B-143777, DEC. 8, 1960

B-143777, DEC. 8, 1960

TO THE SECRETARY OF STATE:

BY LETTER OF NOVEMBER 17, 1960, WE ADVISED YOU THAT THE CHAIRMAN OF THE FOREIGN OPERATIONS AND MONETARY AFFAIRS SUBCOMMITTEE OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS HAD REFERRED TO US FOR APPROPRIATE CONSIDERATION THE FAILURE OF THE DEPARTMENT OF STATE TO FURNISH TO THE SUBCOMMITTEE CERTAIN DOCUMENTS AND RECORDS OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER.

THE DOCUMENTS IN QUESTION WERE SPECIFICALLY REQUESTED BY THE CHAIRMAN OF THE SUBCOMMITTEE IN HIS LETTER TO YOU OF OCTOBER 31, 1960. AS OF NOVEMBER 17, THE DOCUMENTS HAD NOT BEEN FURNISHED NOTWITHSTANDING A VERBAL REQUEST OF THE CHAIRMAN OF THE SUBCOMMITTEE MADE ON NOVEMBER 10 TO MR. PHILANDER CLAXTON, OFFICE OF CONGRESSIONAL LIAISON, DEPARTMENT OF STATE, THAT SUCH DOCUMENTS BE MADE AVAILABLE TO THE SUBCOMMITTEE BY NOVEMBER 14, 1960. AND AN EXAMINATION OF THE TRANSCRIPT OF TESTIMONY GIVEN BY MR. CLAXTON BEFORE THE SUBCOMMITTEE ON NOVEMBER 14, IN EXECUTIVE SESSION, INDICATED THERE WAS A POSSIBILITY THAT SOME OF THE DOCUMENTS MIGHT NOT BE FURNISHED. IN VIEW OF THE PROVISIONS OF SECTION 533A (D) OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, 22 U.S.C. 1793A (D), WHICH AUTHORIZE THE EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER TO BE CHARGED TO PROGRAM FUNDS, BUT ONLY SO LONG AS REQUESTS FOR INFORMATION SUCH AS WAS INVOLVED HERE ARE COMPLIED WITH, WE REQUESTED THAT YOU ADVISE US AS TO YOUR INTENTIONS CONCERNING PRODUCTION OF THE DOCUMENTS REQUESTED BY THE SUBCOMMITTEE AND OF ANY VIEWS YOU MIGHT WISH TO OFFER IN THE MATTER OF A DECISION TO BE TAKEN BY THIS OFFICE WITH RESPECT TO THE FUTURE AVAILABILITY OF FUNDS FOR EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER.

IN YOUR REPLY, DATED NOVEMBER 22, 1960, YOU POINTED OUT THAT THE DOCUMENTS REQUESTED IN THE SUBCOMMITTEE CHAIRMAN'S LETTER OF OCTOBER 31 RELATED TO THE UNITED STATES ECONOMIC AID PROGRAMS IN SEVEN NAMED COUNTRIES AND AMONG THE DOCUMENTS LISTED, YOU CONSIDERED THE FOLLOWING TO BE ,DOCUMENTS AND RECORDS OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER: (1) INSPECTOR GENERAL INVESTIGATIVE FILES ON RICHARD KLUGH AND SIDNEY SPRINGER, (2) INVESTIGATIVE REPORT ON FORMER USOM DIRECTOR JOHN R. NEALE, AND (3) INSPECTOR GENERAL REPORTS ON BRAZIL, URUGUAY, ARGENTINA, CHILE, BOLIVIA, PERU, AND COLUMBIA. OTHER DOCUMENTS LISTED CONSISTED PRINCIPALLY OF THE PERSONNEL FILE ON MR. NEALEAND VARIOUS TELEGRAMS AND MESSAGES.

