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Title Headnotes
Trials of Newspaper Personnel Accused of Disclosing Naval Secrets

It is probable that the newspaper personnel accused of violating the Espionage Act by disclosing naval secrets can each be tried in any district in which the newspaper containing the secrets was received by a subscriber or newsstand.

The newspaper personnel would be entitled to separate trials unless a conspiracy to violate the Espionage Act can be shown.

Senatorial Courtesy

The custom known as “senatorial courtesy,” whereby certain nominations to federal office have been objected to by an individual senator on the ground that the person nominated is not acceptable to him, appears recently to have been limited to local offices of the federal government.

Removal of Japanese Aliens and Citizens From Hawaii to the United States

Japanese who are aliens can be brought to the continental United States from Hawaii and interned under the provisions of 50 U.S.C. § 21. This statute, however, is probably not applicable to the Japanese who are American citizens.

Although not free from doubt, an argument can be made for removing Japanese who are American citizens from Hawaii to a restricted zone in the United States on grounds of military necessity.

In view of the changed conditions of modern warfare, the Supreme Court would likely follow the views of the dissenting justices in Ex parte Milligan, sustaining a declaration of martial law in places outside the zone of active military operations upon a showing of military necessity for such action. From the nature and purpose of martial law, it would seem to be properly applicable to particular areas rather than to particular persons.

Presidential Control of Wireless and Cable Information Leaving the United States

The President has authority under the Communications Act of 1934 to control any radio station so as to prevent the transmission from the United States of any message, or part thereof, inimical to the national security and foreign policy of the nation. Specific emergency powers like those granted over radio are not contained in the Communications Act, or elsewhere, with respect to cables. But should the President as Commander in Chief and under his other constitutional powers deem such action essential to the protection of the armed forces or the national security, or the protection of shipping, in a time of unlimited national emergency, he could exercise similar control through the Army or Navy over the transmission by cable of messages from the United States.

A great deal can be done by the President with respect to censorship of second, third, and fourth class mail; but in view of the protection which the existing statutes afford to sealed first class mail, the problem there is a difficult one, and it is still being studied.

Wiretapping by Members of the Naval Intelligence Service

In this letter, Attorney General Jackson advises the Secretary of the Navy not to approve and adopt the position taken by the Judge Advocate General of the Navy that records may legally be made of private communications sent or received by use of telephone facilities controlled by the Navy, with a view to the use of such records in prosecutions involving espionage, sabotage, and subversive activities.

Jurisdiction and Procedure of the Office of the Assistant Solicitor General

This memorandum summarizes the authorities and internal operating rules for the Office of the Assistant Solicitor General, the predecessor entity within the Department of Justice to the Office of Legal Counsel. Although the litigation functions have largely been shifted to other components, many of the other practices and procedures described in this memorandum (in particular, preparation of opinions and review of executive orders) remain in place to the present day.

Presidential Authority to Order the Removal of the Original Engrossed Constitution From the Library of Congress

The custody of the original engrossed Constitution of the United States is now vested by statute in the Library of Congress, and no statute authorizes the President to interfere with that custody or to prescribe rules governing it. Therefore, an executive order authorizing the removal of the Constitution from the Library of Congress could neither compel such removal nor make it legal.

Presidential Appearance as a Character Witness

Apparently there is no precedent for a President to appear as a character witness in a civil, criminal, or other kind of legal proceeding.

The President’s Power in the Field of Foreign Relations

The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce.

The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion.

The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict.

Presidential Authority to Direct Departments and Agencies to Withhold Expenditures From Appropriations Made

Neither the Economy Act of 1933 nor any other statute authorizes the President to direct departments and agencies, either on a percentum basis or with reference to specific items, to withhold expenditures from appropriations made.

In the absence of legislative sanction, an executive order withholding expenditures from appropriations made would not be binding on the disbursing officers in the event that a department head or other authorized official should desire funds from the amount ordered to be withheld.

The President may request or direct the heads of the departments and agencies to attempt to effect such savings as may be possible without violation of a duty prescribed by law.


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