Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Exceptions to Statutory Reporting Requirements: As chief recipient of agency reports, Congress very obviously suffers the maximum loss when it sanctions suppression of reporting requirements in the interest of national security. Indicative of its sacrifice are provisions in the Communications Act of 1934 authorizing the Federal Communications Commission “to withhold publication of records or proceedings containing secret information effecting the national defense.”[458] Of like import is the requirement in a statute delegating to the President power to authorize production, transfer or export of war material by federal agencies. The Chief Executive had to notify Congress at least every 90 days regarding war material exports. He could withhold, however, whatever information disclosure of which he deemed incompatible with the public interest.[459] In the month following Pearl Harbor the Secretary of State was authorized during the existence of a state of war to omit or dispense with reports required by the Neutrality Act of 1939.[460] In extending the effect of certain emergency statutes Congress, in the Mutual Security Act of 1951, permitted the President to submit biannual reports on operations under the Act. He was privileged to exclude from his report information, the disclosure of which he deemed incompatible with the security of the United States.[461]

To prevent information of value to the enemy from being disclosed in litigation during World War II, Congress provided for staying of judicial proceedings against the U.S. in time of war on claims for damages caused by Navy vessels, or for towage or salvage services to such vessels, when the Secretary of the Navy certified that the prosecution of such proceedings would endanger the security of naval operations or interfere therewith.[462] Upon receipt of certification courts were required to stay all further proceedings in a suit until six months after the cessation of hostilities or until an approved earlier date as stated in the certificate. The claimant could petition the Secretary of the Navy to reconsider the stay, but his petition was not to contain any recital of the facts or circumstances involved. Identification of a petitioner’s case was to be solely by reference to the Secretary’s certificate.[463]

Suspension of Financial Controls: In a partially regulated economy, advertising and competitive bidding on public contracts benefit producer and taxpayer. These requirements insure relatively equal access to public contracts by private entrepreneurs, minimize nepotism or favoritism, and protect the public from extravagance. In a controlled war economy advertising and public bidding very probably would frustrate efforts to rationalize the productive facilities of the nation, and certainly would present the enemy with valuable intelligence. Indeed, intelligence considerations may lead to provision for the secret letting of certain contracts, even in time of peace.

The chief of the supply service of the War Department was authorized in 1936 to purchase materials for the Chemical Warfare Service or the Signal Corps in whatever manner he deemed most economical. This authority was delegated to the chief of the supply service in order to prevent secret military information from being divulged to the public.[464] A 1939 Act to authorize the procurement, without advertising, of certain aircraft parts and instruments or aeronautical accessories, contained a similar provision.[465] If a secret order was necessary, the Secretary of War, after certification to that effect, could submit the proposed purchase to three reputable concerns for their respective bids.[466]

After the fall of France, an act of June 28, 1940 to expedite national defense authorized the Secretary of the Navy, whenever deemed necessary by the President during the existing emergency, to negotiate contracts with or without advertising or competitive bidding upon determination that the price was fair and reasonable.[467] A few days later a more general statute gave the President plenary power to authorize the War Department to purchase urgently needed military hardware during the great national defense revival of 1940-41, with or without reference to advertised bids.[468] As long as the President could justify his actions as necessary “to provide for emergencies affecting the national security and defense,” (and who, within the Congress or among the public, had access to the information essential to challenge the military necessity for given presidential action), he had virtually a carte blanche authority to write his own ticket. The great atomic bomb project, involving the ultimate in secrecy, was carried forward without the Congress being aware that the two billion dollars subsequently appropriated for the Manhattan Project were being expended for development of a weapon that might never work.[469]

Title II of the First War Powers Act, enacted shortly after Pearl Harbor, permitted the President to “authorize any department or agency of the Government exercising functions in connection with the prosecution of the war effort, ... to enter into contracts and into amendments or modifications of contracts ... without regard to the provisions of law”.[470]

Appropriation measures, as for example the Independent Offices Appropriation Act of 1948, included funds to be expended for objects of a confidential nature and required auditing officials to accept the certificate of the expending agency as to the amount of the expenditure and that it was deemed inadvisable to specify the nature thereof.[471] Similarly, the National Military Establishment Appropriation Act of 1950 stipulated that the determination of the propriety of expenditure of the funds by the Secretaries of the military departments should be final and conclusive upon the accounting officers of the government. Payments from this appropriation might in the discretion of the Secretary, be made on his certificate that the expenditures were necessary for confidential military purposes.[472] The Central Intelligence Agency Act of 1949 granted the Central Intelligence Agency a sweeping exemption “from the provisions of any law which requires the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by it,” and provided further that “the Director of the Bureau of the Budget shall make no reports to the Congress in connection with the Agency.”[473]

Suppression of Information Concerning Inventions of Military Significance: Here an abridgment of a private economic right which is quasi-constitutional in character is justified on grounds of security. The Government appears to be concerned not so much with gaining access to inventions as with suppression of the publication, particularly abroad, of inventions of military value.[474]

A Congressional Act of July 1, 1940 states in part: “Whenever the publication or disclosure of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense he may order that the invention be kept secret and withhold the grant of a patent for such period or periods as in his opinion the national interest requires.”[475]

Like provisions are contained in the Invention Secrecy Act of 1951. When the head of a government agency holding a property interest in an invention deems publication or disclosure by the grant of a patent detrimental to the national security, the Secretary of Commerce, as soon as notified, is required to order that the invention be kept secret and withhold the patent therefore.[476] When the Secretary of Commerce believes that publication or disclosure of an invention by the granting of a patent, in which the government does not have a property interest, might be detrimental to the national security, he must make the application for patent in which such invention is disclosed available for inspection to the Atomic Energy Commission, the Secretary of Defense, and the chief officer of any other department or agency of the government designated by the President as a defense agency of the United States. He must also issue a secrecy order at the request of any of the defense agencies. Moreover, if there is a proper showing by the head of the department or agency who caused the secrecy order to be issued that the examination of the application might jeopardize the national interest, the Secretary of Commerce must maintain the application in a sealed condition and notify the applicant accordingly.