YOU POINT OUT FURTHER THAT WHILE THE SUBCOMMITTEE CHAIRMAN'S LETTER OF OCTOBER 31 DOES NOT SPECIFY EXACTLY WHAT REPORTS ARE INTENDED TO BE COVERED BY THE TERM "INSPECTOR GENERAL REPORTS" USED WITH REFERENCE TO THE SEVEN COUNTRIES NAMED, YOU UNDERSTAND THAT TWO KINDS OF REPORTS WERE INTENDED TO BE INCLUDED--- EVALUATION REPORTS AND THOSE CONTAINING INVESTIGATIVE MATERIAL DEVELOPED IN THE COURSE OF INVESTIGATIONS INTO ALLEGATIONS OF PERSONAL MISCONDUCT OR PERSONAL OR OFFICIAL IRREGULARITIES IN CONNECTION WITH THE AIR PROGRAMS IN THE SEVEN NAMED COUNTRIES. WITH RESPECT TO EVALUATION REPORTS YOU STATE THAT THE OFFICE OF INSPECTOR GENERAL AND COMPTROLLER HAD PREPARED, AND HAD IN ITS CUSTODY, ONLY ONE SUCH REPORT; THAT EVALUATION REPORTS PREPARED PRIOR TO THE ESTABLISHMENT OF THAT OFFICE WERE PREPARED BY AND IN THE CUSTODY OF ICA. AND YOU STATE THAT THE FACTS SET FORTH IN THE ONE SUCH REPORT PREPARED BY THE OFFICE OF INSPECTOR GENERAL AND COMPTROLLER WERE FURNISHED THE SUBCOMMITTEE BUT THAT THE RECOMMENDATIONS CONTAINED THEREIN WERE NOT FURNISHED, IN COMPLIANCE WITH A POLICY DETERMINATION BY THE PRESIDENT. CONCERNING REPORTS CONTAINING INVESTIGATIVE MATERIAL YOUR POSITION IS THAT INVESTIGATIVE FILES AND REPORTS ARE CONFIDENTIAL DOCUMENTS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THAT CONGRESSIONAL OR PUBLIC ACCESS TO THEM IS NOT IN THE PUBLIC INTEREST; THAT SUCH FILES AND REPORTS CONSTITUTE A TYPE OF MATERIAL WHICH TRADITIONALLY HAS NOT BEEN MADE AVAILABLE BY THE EXECUTIVE BRANCH TO CONGRESSIONAL COMMITTEES. WE UNDERSTAND THE PRESIDENT HAS CERTIFIED THAT HE HAS FORBIDDEN THE FURNISHING OF THE DOCUMENTS REQUESTED AND WITHHELD.

SECTION 533A (D) OF THE MUTUAL SECURITY ACT OF 1954 AS ADDED BY SECTION 401 (H) OF THE MUTUAL SECURITY ACT OF 1959, 73 STAT. 253, PROVIDES THAT:

"EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER WITH RESPECT TO PROGRAMS UNDER THIS ACT SHALL BE CHARGED TO THE APPROPRIATIONS MADE TO CARRY OUT SUCH PROGRAMS: PROVIDED, THAT ALL DOCUMENTS, PAPERS, COMMUNICATIONS, AUDITS, REVIEWS, FINDINGS, RECOMMENDATIONS, REPORTS, AND OTHER MATERIAL WHICH RELATE TO THE OPERATION OR ACTIVITIES OF THE OFFICE OF INSPECTOR GENERAL AND COMPTROLLER SHALL BE FURNISHED TO THE GENERAL ACCOUNTING OFFICE AND TO ANY COMMITTEE OF THE CONGRESS, OR ANY DULY AUTHORIZED SUBCOMMITTEE THEREOF, CHARGED WITH CONSIDERING LEGISLATION OR APPROPRIATION FOR, OR EXPENDITURES OF, SUCH OFFICE, UPON REQUEST OF THE GENERAL ACCOUNTING OFFICE OR SUCH COMMITTEE OR SUBCOMMITTEE AS THE CASE MAY BE.'

