutional. Third, that therefore, despite the Comptroller General’s letters of December 8, 1960, and December 13, 1960, these mutual security program funds continue to be available as heretofore for the expenses of the Office of the Inspector General and Comptroller. The reasons for these conclusions are set forth at length in my opinion.
Your directives to the Secretaries of State and the Treasury are, you advise me, in your judgment desirable to insure that mutual security program funds will be available until the end of your term of office on January 20, 1961, as heretofore for the expenses of the Office of the Inspector General and Comptroller. Under these circumstances, I am of the opinion that you, as Chief Executive, have the authority to issue the directives.
Respectfully,
William P. Rogers,
Attorney General
Opinion of the Attorney General of the United States Dated December 19, 1960
MUTUAL SECURITY PROGRAM—CUTOFF OF FUNDS FROM OFFICE OF INSPECTOR GENERAL AND COMPTROLLER
Section 533A(d) of the Mutual Security Act of 1954 added by section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253), which directs that the expenses of the Office of the Inspector General and Comptroller with respect to programs under the Mutual Security Act be charged to the appropriations made to carry out such programs, provided that all documents, reports, and other materials relating to the operations and activities of that Office are furnished upon request to the General Accounting Office, or to any appropriate congressional committee or duly authorized subcommittee, does not authorize the funds of the Office of the Inspector General and Comptroller to be cut off because of the failure of the State Department to furnish certain documents relating to that Office to a congressional subcommittee, if the President has issued a certificate pursuant to section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961 (74 Stat. 778), to the effect that he has forbidden the production of those documents and states his reasons for so doing. A contrary conclusion reached by the Comptroller General is incorrect, and, therefore, funds continue to be available as heretofore for the Office of the Inspector General and Comptroller.
The proviso in section 533A(d) does not expressly authorize the funds of the Office of the Inspector General and Comptroller to be cut off, and such a drastic consequence should not lightly be inferred from ambiguous statutory language. Other provisions of the Mutual Security Act of 1959, the Mutual Security Act of 1960 (74 Stat. 134), the Mutual Security and Related Agencies Appropriation Act, 1960 (73 Stat. 717), and the Mutual Security and Related Agencies Appropriation Act, 1961, indicate a congressional purpose not to compel the disclosure of information concerning the mutual security program which the President considers to be incompatible with the security of the United States. Section 533A(d) should be read in the light of this purpose.
Section 533A(d) has been suspended by section 101(d) of the Mutual Security and Related Agencies Appropriation Act, 1961, which provides that the failure to furnish documents, etc., to Congress or to the Comptroller General will not result in a cutoff of appropriated funds if the President certifies that he has prohibited the production of the documents and states the reasons for this action.
A construction of the proviso to section 533A(d), requiring funds for the Office of the Inspector General and Comptroller to be cut off for failure to supply documents, notwithstanding the President’s certification, must be avoided because it not only creates constitutional doubts, but would, if correct, render the proviso unconstitutional. Congress cannot by direct action compel the President to furnish to it information the disclosure of which he considers contrary to the national interest. It cannot achieve this result indirectly by placing a condition upon the expenditure of appropriated funds.