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Mr. McCormack talked about the confines of the amendment. And yet as a result of this amendment you have established the Defense Intelligence Agency, according to your General Counsel, and the Defense Suppy Agency, and you have issued charters to the Defense Communications Agency and the Defense Atomic Support Agency.

Now, what we would like to know at this point is not what you consider to be the things that you can do under this amendment but what you think you can't do under this amendment. Can you tell us what statutory limitations exist with regard to your power as Secretary of Defense and what limitations and restrictions you think are contained in the National Security Act which prohibit you from doing certain things?

Secretary MCNAMARA. Mr. Chairman, this question relates to a legal interpretation of congressional legislation. I will be quite happy to give you my layman's opinion, but I think perhaps

Mr. HARDY. I think that is what we need, Mr. Secretary. Because actually we have been getting so many different views expressed here by all witnesses, that have come up, in my view at least, with one ultimate conclusion, that there isn't anything you can't do in the way in which you are interpreting this amendment.

Now, if there is anything that you can't do I don't think anybody can answer it but you. Now, we have been exploring this with a good many of your subordinates. It has been rather clear to me that a lot. of them won't answer any questions unless they get a clear go-ahead sign from your Office. And it disturbs me. It disturbs me greatly.

So I think the only person that can answer this question is you, because I frankly think that your counsel is providing the answers that you want him to come up with.

Secretary MCNAMARA. Now, Mr. Chairman

Mr. HARDY. I don't mean to suggest that he is doing it in any way that he doesn't think is proper. But often an attorney construes that it is his job to find a way for his client to do what he wants to do. So now if we could just pin this thing down, to try to see just what you think are the limitations-if any-on your authority under this amendment, I think it might be right helpful to us.

Secretary MCNAMARA. Well, Mr. Chairman, this is primarily a question of legal interpretation. I feel I should therefore ask that the answer come from my counsel. But I would like to comment first on two points.

First, you suggest that my General Counsel may be directing his opinions to support my preconceived conclusion. I have worked with lawyers for 20 years now very closely on a wide variety of matters.

I have always used them as the name implies, as counsel. I have never asked them under any circumstances to render other than their own informed legal opinion on the question I direct to them.

I follow that same practice in dealing with Mr. Vance. He can testify to that himself.

He would be doing a disservice to his profession as well as a disservice to himself, were he to operate under any other circumstances. Mr. HARDY. I don't want to be misunderstood on my observations. And knowing a little something about a normal relationship between attorney and his client, I would say this, that it isn't unusual that an attorney undertakes as a primary mission to find out whether there is

a legal way to accomplish what his client wants done. Now, I certainly wouldn't suggest that Mr. Vance has done otherwise. But I would suggest that if you got a notion to do certain things that you want to do and you tell him to find out if that is legal, that is what he would try to find out. Otherwise, he is not worth his salt as a lawyer. That is my point. So there isn't any imputation of anything improper at all by Mr. Vance or any other inference, in seeking to do just exactly that.

But I do think that since we are trying to interpret the intent of Congress and that is apparently a major bone of contention here— that that is something that we need to explore. And we need to try to find out, if we can, just how far we are headed in this direction, because actually under the interpretations, as I said a while ago, that we have had, as I boil them down, there aren't any limits to what your counsel thinks you can do under the McCormack amendment.

So I think it is rather important that we try to find out what you think, if you would be good enough to do it. Whether it is legal or a layman's opinion, it doesn't matter.

Secretary MCNAMARA. How far we are headed, Mr. Chairman, as you suggested you wish to determine, depends on (a) what is legal, and (b) what our intention is within what is legal.

I have stated before, before this committee, that I have no intention of carrying out major consolidations of functions within the Defense Department. But I do have an intention, and I feel I am directed by the Congress, to take action to increase the efficiency of operations of the Department.

I think the specific language used in the act is that—

The Secretary of Defense shall take appropriate steps, including the transfer, reassignment, abolition, and consolidation, to provide in the Department of Defense for more effective, efficient, and economical administration, and operation, and to eliminate duplication.