THERE IS THUS FOR CONSIDERATION THE QUESTION AS TO WHAT EFFECT FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE PROVISO CONTAINED IN SECTION 533A (D) HAS WITH RESPECT TO THE AVAILABILITY OF FUNDS FOR EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER. THAT IS, DOES FAILURE TO COMPLY AUTHORIZE OR REQUIRE A CUTOFF OF FUNDS OTHERWISE AVAILABLE FOR THESE EXPENSES? THE VIEW OF YOUR DEPARTMENT IS THAT A CUTOFF OF FUNDS IS NOT AUTHORIZED BY SECTION 533A (D) FOR THREE REASONS: (1) THE LANGUAGE OF THE SECTION DOES NOT CLEARLY PROVIDE FOR SUCH A CUTOFF AND SUCH A REQUIREMENT SHOULD NOT BE IMPLIED OR INSERTED BY INTERPRETATION, IN VIEW OF THE CONSEQUENCES WHICH WOULD ENSUE; (2) THE ACTION OF CONGRESS IN ADOPTING CLEAR AND UNEQUIVOCAL PROVISIONS FOR A CUTOFF OF FUNDS IN SUBSEQUENT APPROPRIATION ACTS, ONE OF WHICH RELATES TO THE SAME OFFICE, ARGUES STRONGLY AGAINST SUCH AN INTERPRETATION; AND (3) SUCH AN INTERPRETATION MUST ALSO BE REJECTED BECAUSE IT IS INCONSISTENT WITH THE BASIC RULE THAT COURTS ADOPT AN INTERPRETATION OF A FEDERAL STATUTE WHICH AVOIDS CONSTITUTIONAL QUESTIONS, RATHER THAN ONE WHICH RAISES SERIOUS CONSTITUTIONAL DOUBTS.

SECTION 101 (D) OF THE MUTUAL SECURITY AND RELATED AGENCIES APPROPRIATION ACT, 1961, 74 STAT. 776, PROVIDES THAT:

"/D) NONE OF THE FUNDS HEREIN APPROPRIATED SHALL BE USED TO CARRY OUT ANY PROVISION OF CHAPTERS II, III, OR IV OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, IN ANY COUNTRY OR WITH RESPECT TO ANY PROJECT OR ACTIVITY, AFTER THE EXPIRATION OF THE THIRTY-FIVE DAY PERIOD WHICH BEGINS ON THE DATE THE GENERAL ACCOUNTING OFFICE OR ANY COMMITTEE OF THE CONGRESS, OR ANY DULY AUTHORIZED SUBCOMMITTEE THEREOF, CHARGED WITH CONSIDERING MUTUAL SECURITY LEGISLATION, APPROPRIATIONS, OR EXPENDITURES, HAS DELIVERED TO THE OFFICE OF THE HEAD OF ANY DEPARTMENT OR AGENCY CARRYING OUT SUCH PROVISION, A WRITTEN REQUEST THAT IT BE FURNISHED ANY DOCUMENT, PAPER, COMMUNICATION, AUDIT, REVIEW, FINDING, RECOMMENDATION, REPORT, OR OTHER MATERIAL IN ITS CUSTODY OR CONTROL RELATING TO THE ADMINISTRATION OF SUCH PROVISION IN SUCH COUNTRY OR WITH RESPECT TO SUCH PROJECT OR ACTIVITY, UNLESS AND UNTIL THERE HAS BEEN FURNISHED TO THE GENERAL ACCOUNTING OFFICE, OR TO SUCH COMMITTEE OR SUBCOMMITTEE, AS THE CASE MAY BE, (1) THE DOCUMENT, PAPER, COMMUNICATION, AUDIT, REVIEW, FINDING, RECOMMENDATION, REPORT OR OTHER MATERIAL SO REQUESTED, OR (2) A CERTIFICATION BY THE PRESIDENT THAT HE HAS FORBIDDEN THE FURNISHING THEREOF PURSUANT TO SUCH REQUEST, AND HIS REASON FOR SO DOING.'

