Chapter Vii Control of Communications

A contemporary “revisionist” school of historians devoted to a reappraisal of accepted views of the cause and effect of American participation in the Second World War, attributes significance to the charge that the Roosevelt and Truman Administrations selected, withheld, and released data to historians in a manner calculated to distort the reasons for American involvement in that war. Similar charges of selective withholding or release of information, have, of course, been levied against the Eisenhower Administration.

A daily reading of responsible newspapers quickly discloses abundant examples of careful selectivity in the release of information by government officials, can scarcely be denied. Indeed scholars, journalists, and the American public are becoming increasingly dependent upon the release of information by the federal government for their interpretation of recent historical and current events. Whatever the import of this development, however, it is not within the scope of this treatise. The present chapter is limited to a survey and classification of statutory provisions relating to the withholding and release of information by the government. It is accordingly appropriate merely to acknowledge the possibility that intensive research subsequently may disclose to what extent public opinion has been prejudiced, distorted, or confused by the federal government’s policies concerning the release of information.

THE RELEASE OF INFORMATION BY THE GOVERNMENT

Statutes concerning the release of information by government agencies appear to have been drafted with a view to accomplishing the following purposes: (a) the convenience of other federal agencies; (b) promotion of program administration or enforcement; (c) to enable public opinion to influence and restrict administrative action. Legislative provisions aimed at disseminating information for the convenience of the public are included with (b) and (c).

The Convenience of Federal Agencies: The Tennessee Valley Authority Act of 1933 contains the only clearcut and noteworthy example of the convenience type of provision thus far ascertained. Section 19 of that Act affords the Tennessee Valley Corporation access to the Patent Office as an instrumentality and agency of the United States Government. The Corporation is authorized to study, ascertain, and copy all methods, formulate any scientific information necessary to enable it to employ the most efficient and economical process for the production of fixed nitrogen.

Publicity as an Instrument of Program Administration: As an instrument of program administration, publicity may be utilized to influence or coerce conformity with a program of control, or to facilitate the servicing of agency clientele. The use of publicity as an integral part of a control program is exemplified by routine publication of that which is prohibited, as well as by disclosure designed to exact compliance with government policy by subjecting those exposed to unfavorable publicity. Section 102 of the Defense Production Act of 1950, for example, prohibits the accumulation of scarce materials in excess of personal or business needs or for purposes of speculation. The President was directed to publish either in the Federal Register or elsewhere, a list of materials the accumulation of which would be unlawful. Violators of this section of the law would presumably suffer from publicity about unlawful hoarding, if and when their activities became known to the federal government. More explicit, but indicative of the same intent, was an Act of July 1940 permitting the President to publish a list of persons designated as collaborators with the Axis powers. Any person so designated was prohibited from receiving military equipment or munitions for export. In a proclamation of July 1941, President Roosevelt authorized compilation and publication in the Federal Register of “The Proclaimed List of Certain Blocked Nationals” under the Act.

In statutory provisions for registration of categories of persons, or maintenance of lists of various kinds, it is difficult, if not impossible, to discern the various purposes to be served by such requirements. Thus, if the major objective of the Foreign Agents Registration Act of June 1938 was to secure for the government current information concerning persons representing foreign governments or businesses, and to impose a penalty for failure to register as a foreign agent, certainly a minor purpose was to insure that members of the public also should have this information available to them. Section 4 of the Act required the Secretary of State to retain in permanent form all statements filed under the Act, and to make them available for public examination and inspection at all reasonable hours. One can hazard a guess as to what extent this publicity provision was designed to intimidate so-called foreign agents.

For a precise illustration of an attempt to utilize public opinion as a sanction, we need only look to the Labor-Management Relations Act of 1947, which, in specifying the procedures to be followed in settling national emergency strikes, obviously contemplated the marshalling of public opinion, at a strategic point, through publication of the second report of the President’s board of inquiry, describing the current position of the parties and the efforts made for settlement. The report is releasable after expiration of a sixty-day suspension of the strike, as ordered by a Federal district court on petition of the Attorney General.

In the Armed Services Procurement Act of 1947, Congress announced its intention that a fair proportion of the total purchases and contracts for supplies and services for the government should be placed with small business concerns, and provided with certain exceptions for suitable advance publicity to achieve this end.