Wherever we feel that we can operate more effectively by eliminating duplication, we will transfer functions so far as we have the authority to do so to accomplish that action.

I haven't considered all the things I can't do because this can approach infinity, but only the things that I feel I should do in order to accomplish the purposes outlined in the act.

I will comment as a layman on certain clauses, if you wish me to do so. But I feel that they can only be considered layman's comments. And I would wish this morning to have them supplemented by comments of my General Counsel on the proper interpretation of the act. Mr. HARDY. Of course, please feel free to do that, Mr. Secretary, because this committee is particularly concerned with trying to get as complete and informed expressions of judgment and opinions as we can. There certainly is not going to be any inhibition on elaboration or clarification. So we would appreciate your doing that.

Secretary MCNAMARA. I take it that one of the questions in your mind is, do I believe that I have the authority to transfer such a function as the responsibility for research and development of major weapons systems from a service or military department to DSA. My layman's opinion is I do not have that authority.

I believe I do not have that authority because under section 3012(e) it is stated that the Army, for example, is responsible for the preparation of land forces for the effective prosecution of war.

Now, I interpret that to mean that the responsibility for the preparation includes the responsibility for such significant contributions to the preparation as the research and development of major weapons systems.

There are comparable clauses elsewhere in the act. I can't put my finger on them at the moment, but I would be happy to insert them into the record-relating to the Navy and the Air Force.

Mr. HARDY. That, I think, is a very significant point, and I am delighted to have your suggestion in that connection. But Mr. Vance is sitting right there and it might be appropriate to inquire whether he agrees with that, since the responsibility spelled out for the Army in that sort of a situation. Would that prevent the Secretary of Defense from exercising that responsibility?"

Mr. VANCE. I agree with Secretary McNamara that he could not transfer to DSA research and development in connection with major weapons systems.

Mr. BLANDFORD. Could he transfer to any agency, Mr. Vance? Mr. VANCE. Not to any agency. But he could to a military department or service under 202 (c) (4).

Mr. BLANDFORD. Now, we are getting into a distinction without a difference, because that is the point.

In other words, in spite of the language which the Secretary has quoted, which is restrictive insofar as transferring a function from the Army, it is your opinion that the law would permit him to transfer a combat function established as a general mission under the law to another military department?

Mr. VANCE. No. I think you have to go to the precise words, Mr. Blandford.

And the precise words say that—

The Secretary of Defense has the authority to assign or reassign to one or more departments or services the development and operational use of new weapons or weapons systems.

Mr. BLANDFORD. That is right. And that is what Mr. Bates pointed out the very first day we had the hearings here. The Secretary does have that authority. Now, we are talking about research and development going to DSA.

You say that would be confined strictly to a military department? Mr. VANCE. Or service.

Mr. BLANDFORD. Or service.

But you quote as the limitation an authority which limits this authority to the Army.

So you have one provision which you say permits it to go to another military department, but another provision restricts it to the Army insofar as an agency of the Department of Defense is concerned. Is that a reasonable interpretation?

Mr. VANCE. No. I think, Mr. Blandford, I think what Secretary McNamara is pointing out: The Army is by the statutory provision to which he referred given a responsibility for equipping forces for land combat, and as such it has an inherent responsibility for developing the weapons systems which are necessary in that connection.

However, the Congress did see fit to put in a provision in 202 (c) (4) which gives the Secretary the authority with respect to new weapons

systems to assign or reassign them to any one of the military departments or services.

Mr. HARDY. That is only new ones which develop subsequent to that particular time is that what you are saying, Mr. Vance?

Mr. BATES. That is right.

Mr. VANCE. That is correct, sir.

Mr. BATES. So over a period of time he could assign them all to one service, if he saw fit?

Mr. VANCE. No, I believe he could not, because I think you must bear in mind the adjuration that appears at the very start of the National Security Act, that you cannot merge the services.