AS POINTED OUT IN THE MEMORANDUM ACCOMPANYING YOUR LETTER OF NOVEMBER 22, THIS SECTION CLEARLY REQUIRES A CUTOFF OF FUNDS AND BY ITS TERMS WOULD APPEAR TO INCLUDE THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER. BUT WHILE SECTION 101 (D) PROVIDES FOR THE ALTERNATIVE OF A PRESIDENTIAL CERTIFICATION, SECTION 533A (D) DOES NOT. THERE IS NO ROOM FOR DOUBT AS TO THE QUESTION OF WHETHER THE TERMS OF SECTION 533A (D) REQUIRE A CUTOFF OF FUNDS UPON FAILURE TO FURNISH INFORMATION REQUESTED. THE MORE DIFFICULT QUESTION POSED, HOWEVER, IS WHETHER THE PROVISION FOR CERTIFICATION BY THE PRESIDENT CONTAINED IN THE APPROPRIATION ACT MUST BE READ INTO SECTION 533A (D) OR, IN EFFECT, WHETHER THE ENACTMENT OF THE APPROPRIATION LIMITATION OPERATES TO SUSPEND THE PROVISIONS OF SECTION 533A (D) DURING FISCAL YEAR 1961. WE THINK THE FIRST OF THESE QUESTIONS MUST BE ANSWERED IN THE AFFIRMATIVE AND THE SECOND IN THE NEGATIVE.

YOUR DEPARTMENT'S CONTENTION THAT SECTION 533A (D) DOES NOT PROVIDE FOR A CUTOFF OF FUNDS IS PREMISED UPON THE FACTS THAT THE PROVISO THEREIN MERELY EXPRESSES A STATUTORY REQUIREMENT FOR THE FURNISHING OF INFORMATION BUT DOES NOT IN SPECIFIC TERMS AUTHORIZE A CUTOFF OF FUNDS FOR FAILURE TO FURNISH; THAT THE LEGISLATIVE HISTORY OF THE SECTION IS INCONCLUSIVE BECAUSE, ALTHOUGH NO ONE INDICATED A CONTRARY INTENT, NEITHER DID ANYONE OTHER THAN THE AUTHOR THEREOF EXPRESS THE INTENTION THAT A CUTOFF OF FUNDS WAS BEING PROVIDED FOR; THAT THE SECTION IS TOO IMPRECISE WITH RESPECT TO WHERE REQUESTS FOR INFORMATION MUST BE ADDRESSED, WHETHER THEY MUST BE IN WRITING, AND WHAT AMOUNT OF TIME IS TO BE ALLOWED FOR COMPLIANCE, TO PERMIT OF REASONABLE APPLICATION; AND THAT CONGRESS COULD NOT HAVE INTENDED SO DRASTIC A RESULT AS WOULD ENSUE FROM A CUTOFF.

THE PROVISO IN SECTION 533A (D) LIMITS THE TERMS UPON WHICH FUNDS ARE MADE AVAILABLE FOR EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER. IN OUR OPINION, IT CANNOT BE LOGICALLY MAINTAINED, WHERE SPECIFIC CONDITIONS ARE ATTACHED TO THE CONTINUED AVAILABILITY OF FUNDS, THAT THE CONDITIONS MAY BE IGNORED WITHOUT AFFECTING THE AVAILABILITY OF THOSE FUNDS. TO HOLD OTHERWISE IS TO RENDER THE IMPOSED CONDITIONS MEANINGLESS. AS TO THE DRASTIC EFFECT OF A CUTOFF, THAT ORDINARILY WOULD NOT BE SUFFICIENT REASON FOR CONCLUDING THAT THE ONLY LOGICAL APPLICATION OF A STATUTE WAS NOT THE ONE INTENDED, AND PARTICULARLY WHERE, AS HERE, THE AUTHOR OF THE LANGUAGE OF THE STATUTE EXPLICITLY STATED HIS CONTEMPLATION OF THE DRASTIC EFFECTS NOW DECRIED. AND WITH RESPECT TO THE LACK OF PRECISION IN DETAILING THE CIRCUMSTANCES UNDER WHICH A CUTOFF WAS TO BE EFFECTED, WE DO NOT BELIEVE THAT THIS CONDITION AFFECTS THE VALIDITY OF THE PROVISION.

