Opinions

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Reinstatement of a Federal Judge Following His Service in the Army

The reemployment provisions of the Selective Training and Service Act of 1940 are likely inapplicable to a federal judge.

If the Selective Training and Service Act of 1940 does not run to the benefit of federal judges, Judge William Clark has vacated his judicial office, under the circumstances presented here.

If the Selective Training and Service Act of 1940 does apply, then Judge Clark’s resignation may be immaterial, and the prohibition in the Act of July 31, 1894 against holding a second office probably does not apply.

If Judge Clark’s further judicial services are desired, he should be given a new appointment, subject to Senate confirmation.

Implementation of International Civil Aviation Agreements

If a valid reciprocal arrangement has been entered into between the United States and a foreign country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign aircraft a permit to fly across the United States without landing or a permit to land for non-traffic purposes.

Presidential Appointment of Foreign Agents Without the Consent of the Senate

There are many precedents to sustain the power of the President, without the advice and consent of the Senate, to appoint special agents or personal representatives for the purpose of conducting negotiations or investigations.

Criminal Liability for Newspaper Publication of Naval Secrets

A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part in an upcoming naval battle, and later submitted for publication a newspaper article with information from the dispatch, appears to have violated sections 1(b) and 1(d) of the Espionage Act, but it is doubtful he violated sections 1(a) and 2.

Whether the managing editor and publisher of the newspaper that published the article might also be criminally liable under the Espionage Act depends on their intent and knowledge of the facts.

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.

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