In setting up the Small Business Administration in July 1953, Congress directed it to provide technical and managerial aids to small-business concerns, by advising and counselling on matters in connection with government procurement and on policies, principles, and practices of good management. Part of this responsibility would be met by maintaining a clearing house for information concerning the managing, financing, and operation of small business enterprises, by disseminating such information, and by such other activities as were deemed appropriate. Designed to achieve a similar result is the provision of the Federal Defense Act of 1950 enumerating among the functions of the Federal Civil Defense Agency that of publicly disseminating appropriate civil defense information.

To protect private enterprise the Defense Housing and Community Facilities and Services Act of 1951 requires that private enterprise be afforded full opportunity to provide the defense housing needed wherever possible and that, among other things, the number of permanent dwelling units needed shall be publicly announced and printed in the Federal Register. The Domestic Minerals Program Extension Act of 1953 provides that the responsible agencies controlling such strategic or critical minerals and metals purchase programs publish the amounts of each of the ores and concentrates purchased at the end of each calendar quarter under the program.

Publicity Designed to Enable Public Opinion to Influence and Restrict Administrative Action: Characteristic provisions in this category range from the requirement of publicity prior to taking action, sometimes with the explicit provision for outside approval or disapproval of proposed agency action, to the simple publication of action taken by the agency, and sometimes to an explanation thereof. The Bank Conservation Act of 1933 stated that before returning to private management a bank for which he had appointed a “conservator” (receiver), the Comptroller of the Currency publicize his intentions and obtain permission of the depositors and stockholders.

A steadily increasing number of statutory provisions require an agency to report in advance to Congress, the substance of contemplated agency action, which action cannot be implemented unless approved by the Congress. One example will suffice as an illustration. The Alien Registration Act of 1940 entrusted the Attorney General with a limited power to suspend deportation of certain aliens upon his finding that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of the deportable alien. Whenever deportation is suspended for more than six months, however, the Attorney General must furnish Congress the name of the person involved and all of the facts and pertinent provisions of law in the case. The information sent to the Congress is printed as a public document. If during the time Congress is in session the two houses pass a concurrent resolution stating in substance that the Congress does not favor the suspension of such deportation, the Attorney General is obligated to deport the alien in the manner provided by law.

The Reciprocal Tariff Act of 1934 provides that prior to conclusion of a foreign trade agreement reducing tariffs, reasonable public notice of the intention to negotiate an agreement should be given in order that any interested person might have an opportunity to communicate his views to the President. A similar provision in the Emergency Price Control Act of 1942 required, so far as practicable, consultation by the President with members of affected industries prior to establishment of maximum prices, and publication of such regulations or orders accompanied by a statement of the considerations involved in the issuance thereof.

The remaining statutes simply provide for publication of agency action, although in a context which indicates that publication could be viewed as a check upon the agency’s discretion. The Coordinator of Transportation, an office created by the Emergency Railroad Transportation Act of 1933, was required to make public in such reasonable manner as he might determine orders which he issued under the Act. The orders were to become effective not less than twenty days from the date of publication and in the interim interested parties might file petitions asking that the order be reviewed and suspended pending review. The Chairman of the War Production Board, acting with the Attorney General, was given the power with regard to the antitrust laws and the Federal Trade Commission Act to temporarily suspend action against violators. The Attorney General was required to order published in the Federal Register every instance of the exercise of this power. The Japanese Evacuation Claims Act of July 1948 provided that written records of hearings, open to public inspection, be maintained. In formulating new criteria for identification of a critical defense housing area Congress, in the Housing and Rent Act of 1953, required publication in the Federal Register of notices that before applying the new criteria, a determination had been made to the effect that a specified area constituted a critical defense housing area.

SUPPRESSION OF INFORMATION BY GOVERNMENT

Statutory provisions falling within this category may be subdivided into four groupings: (a) exceptions to statutory reporting requirement; (b) suspension of the requirement that contracts be let only after public bidding; (c) suppression of information concerning patent applications of military significance; (d) maintenance of secrecy of testimony under certain conditions at the request of the person testifying.