HAVING CONCLUDED THAT SECTION 533A (D) REQUIRES THAT FUNDS BE CUTOFF WHERE PROPER REQUESTS FOR INFORMATION ARE REFUSED, THERE IS FOR CONSIDERATION THE QUESTION WHETHER SECTION 533A (D) IS IN ANYWAY AFFECTED BY LATER APPROPRIATION ACTS WHICH RELATE GENERALLY TO THE FURNISHING OF INFORMATION BUT DO NOT SPECIFICALLY REFER TO THE CUTOFF PROVISION OF SECTION 533A (D) WITH RESPECT TO THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER. IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT REPEALS OR MODIFICATIONS BY IMPLICATION ARE NOT FAVORED. EQUALLY WELL ESTABLISHED ARE THE RULES THAT TWO STATUTES SHOULD BE CONSTRUED TO GIVE EFFECT TO BOTH INSOFAR AS POSSIBLE AND THAT A LATER STATUTE OF GENERAL APPLICABILITY DOES NOT ABROGATE A PRIOR SPECIFIC STATUTE IN THE ABSENCE OF A CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO HAVE THE LATER STATUTE GOVERN. THE LEGISLATURE IS PRESUMED TO HAVE ENACTED A CONSISTENT BODY OF STATUTES. IN ACCORD WITH THESE PRINCIPLES SUBSEQUENT LEGISLATION IS NOT PRESUMED TO EFFECTUATE A REPEAL OR MODIFICATION OF THE EXISTING LAW IN THE ABSENCE OF THAT EXPRESSED INTENT. IT IS ONLY WHERE A CONSISTENT BODY OF LAWS CANNOT BE MAINTAINED WITHOUT THE ABROGATION OF A PREVIOUS LAW THAT A REPEAL OR MODIFICATION BY IMPLICATION OF PREVIOUS LEGISLATION MAY BE DERIVED. SEE VOL. 1, SUTHERLAND ON STATUTORY CONSTRUCTION, SECTIONS 1922, 2012, 2014 AND 2021.

SUBSEQUENT TO THE ENACTMENT OF SECTION 533A (D), THE CONGRESS IN THE SAME SESSION ENACTED SECTION 111 (D) OF THE MUTUAL SECURITY APPROPRIATION ACT, 1960, 73 STAT. 720. THIS SECTION WAS SUBSTANTIALLY THE SAME AS SECTION 101 (D) OF THE 1961 APPROPRIATION ACT, QUOTED ABOVE, EXCEPT THAT IT WAS DIRECTED EXCLUSIVELY TO REQUESTS FOR INFORMATION FROM THE OFFICE OF THE DIRECTOR OF THE INTERNATIONAL COOPERATION ADMINISTRATION. SENATOR ROBERTSON IN EXPLAINING THE LANGUAGE OF HIS AMENDMENT WHICH WAS SUBSTANTIALLY ENACTED AS SECTION 111 (D) OF THE 1960 APPROPRIATION ACT MADE THE FOLLOWING STATEMENTS:

"MY AMENDMENT IS A LITTLE DIFFERENT. IT PROVIDES, IN THE FIRST PLACE, THAT THE REQUEST MUST BE IN WRITING. IT MUST GO, NOT TO SOME SUBORDINATE OFFICIAL, BUT TO THE DIRECTOR HIMSELF. THE PENALTY WOULD BE NOT TO STOP ALL THE FOREIGN AID PROGRAMS, BUT ONLY THAT IN THE COUNTRY OR IN THE PROJECT UNDER INVESTIGATION.