And I think that if you assigned them all to one military department and thus brought about a merger of the services, that this would be inconsistent with the basic premise of the National Security Act. Mr. BATES. Well, it is a question then of what interpretation you have of what "merger" might mean-how far you can go.

But you can go and leave very little left in any of the services and still be within the purview of the law?

Mr. VANCE. I think that you would have to expect

Mr. BATES. Otherwise, the second section that you read is meaningless.

If the Secretary has the authority to assign any new weapons system, which he has under the 1958 act

Mr. VANCE. That is correct.

Mr. BATES. Then he transfers most of it to one service?

Mr. VANCE. Yes, but still not to bring about a merger of the services, Mr. Bates.

Mr. BATES. Well, for all intents and purposes it could be accomplished without saying so?

Secretary MCNAMARA. Mr. Chairman, may I add a layman's comment to that?

It seems to me as a layman that one must interpret each of the individual sections of the act-and it is a very long text that the act includes in relation to other sections and in relation to the legislative history.

It is perfectly clear from the legislative history and it is clear to me from the introductory paragraphs of the act that it was the intent of the Congress that the military services and departments should not be merged.

Mr. HARDY. But so long as you keep them in a different uniform, you can do anything else and they still won't be merged; is that

correct?

Secretary MCNAMARA. No, sir; I don't believe so.
Mr. HARDY. That is the question.

Secretary MCNAMARA. You asked for my opinion-
Mr. HARDY. Yes, sir.

Secretary MCNAMARA. I am giving it to you. You may not agree with it.

But my opinion is as a layman that it was the intent of the Congress that the military services and departments not be merged and that the legislation had that as a fundamental purpose.

Any action that we are talking to, or we would consider, which would have the effect of merging the departments would be contrary to the intent of the act.

Mr. BATES. How would you draw such a line, Mr. Secretary, as that?

Secretary MCNAMARA. What is essential-what is the essence of a military department? This is the question I asked myself.

The essence of a military department is the major actions it is taking to prepare forces for its specified mission.

What are the major actions? Clearly research and development of new weapons falls in that category.

Now where the new weapon might be used by two departments, I think it is perfectly appropriate that the law provide the Secretary, as it does, with the authority to choose between those departments the one to be given the responsibilities for assigning-for developing a

weapon.

I would use TFX as an illustration. The TFX is a position fighter aircraft that we hope will be used by both the Navy and the Air Force.

Operating under the provisions of this particular section that Mr. Vance read a moment ago, I feel I have the authority to assign the research and development responsibility for that weapon to either the Air Force or the Navy, but not to the Army, because to assign the responsibiliity for research and development to the Army is a move away from a separate Air Force, and this seems to me to be contrary to the intent of Congress.

Now this is the way I interpret it. As I suggest, you may differ with my interpretation, but you have asked for mine and that is it. Mr. BATES. To be specific, then, there is no intent of merging the services? There are no plans along that line?

Secretary MCNAMARA. There are no plans to. And as I suggest, I don't feel I have the authority to do so under the law. Mr. BATES. Let me carry it one step further. Secretary MCNAMARA. No desire to.

And no desire to?

Mr. BATES. So there is nobody contemplating such a merger in the Department of Defense at the present time?

Secretary MCNAMARA. I don't say there is nobody contemplating it. I don't know of anybody contemplating it, and I am not contemplat

ing it.

Mr. BATES. This matter is not even being discussed in the Department?

Secretary MCNAMARA. It is not being discussed with me.

Mr. BATES. Is it being discussed at all, to the best of your knowledge and belief?

Secretary MCNAMARA. It is not.

Mr. BLANDFORD. Mr. Secretary, I think what you said is extremely important from the viewpoint of interpretation of the National Security Act. I don't believe I have ever heard it interpreted in that manner, because this is the first time the question has even been presented to the Secretary of Defense.

Would I be correct, Mr. Vance and Mr. Secretary, in assuming that you consider your authority to transfer or to assign development and operational use of new weapons systems is restricted by the broad categories of roles and missions that are assigned to the Army, Navy, Air Force, and Marine Corps by other provisions of the National Security Act?

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