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.” 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. 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. 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.

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. 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.

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. A 1939 Act to authorize the procurement, without advertising, of certain aircraft parts and instruments or aeronautical accessories, contained a similar provision. 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.

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. 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. 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.

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”.

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. 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. 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.”

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.

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.”

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. 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.

Secrecy of Testimony: Two statutes examined contained provisions requiring or approving the suppression of information at the request of persons who had provided it to emergency agencies. In Section 202 thereof the Emergency Price Control Act of 1942 authorized the Price Administrator to make investigations, subpoena witnesses, and compel testimony upon the grant of immunity from prosecution. The same Act also provided that the Administrator should not publish or disclose any information obtained under the Act that the Administrator deemed confidential or with reference to which a request for confidential treatment had been made by the person furnishing such information, unless he determined that the withholding thereof was contrary to the interest of the national defense and security. This, of course, is the reverse of the usual requirement that information be made public unless contrary to the interest of the national defense and security. The Export Control Act of 1949 also contained a compulsory testimony provision, with the requirement that, except as necessary to the national interest, information given in such testimony be kept confidential upon request of the witness.

REGULATION OF PROPAGANDA ACTIVITIES

The Foreign Agents Registration Act of 1938, provided for public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the government and the public could be informed of the identity of such persons and could thereby appraise their statements and actions in the light of their associations and activities. By virtue of a 1942 amendment the necessity for foreign agents to register with the Attorney General was waived for agents of allied and friendly nations and thus propaganda efforts encouraged. These agents could escape the registration requirement provided they engaged only in activities which were in furtherance of the policies, public interest, and national defense, of their own government and the American government, and were not intended to conflict with any of the domestic or foreign policies of the United States. However, the agent had to be convinced of the truth and accuracy of each communication or expression which he made in this country.

Under the same Act persons required to register as foreign agents also had to furnish the Library of Congress with two copies of any political propaganda intended for dissemination to two or more persons. This material had to be transmitted within forty-eight hours after dissemination had begun and it had to be accompanied by a statement, duly signed by or on behalf of the agent, setting forth full information as to the places, times, and extent of actual transmittal. In addition, the Act made it unlawful to disseminate the matter unless the political propaganda was conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in the political propaganda. The Act further required that the person transmitting political propaganda be registered under the Act with the Department of Justice “as an agent of a foreign principal, together with the name and address of the agent and of each of his foreign principals.”

The Internal Security Act of 1950 applied a similar requirement to any organization registered as a Communist organization, or ordered to register by the Subversive Activities Control Board. Such an organization is guilty of a crime if it transmits through the United States mails or by any means or instrumentality of interstate or foreign commerce, any publication which is intended to be, or which it is reasonably believed will be, circulated or disseminated among at least two or more persons, unless the container in which the publication is mailed contains this statement: “Disseminated by ----, a Communist organization.” Programs sponsored by Communist organizations on radio or television, in order to comply with the Internal Security Act, must be preceded by the statement, “the following program is sponsored by ----, a Communist organization.”

CENSORSHIP AND OTHER RESTRICTIONS

Thus far we have surveyed the discretionary power granted government agencies, consistently with national defense to withhold information from the public, the courts or the legislature, and those powers accorded the executive branch to regulate or conditionally promote propaganda activities of foreign nations. The following section pertaining to censorship and other restrictions may be differentiated from the foregoing as follows. Whereas the first section dealt with government agencies as custodians of information, here we are concerned with limitations imposed upon the efforts of individuals and groups to secure information or to disseminate specified kinds of information which they may possess.

The relevant statutes are reviewed under three headings. Certain statutes prohibit the acquisition or attempted acquisition of specified types of defense data. Others prohibit the dissemination of specified kinds of information, or the communication of prescribed opinions. A third group of statutes reflect the disposition of Congress to empower the government to review and edit personal communications media.

Illegal Acquisition of Defense Information: In January 1938 the President was authorized to define certain vital military and naval installations or equipment requiring protection against the general dissemination of information about them. It became unlawful thereafter to make any photograph, sketch, picture, drawing, map, or graphical representation of these vital military and naval installations or equipment without first obtaining the permission of the commanding officer of the installation concerned. If permission were granted to anyone seeking information, it was necessary to submit to censorship whatever information had been obtained.