"IN ADDITION, AND I WISH TO EMPHASIZE THIS, THE AMENDMENT DOES NOT YIELD ONE IOTA OF THE CONSTITUTIONAL RIGHT OF THE CONGRESS TO DEMAND INFORMATION CONCERNING THE HANDLING OF FUNDS IT HAS APPROPRIATED, BUT IT MAKES THIS MUCH OF A CONCESSION TO THE DIFFERENCE OF OPINION BETWEEN CONGRESS AND THE PRESIDENT. "* * * THAT DIFFERENCE IS THIS: IF THE PRESIDENT, IN KEEPING WITH THE WELL ESTABLISHED PRINCIPLE UNDER THE CONSTITUTION OF THE RIGHT OF THE PRESIDENT TO HANDLE FOREIGN POLICY, DECIDES THAT THE DISCLOSURE OF SOME PHASE OF FOREIGN POLICY WOULD BE AGAINST THE PUBLIC INTEREST, HE CAN SO CERTIFY, AND THE CONGRESS WILL NOT BE ABLE TO GET THE INFORMATION. BUT MR. PRESIDENT, IT IS INCONCEIVABLE THAT ANY PRESIDENT WOULD INVOKE THAT PRIVILEGE TO COVER UP INEFFICIENCY OF SOME MINOR OFFICIAL IN SOME COUNTRY IN THE EXPENDITURE OF THE TAXPAYERS' MONEY.

"I SAY WE ARE NOT TRYING TO SETTLE THE CONSTITUTIONAL ISSUE. AT SOME FUTURE TIME WE MAY HAVE TO DO IT, BUT WE ARE NOT TRYING TO DO IT IN THIS BILL. WE ARE TRYING TO ARRIVE AT A WORKING FORMULA WHICH WILL ENABLE CONGRESS TO HAVE PROPER INFORMATION ABOUT A PROGRAM WHICH COSTS ALMOST $4 BILLION A YEAR OF THE TAXPAYERS' MONEY.' 105 CONG.REC. 19256.

A CLOSE READING OF SECTIONS 111 (D) AND 101 (D) AND OF SENATOR ROBERTSON'S REMARKS DISCLOSES THAT THE PROVISION FOR CERTIFICATION BY THE PRESIDENT WAS INCLUDED IN THESE SECTIONS TO PROVIDE A WORKING FORMULA FOR ASSURING THAT CONGRESS WOULD OBTAIN A MAXIMUM AMOUNT OF INFORMATION CONCERNING THE ADMINISTRATION OF ECONOMIC ASSISTANCE PROGRAMS THROUGH THREAT OF CUTOFF, WHILE AT THE SAME TIME PROVIDING A MEANS FOR CONTINUING THOSE PROGRAMS WHERE THE PRESIDENT HIMSELF DETERMINES THAT DISCLOSURE WOULD BE AGAINST THE PUBLIC INTEREST. EACH OF THE SECTIONS SPEAKS OF LIMITING FUNDS WITH RESPECT TO ANY COUNTRY, PROJECT, OR ACTIVITY, WHICH COULD ONLY REFER TO RECIPIENT COUNTRIES AND AID PROJECTS AND ACTIVITIES. AND SENATOR ROBERTSON'S REMARKS CLEARLY SHOW THAT THE PURPOSE FOR AUTHORIZING PRESIDENTIAL CERTIFICATION WAS TO OBVIATE THE NECESSITY FOR CUTTING OFF ASSISTANCE PROGRAMS FOR FAILURE TO FURNISH REQUESTED INFORMATION WHERE FOREIGN POLICY MATTERS ARE INVOLVED. BUT THE CONSIDERATIONS WHICH PROMPTED THE FORMULA FOR ALLOWING FOREIGN AID TO CONTINUE IN THE FACE OF A REFUSAL TO FURNISH INFORMATION ARE NOT AT ALL APPLICABLE TO CONTINUED OPERATION OF THE INSPECTOR GENERAL AND COMPTROLLER'S OFFICE. THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER COULD CEASE TO FUNCTION WITHOUT AT ALL IMPAIRING THE FOREIGN POLICY OF THE UNITED STATES. IT IS NOT IN ANYWAY INCONSISTENT TO HOLD THAT THE CERTIFICATION AUTHORIZED BY THE LATER ENACTMENT TO PROTECT THE FOREIGN POLICY INTERESTS OF THE UNITED STATES IS NOT APPLICABLE SO FAR AS THE UNQUALIFIED CONDITION TO CONTINUED AVAILABILITY OF FUNDS FOR EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER IS CONCERNED. INDEED SECTION 111 (D) WAS DIRECTED SOLELY TO THE INTERNATIONAL COOPERATION ADMINISTRATION AND DID NOT EVEN REACH THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER WHICH WAS ESTABLISHED UNDER SECTION 533A AS A SEPARATE OFFICE IN THE DEPARTMENT OF STATE. AND THAT THE LANGUAGE OF SECTION 111 (D) AS BROADENED IN SECTION 101 (D) WAS NOT INTENDED TO MODIFY THE PROVISIONS OF SECTION 533A (D) IS AMPLY SUPPORTED IN THE FOLLOWING STATEMENTS MADE ON THE FLOOR OF THE HOUSE AUGUST 26, 1960, IN CONNECTION WITH THE LANGUAGE WHICH WAS ENACTED AS SECTION 101 (D):

"MR. HARDY:

"IF THE GAO OR AN APPROPRIATE COMMITTEE OF THE CONGRESS REQUESTS OF THE AGENCY OR AGENCIES ADMINISTERING THE ACT THAT IT BE FURNISHED ALL DOCUMENTS, OR ANY DOCUMENT, RELATING TO A PARTICULAR COUNTRY, THEN THIS LANGUAGE WOULD REQUIRE THAT THE DOCUMENTS BE FURNISHED WITHIN 35 DAYS, OR THAT THE PRESIDENT CERTIFY, WITHIN THE SAME PERIOD, THAT HE HAS FORBIDDEN THE FURNISHING OF THEM AND GIVES HIS REASON THEREFORE.

"IF THE GENTLEMEN WILL YIELD FURTHER, I COMMEND THE COMMITTEE FOR BROADENING THE LANGUAGE. I WANT TO BE SURE THAT REQUESTS FOR SUCH MATERIAL WOULD BE HONORED UNDER THE SAME PROCEDURES AS WERE FOLLOWED LAST YEAR.

"MR. GARY: THERE IS NO QUESTION ABOUT THAT. THIS IS NOT INTENDED TO CHANGE PRESENT PROCEDURE ONE IOTA.

"MR. FORD: FOLLOWING UP THE STATEMENT OF THE GENTLEMAN FROM VIRGINIA (MR. GARY) ON THIS ATTER; AS I UNDERSTAND, WE TOOK THE LANGUAGE WHICH WAS IN THE APPROPRIATION BILL FOR FISCAL YEAR 1960, SECTION 101, AND WE HAVE BROADENED THE COVERAGE TO INCLUDE OTHER AGENCIES. WE HAVE NOT CHANGED THE SUBSTANCE OF THAT PARAGRAPH OR THAT PROVISO. WE HAVE SIMPLY EXTENDED THE COVERAGE.

"MR. GARY: THIS IS CORRECT.

"THERE ARE OTHER AGENCIES HANDLING THE FUNDS IN THIS BILL, THE STATE DEPARTMENT, THE DEVELOPMENT LOAN FUND, AND OTHER AGENCIES. WE EXTENDED THE LANGUAGE OF LAST YEAR TO COVER THOSE AGENCIES, BUT WE DID NOT CHANGE A PARTICLE THE LANGUAGE WITH RESPECT TO THE DOCUMENTS THAT COULD BE REQUESTED.' 106 CONG.REC., AUGUST 26, 1960, P. 16645.