Dissemination of Information and Proscribed Opinions: The same 1938 statute also made it illegal to reproduce, publish, sell, or give away data without first obtaining official permission. The Alien Registration Act of 1940 proscribed the advocacy of certain opinions. It is unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States by seeking to advise, counsel, urge, or in any manner cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States. And it is unlawful for any person to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty or mutiny. This Act also makes it unlawful to knowingly or willfully seek the overthrow of any government in the United States by direct or indirect action. Equally proscribed is any effort which has as its goal the assassination of any governmental official. Conspiracy to commit any of the acts enumerated in the statute is also unlawful.

The Export Control Act of 1949 gave the President power to prohibit or curtail the export of technical data. Also pertinent is the stipulation in an August 1953 statute permitting the government to lend certain vessels to Italy, which prohibited the transmission to Italy of information, plans, advise, material, documents, blueprints, or other papers bearing a secret or top secret classification.

In 1951 legislation was enacted prohibiting disclosure of classified information. It is unlawful knowingly and willingly to communicate, furnish or transmit to an unauthorized person the following categories of classified information: (1) codes, cipher or the cryptographic system of the United States or any foreign government; (2) the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any government for cryptographic or communication intelligence purposes; (3) the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government knowing the same to have been obtained by such processes. Violators of this law can be fined up to $10,000, be imprisoned for ten years, or suffer the imposition of both penalties.

The Communist Organization Registration Act of July 1954 requires organizations found by the Subversive Activities Control Board to be Communist-action or Communist-front organizations to provide the Attorney General a listing of all printing presses and machines. The list of different kinds of presses is very extensive.

Censorship of Communications Media: The War Powers Act of December 1941 specifically empowered the President to establish censorship of communications between the United States and foreign countries. During the existence of the war, the President, at his discretion, established rules and regulations for the censorship of communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country. The authority to prescribe the rule by which censorship would be applied, extended to communications carried by any vessel or other means of transportation touching at any port, place, or territory of the United States and bound to or from any foreign country.

A month later the Communications Act of 1934 was amended to enable the President during time of war or threat of war to regulate or close any or all facilities or stations for wire communication within the jurisdiction of the United States. Nearly ten years later this power was extended to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States. The power to close stations for radio communication within the jurisdiction of the United States included those suitable as navigational aids beyond five miles of the United States.

ACQUISITION OF INFORMATION BY THE GOVERNMENT

Examined herein are statutes requiring private persons or groups to report their activities to government agencies, or compelling them to testify before such agencies; and providing for the conduct or study of experiments by government agencies, including congressional committees, for the purpose of obtaining certain information. Other measures provide for a variety of investigations, inventories, audits, etc., to be conducted by government agencies and congressional committees, and intelligence.

Compulsory Reporting: Compulsory reporting on an occasional or periodic basis, it is generally assumed, constitutes an effective enforcement device. Thus to aid the President in effectively exercising the powers granted therein, the Bank Conservation Act of 1933 provided that he might require specific, detailed, and confidential information to be given under oath by any person then engaged in the banking business. The President could require the production of private papers, letters, contracts, books of account or other papers in the custody of the person required to produce them. Not until a very detailed and thorough examination of the information sought had been completed, could an accurate report be prepared in compliance with the Act. The National Industrial Recovery Act permitted the President to impose such conditions (including requirements for the making of reports, the keeping of records and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest as he saw fit, as a condition of approval of codes of fair competition. Another section of the Act required trade or industrial associations, if they were to receive the benefit of exemption from antitrust prosecution, to file a statement with the President in accordance with regulations promulgated by the Chief Executive. The Securities Exchange Act of 1934 similarly required periodical reporting as did the 1935 enactment directed at preventing the interstate shipment of contraband oil.

The first Neutrality Act imposed upon all persons required to register with the National Munitions Control Board an obligation to maintain permanent records of all arms, ammunition and implements of war manufactured for importation and exportation under the rules prescribed by the Board. The requirement was continued in the 1937 Amendment which designated the Secretary of State (Chairman of the N.M.C.B. under the old and the amended Act) as recipient of the information to be submitted. The Foreign Agents Registration Act of 1938 (as amended in April 1942) not only required the filing of registration statements by agents of foreign powers, but compelled each registered agent to keep and preserve books of account and other records which he was required to disclose under regulations prescribed by the Attorney General.

As to procurement statutes, Congress, in connection with a 1934 enactment directed against excessive profit-making or collusive bidding in connection with naval construction contracts, required contractors to agree, as a condition of receiving a navy contract, to submit reports which would show conformance or non-conformance with the provisions of the Act. The Second War Powers Act of 1942 followed up the grant of power to exact priorities with a section entitling the President to obtain a wide variety of information from any persons holding defense contracts. Contractors were required to keep accurate records in readiness for whatever accounting the President might eventually request.

Authorization for the Conduct or Study of Experiments: The Tennessee Valley Authority Act authorized the T.V.A. to establish the physical plants necessary to undertake experiments for the production of nitrogen products for military and agricultural uses. Such experiments were to emphasize both economy and high standards of efficiency. A 1938 statute authorizing the construction of naval vessels included provision for the construction of experimental vessels and the construction of a rigid airship of American design and American construction. Implementing the latter, appropriations were authorized for the purpose of rotary-wing and other aircraft research, development, procurement, experimentation, and operation for service testing.

The National Science Foundation was established in 1950 as an independent agency, but within the executive branch of government. Functions of this Foundation include promotion of basic research and education in the sciences, initiation and support of basic scientific research, initiation and support at the request of the Secretary of Defense of specific scientific research activities in connection with matters relating to the national defense, evaluation of scientific research programs undertaken by agencies of the federal government, and correlation of the Foundation’s work with that of private and public research groups or individuals. The functions enumerated do not exhaust the total of those assigned to the above mentioned agency.

In 1952 Congress authorized construction of aeronautical research facilities by the National Advisory Committee for Aeronautics. These facilities were to be used for the effective prosecution of aeronautical research. The Committee could expand certain of its experimental facilities especially since one of the purposes of the Act was to promote the national defense. A similar kind of statute enacted in 1953 created an Advisory Committee on Weather Control. The function of this Committee was to make a complete study and evaluation of public and private experiments in weather control for the purpose of determining the extent to which the United States should experiment with, or engage in, or regulate activities designed to control weather conditions. It was to correlate and evaluate the information derived from experimental activity and to cooperate with the several States in encouraging the intelligent experimentation and the beneficial development of weather modification and control. In carrying out these objectives, the Committee was also required to keep a “weather eye” on seeing to it that harmful and indiscriminate techniques for weather control were not fostered.

GOVERNMENT INVESTIGATIONS, INVENTORIES, AUDITS

Statutory provisions in this category are classifiable as follows: investigations, inventories, audits, etc., (a) incidental to program development or enforcement; (b) precedent to the establishment of policy in certain fields; (c) designed to aid specified agency clientele (private groups); (d) accusatory in nature; (e) military intelligence.

Investigations Incidental to Program Development or Enforcement: The Economy Act passed in the first month of the Roosevelt administration effected reductions in government pensions and salaries with a view to reducing the cost of Federal operations. Salary reductions were to vary with fluctuations in a cost of living index to be ascertained through investigation by government agencies. The Agricultural Adjustment Act of 1933, in setting up an emergency program for the rehabilitation of growers of certain commodities directed the Secretary of Agriculture to make investigations and such reports to the President concerning the program as appeared necessary to its execution. In conjunction with the National Industrial Recovery Act of June 1933 was a 1934 amendment which authorized the President to establish a board or boards to investigate issues, facts, practices, or activities of employers or employees in any controversies arising under section 7 (a) of the statute which were burdening, obstructing, or threatening to burden or obstruct, the free flow of interstate commerce.

The Second War Powers Act required the Secretary of Commerce, under Presidential direction, to make such special investigations and reports of census or statistical matters as might be needed in connection with conduct of the war. The Act imposed a penalty against anyone who refused to answer questions, gave false statements or deliberately neglected to answer questions asked by Departmental subordinates in the conduct of investigations. It also accorded the government the right to inspect the plants and audit the books of defense contractors.

Before presenting to a court a certificate requesting a stay of judicial proceedings on claims for damages caused by naval vessels during the War, the Secretary of the Navy had to conduct an investigation of the case in order to satisfy himself that the issuance of the certificate was necessary. A principal purpose of the Employment Act of 1946 was the establishment of an agency to investigate and report upon the current state of the national economy. The Housing and Rent Act of 1948 specified that the Housing Expediter should make surveys from time to time with a view to decontrolling housing accommodations at the earliest practicable date. The Federal Civil Defense Administrator is charged by the statute creating the Federal Civil Defense Administration with responsibility to prepare national plans and programs, and to request reports on state plans directed at fulfillment of the objectives of the Act.

Policy Development: A number of statutes contain provisions designed to satisfy congressional need for information as an aid in policy-making. A joint resolution of April 1934 directed the Federal Power Commission to investigate the rates charged by private and municipal corporations, prepare a compilation of the respective rate structures and submit the information requested to the Congress as quickly as possible. In making its compilation, the Commission was requested to submit any analysis it had made of the difference in rates charged between the privately owned and publicly owned utilities. The Commission might require reports and testimony from private power officials and was given the right to examine and copy any documentary evidence relative to the sale of electrical energy or its service to consumers by any corporation engaged in the sale of electricity. Collecting accurate and comprehensive information regarding the rates charged for electrical energy and its service to residential, rural, commercial and industrial consumers throughout the United States was directed toward satisfying needs of both the agency and the Congress.

Again in 1934, Congress established a Commission to make an immediate study and survey of aviation and its relation to the United States and to report to Congress its recommendations of a broad policy covering all phases of aviation and its significance to the United States. The Railroad Retirement Board was directed to make specific recommendations for such changes in the retirement system created by the Railroad Retirement Act of 1934 as would assure the adequacy and permanency of the retirement system on the basis of its experience and all information and experience then available. For this purpose the Board was directed from time to time to make investigations and actuarial studies necessary to provide the fullest information practicable for the Board’s report and recommendation. In the third year of World War II a Joint Committee on Organization of Congress was established. The Joint Committee was given the responsibility of preparing a full and complete study of the organization and operation of the Congress together with recommendations for improvement in its organization and operation. Congress sought from the study and report the means for strengthening the Legislative branch of the government by simplifying its operation, improving relations between the Congress and other branches of government, and enabling it to better meet its responsibilities under the Constitution. While some of the more archaic rules under which the Congress operated, indeed to some extent still does operate, were long overdue for a complete overhaul, the more immediate stimulus to action arose from a candid and searching appraisal of Congress’ inability to stem the rising tide of government by the executive. The demands of emergency government of all kinds even before the Japanese attack on Pearl Harbor, tended to reduce the role of the Congress to that of mere ratification of executive action, the latter usually taken without regard to possible Congressional objections. Reorganization of the Congress resulting from the Joint Committee study and report was in response to a growing awareness of the need to improve the functioning of Congress as an organ for control of a wartime executive.

An important recent statute within this category is the Civil Rights Act of 1957. This Act created a Commission on Civil Rights, empowered only to investigate, to study, to appraise and make findings and recommendations. It was not to be a Commission for the enforcement of civil rights. Specifically, the Civil Rights Act of 1957 directed the Commission to:

“(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin, which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;

“(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and

“(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution.”

The Commission was instructed to submit to the President and Congress a comprehensive report of its activities, findings, and recommendations not later than two years from the enactment of the Act. The Commission’s report was submitted to the Congress on September 9, 1959, just in time to win the Commission a two year lease on life.

Many of the statutes in this category are directed at securing information on which to base natural resources or scarce materials policy. In 1947 the President was requested to prepare, through the appropriate departments of the Government, a comprehensive plan for the development of the resources of Alaska, and the expansion and development of the facilities of commerce between the United States and Alaska and within the Territory. The President was requested to have the report ready for the consideration of the second session of the Seventy-fifth Congress thirty-five days after Congress reconvened.

A strategic materials stockpiling statute of 1939 directed the Secretary of the Interior through the Director of the Bureau of Mines and the Director of the Geological Survey to make scientific, technological, and economic investigations concerning the extent and mode of occurrence, the development, mining, of ores and other mineral substances found in the United States which were considered essential to the common defense or the industrial needs of the United States. Preparatory to enacting definitive post-war legislation establishing United States policy with regard to the domestic rubber-producing industry, Congress in 1947 provided for the conduct of a thorough study of the field. Under the Rubber Producing Facilities Disposal Act of 1953 the Rubber Producing Facilities Disposal Commission was created and granted access to all available information concerning the Government-owned rubber-producing facilities in the possession of any department, agency, officer, Government corporation, or instrumentality of the United States concerned with Government-owned rubber-producing facilities. Included in the data it was required to furnish the Congress was an inventory report concerning the Government’s current stocks of synthetic rubber and its component materials.

Endeavoring to expand production of abaca within the Western Hemisphere, Congress in 1950 authorized such surveys and research as were necessary or desirable to obtain the best available land in the Western Hemisphere for abaca production.

Information-Gathering For the Aid of Agency Clientele: In 1938 Congress set up the Mediterranean Fruit Fly Board to conduct a complete investigation and survey of all losses sustained by growers and farmers in the State of Florida resulting from the campaign to eradicate the Mediterranean fruit fly within the State. It carefully stipulated that the Board’s report did not bind Congress legally or morally to grant relief to the affected farmers.

Like the farmer, the small businessman receives his full share of congressional consideration. For the sake of the nation and the small businessman, the Small Business Concerns Mobilization Act of June 1942 sought to integrate him into the war effort. It created the Smaller War Plants Corporation and included among its functions that of making studies with respect to the means by which small business concerns may be supplied with essential raw materials and receive fair and reasonable treatment from all Government departments without interfering with the efficiency of the war-production program. In liquidating the Reconstruction Finance Corporation in July 1953, Congress substituted for it the Small Business Administration, which, among other things, was to obtain information as to methods and practices which Government prime contractors utilize in letting subcontracts and to take action to encourage the letting of subcontracts by prime contractors to small-business concerns. It was also to make a complete inventory of all productive facilities of small-business concerns which could be used for war or defense production, or to arrange for the inventory to be made by any other governmental agency which has the facilities. Further, it could obtain from suppliers of materials information pertaining to the method of filling orders and the bases for allocating their supply, whenever it appeared that any small business is unable to obtain materials from its normal sources for war or defense production. And it was directed to make studies and recommendations to the appropriate federal agencies to insure a fair and equitable share of materials, supplies, and equipment to small-business concerns in order to effectuate war or defense programs. On the other hand, as a condition to securing loans from the Administration, small business concerns must certify to it the names of any attorneys, agents, or other persons engaged by or on behalf of such business enterprise for the purpose of expediting applications made to the Administration for assistance of any sort, and the fees paid or to be paid to any such persons.

Accusatory Action: The two items of legislation involved here--one a joint resolution, the other a concurrent resolution--extended the statute of limitations as it affected “the possible prosecution of any person or persons, military or civilian, connected with the Pearl Harbor catastrophe of December 7, 1941” and created a joint congressional committee to make a full and complete investigation of the facts relating to the events and circumstances leading up to or following the attack made by Japanese armed forces upon Pearl Harbor on December 7, 1941.

Intelligence: The obvious example here is the statute setting up the Central Intelligence Agency in 1947. Its Director was intrusted with responsibility for protecting intelligence sources and methods from unauthorized disclosure and for operating an American intelligence network.

PROTECTING FREEDOM OF COMMUNICATION

It would be distorting the picture not to take into account those instances in which Congress displayed concern lest the control programs it enacted would constrict freedom of communication. Thus while the Price administrator had the power to require licenses of anybody selling commodities regulated by his office, his power did not extend to various media of communication. The selling or distributing of newspapers, periodicals, books or printed or written material, motion pictures or radio time were exempted from the license requirement. The Universal Military Training and Service Act of 1951 permits any member of the Armed Forces to communicate directly or indirectly with any Member of Congress. The statute expressly forbids any one from restricting or preventing a serviceman from writing to his Congressman or Senator. The only limitation placed on such communication is that the subject matter does not violate the law or the regulations necessary to the security and safety of the United States.