THESE STATEMENTS CLEARLY SHOW THAT THE CHANGE IN LANGUAGE FROM SECTION 111 (D) TO THE LANGUAGE OF SECTION 101 (D) IN THE 1961 APPROPRIATION ACT WAS INTENDED ONLY TO REACH THOSE OTHER AGENCIES ENGAGED IN ADMINISTERING FOREIGN ECONOMIC ASSISTANCE PROGRAMS. THEREFORE, WHILE THE LANGUAGE OF SECTION 101 (D) MIGHT APPEAR, AT FIRST EXAMINATION, TO INCLUDE THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER, APPLYING THE RULES OF STATUTORY CONSTRUCTION REFERRED TO ABOVE AND RELYING UPON THE INTENTION OF THE CONGRESS AS EXPRESSED IN THE DEBATE OF THE MATTER ON THE FLOOR OF THE HOUSE, WE ARE OF THE OPINION THAT THE PROVISION FOR PRESIDENTIAL CERTIFICATION CONTAINED IN SECTION 101 (D) DOES NOT APPLY TO REQUESTS FOR INFORMATION RELATING TO OPERATION OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER.

REGARDING THE CONTENTION THAT THE INTERPRETATION REACHED HERE RAISES SERIOUS CONSTITUTIONAL ISSUES, WHICH SHOULD BE AVOIDED, WE WOULD NOT BE JUSTIFIED IN FAILING TO CARRY OUT A STATUTE ENACTED BY THE CONGRESS IN ORDER TO AVOID THE RAISING OF A CONSTITUTIONAL ISSUE. THE QUESTION OF THE CONSTITUTIONALITY OF A STATUTE IS FOR DECISION BY THE COURTS RATHER THAN BY THIS OFFICE.

ACCORDINGLY, WE MUST ADVISE, THAT SINCE A REQUEST FOR DOCUMENTS OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER WAS MADE BY AN APPROPRIATE SUBCOMMITTEE OF THE CONGRESS AT LEAST AS EARLY AS OCTOBER 31, 1960, AND THE DOCUMENTS REQUESTED HAVE NOT TO DATE BEEN FURNISHED TO THE SUBCOMMITTEE, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT, UNLESS THE DOCUMENTS ARE FURNISHED BY DECEMBER 9, 1960, PROGRAM FUNDS WILL NO LONGER BE AVAILABLE FOR EXPENSES OF THE OFFICE OF THE INSPECTOR GENERAL AND COMPTROLLER, AND ANY SUCH USE OF PROGRAM FUNDS AFTER THAT DATE WILL BE DISALLOWED BY THIS OFFICE. IT IS REQUESTED THAT YOU IMMEDIATELY SO INFORM THE CONCERNED CERTIFYING OFFICERS. THE DECEMBER 9, 1960, DATE HAS BEEN FIXED IN ORDER TO ALLOW TIME TO TAKE THE NECESSARY ADMINISTRATIVE STEPS TO CARRY OUT THIS DECISION.

A COPY OF THIS LETTER IS BEING SENT TO THE PRESIDENT OF THE UNITED STATES, THE DIRECTOR OF THE BUREAU OF THE BUDGET, THE SECRETARY OF THE TREASURY, THE RESPECTIVE CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS, COMMITTEE ON FOREIGN RELATIONS AND COMMITTEE ON GOVERNMENT OPERATIONS OF THE SENATE; AND THE COMMITTEE ON APPROPRIATIONS, COMMITTEE ON FOREIGN AFFAIRS, AND COMMITTEE ON GOVERNMENT OPERATIONS OF THE HOUSE OF REPRESENTATIVES. ALSO, A COPY IS BEING FURNISHED TO THE CHAIRMAN OF THE FOREIGN OPERATIONS AND MONETARY AFFAIRS SUBCOMMITTEE OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS.