APPENDIXES

APPENDIX A

1. MEMORANDUM CONCERNING S. 2180, A BILL TO ESTABLISH A U.S. DISARMAMENT AGENCY FOR WORLD PEACE AND SECURITY

The following memorandum is furnished by the Office of the Adviser to the President on Disarmament in response to questions raised during testimony before the Senate Committee on Foreign Relations on S. 2180, a bill to establish a U.S. Disarmament Agency for World Peace and Security, on August 14, 15 and 16. 1. Relationship of the Director to the Secretary of State and the President.—A number of questions were raised during the hearing concerning the basic approach of the bill to the problem of positioning the Director of the Agency within the Government, and establishing his relationship to the President and the Secretary of State.

The most basic functions of the new Agency established by the bill are the conduct, support, and coordination of research for disarmament policy formulation; and the preparation for and direction of U.S. participation in international negotiations in the disarmament field.

These functions cover a wide range of activities and require coordination at the highest level of the Government. For this reason, the Agency performing them should have a wide range of skills and should be located at an authoritative level in the Government. It should have its own statutory authority, and its own budget. Its top officials should be appointed by the President with the advice and consent of the Senate and the Agency should make annual reports to Congress.

Because the President negotiates international agreements through the Secretary of State and because disarmament policies are closely related to the foreign policy of the United States, the head of the Agency should be subject to the direction of the Secretary of State and section 22 of the bill so provides. However, the formulation of the disarmament policy which is to be carried out in an international negotiation involves many considerations which are outside the competence of the Department of State. Moreover, coordination of that policy must take into account the views of officials such as the Secretary of Defense and the Chairman of the AEC who have direct access to the President. Since the President must be the final arbiter in this type of coordination, the Director can perform his role in the coordination function effectively only if he has a similar right of access. For that reason, section 22, the section establishing the position of the Director, also makes him the principal adviser to the President on disarmament matters and provides that he shall act under "the direction of the President" as well as the Secretary of State.

Section 22 thus provides that the Director shall be in charge of the new Agency and that he shall be subject to the direction of both the President and the Secretary of State. It would have been possible to have drafted the bill with this the only reference to the management of the Agency and the role and status of the Director. As a matter of emphasis, however, it was thought advisable, in referring to specific functions of the Agency and the Director, to describe them in the manner in which it was thought they would be performed in practice. In the main, these functions break down into three categories, those of internal administration and operations not directly related to foreign relations, those closely related to the Secretary of State, and those involving coordination with other agencies of Government.

Where the function is one of internal administration or one involving a type of operation in which it is to be expected that the Director would normally act on his own authority, although section 22 would still be applicable, no specific reference is made to his being subject to direction, either by the President or

by the Secretary of State. This includes the authority of the Director to establish bureaus, offices, and divisions within the Agency, granted by section 25; the authority to engage in contract or "in-house" research as provided by sections 31 and 32; the authority to plan or put into effect control systems, as provided by section 36; the authority to appoint employees and perform other administrative functions as provided in paragraph (b) through (e) and (g) through (1) of section 41; the administration of security requirements as provided in section 45.

Where the function is one which is closely related to the functions of the Secretary of State, this fact is emphasized by an express reference to the direction of the Secretary of State. This includes the authority to supervise the negotiation of international disarmament agreements as provided by section 34, and the authority to supply direction to the USIA concerning disarmament activities, as provided by section 35. It also includes the hiring of Foreign Service Reserve and Staff officers under the authority granted under section 42 although in this case, because of the necessity of keeping uniform standards in the Foreign Service Reserve, an express directive from the Secretary of State authorizing the hiring procedures will be required.

Where the function is a coordinating function which involves coordination outside of the Department of State, and hence outside the authority of the Secretary of State to make a final decision, a reference is made to the direction of the President. This includes the coordination of disarmament research, disarmament policy positions, and related activities as provided in sections 31, 33, and 37; and the transfer of powers, duties, activities, and facilities from other agencies into the Disarmament Agency, as provided by section 47. It also includes matters which should be treated on a governmentwide basis, such as the exemption from certain laws relating to Government contracts provided in section 43; the elimination of restrictions on hiring retired military officers provided in section 41(f). The bill also provides for Presidential appointments of the top Agency officials and the advisory committee under sections 22, 23, 24, and 26.

At the hearing, attention was directed to the provision of paragraph (a) of section 41 for the reliance by the Director upon the Department of State for general administrative services "to the extent agreed upon between the Secretary of State and the Director." The suggestion was made that this implied that the Director and the Secretary were of equal status and, hence, that it was inconsistent with the other provisions of the bill which provided that the Director should act under the direction of the Secretary.

This is not an inconsistency, but rather a direct corollary of the status of the Agency as an entity distinct from the Department of State, and of section 49 which authorizes separate appropriations for carrying out the provisions of the act. It is merely a special case in which the authority of the Director relating to internal administration is described in the manner in which it is expected to work out in practice.

In making an arrangement for administrative services, the Director is not performing a function which has a close relationship to the Secretary of State in the field of foreign policy. He is merely taking advantage of the fact that the new Agency is expected to be housed in the State Department Building in close physical and functional proximity to a large and efficient administrative organization for whose services it will be expected to pay. In practical operation the administrative office of the disarmament organization will work out a fair arrangement for reimbursement with the administrative office of the Department of State on the same basis as if the arrangement had been made with some completely separate organization.

2. Missions abroad.-Senators Humphrey and Hickenlooper asked whether it was contemplated that the Agency would have missions abroad such as those of ICA. No such missions are planned.

A disarmament expert might be stationed in the U.S. Embassy in each of a few key capitals such as Moscow and London when circumstances warrant, particularly during times of active negotiation. These advisers would be employed by the Agency but would, of course, be under the supervision of the Ambassador in charge of the Embassy.

It will also be desirable to send Agency personnel abroad for considerable periods of time during international negotiating conferences. Two officers have been stationed in Geneva for more than 2 years in connection with the Nuclear Weapons Test Ban Conference. Many officers and employees have been sent there for lesser periods.

In addition, if a treaty relating to disarmament is successfully negotiated, it might be necessary, depending among other things upon the terms of the treaty, to station employees of the Agency at control posts established to verify compliance with the treaty. This is left for future determination by section 36 of the bill dealing with control systems which authorizes the Director, "as appropriate, to put into effect, direct, or otherwise assume U.S. responsibility for such systems."

3. Research facilities.-Mr. Robert A. Lovett suggested that section 31 of the bill, which describes the fields of research which the Agency would be authorized to sponsor, should contain the caveat of section 32, which states that "the Director shall, to the extent feasible, make full use of available facilities, Government and private ***.

In view of the structure of the bill, this change is not required. The caveat of section 32 would govern the research conducted pursuant to section 31 as the bill is now drawn. Section 32 is entitled "Research Facilities" and would apply to all research conducted by the Agency. The caveat begins: "In carrying out his responsibilities under this Act, the Director shall ***" Research is clearly one of the Director's primary "responsibilities under this Act" and is therefore included within the caveat.

A question was also raised about the Director's use of available personnel as well as available facilities in carrying out the research authorization of section 31. If the facilities or organizations other than the Agency are used under a contract made pursuant to section 31, that contract could and probably would provide for the use of the other organization's personnel as well as its facilities. The kind of research contract contemplated by section 31 is not solely a lease of laboratory space but an arrangement calling for the other Government agency or the private research firm to conduct the research with its own personnel and to report the results to the Director.

Mr. Lovett asked also that it be made clear that the bill would not provide authority for the Agency to take over the Bell Telephone Laboratories or any other private research facility without its consent. The bill does not now provide such authority. Section 32 empowers the Director "to use, with their consent, the facilities of other Government agencies or those of outside organizations." [Emphasis added.] This requirement of consent is intended to apply to all research conducted pursuant to section 31, the general research provision. Indeed, that section by itself provides authority only for such research as may be conducted pursuant to contract or other consensual arrangement.

4. Communication with diplomatic representatives.-Mr. Lovett raised the question whether the Director's authority pursuant to section 34 to communicate with "diplomatic representatives of the United States in this country and abroad" was limited to communications concerning disarmament måtters.

Section 34 states that the Director may consult and communicate with representatives of other nations or of international organizations “for the purpose of conducting negotiations concerning disarmament or for the purpose of exercising any other authority given to the Director by this Act." The authority to communicate with diplomatic representatives is provided only for these purposes. Moreover, the authority can only be exercised "[u]nder the direction of the Secretary of State." For this reason, there does not appear to be any danger of abuse. However, if it is believed necessary, the limiting phrase under (b) could be appropriately transposed so as to modify both subsections (a) and (b), as follows:

"NEGOTIATION OF INTERNATIONAL AGREEMENTS

"SEC. 34. Under the direction of the Secretary of State, the Director, for the purpose of conducting negotiations concerning disarmament or for the purpose of exercising any other authority given to the Director by this Act, may (a) consult and communicate with or direct the consultation and communication with representatives of other nations or of international organizations, and (b) communicate in the name of the Secretary with diplomatic representatives of the United States in this country and abroad."

5. Coordination.-Section 37 of the bill provides for cooperation, coordination and a continuing exchange of information "among affected Government agencies" on disarmament and related matters. Concern was expressed by Senator Humphrey and several witnesses because the section did not specify 74094-61-19

the Department of Defense, NASA, or AEC as "affected Government agencies" and because it did not indicate how disputes would be resolved if they arose. To eliminate this concern, the committee may wish to consider language such as the following:

"COOPERATION AND COORDINATION

"SEC. 37. The Director, in consultation with the Secretary of Defense, the Atomic Energy Commission, the Administrator of the National Aeronautics and Space Administration and other affected Government agencies, shall develop suitable procedures to assure cooperation, consultation, coordination, and a continuing exchange of information among such Government agencies on all significant aspects of United States disarmament policy and related matters, including current and prospective policies, plans, and programs. These procedures shall be subject to the approval of the President. The Director shall keep each of such agencies fully informed, currently and prospectively, of policy decisions, activities, statements, studies, research, and other matters which are within the scope of his responsibilities and are pertinent to their respective responsibilities. Each of such agencies shall keep the Director fully informed, currently and prospectively, of policy decisions, activities, statements, studies, research, and other matters which arise within the scope of their respective responsibilities and are pertinent to his responsibilities. All differences of opinion between the Director and such agencies which cannot be resolved through consultation may be referred for decision to the President by the Director or by such agency."

A pattern of coordination quite similar to this was utilized by Congress in the Economic Cooperation Act of 1948 to govern the relationship between the Secretary of State and the ECA Director (22 U.S.C. sec. 1503 (a) (1946 ed. Supp. II)).

6. Conflict of interest laws and "without-compensation" employees.—Mr. Lovett indicated that the authority to hire "without-compensation" employees under section 41(e) should be used very sparingly in view of the resulting waiver of the conflict-of-interest laws pursuant to section 44. Section 41(e) gives this authority only to the Director, but he may delegate it pursuant to section 41(k). There is not intention that this authority be delegated below the level of Deputy Director. Thus, either the Director or the Deputy Director would personally sign the papers authorizing the employment of every without compensation employee.

7. Security provisions.—Mr. Lovett expressed concern about the need for strict personnel security investigations in order to assure proper qualifications for the Agency's personnel. He did not suggest that the language of the pertinent provision, section 45, be tightened.

Section 45 (a) provides authority for personnel security investigations of the Agency's "officers, employees, consultants, persons detailed from other Government agencies, and its contractors and subcontractors and their officers and employees ***” If any such investigation develops any data "reflecting that the individual who is the subject thereof is of questionable loyalty, the matter shall be referred to the Federal Bureau of Investigation * added.]

[Emphasis

The bill thus requires FBI investigations of every employee whose initial se curity check develops information indicating questionable loyalty. The bill does not require an initial investigation of every employee. However, it is the present practice of the U.S. Disarmament Administration to require a full field background investigation for every employee and this practice will be continued by the new Agency.

This and the requirement of Senate confirmation of the key officers of the Agency provides ample assurance as to the qualifications of its employees. Sections 22, 23, and 24 provide that the top six executives of the Agency shall be appointed by the President by and with the advice and consent of the Senate. Through the confirmation procedure, the Senate can assure itself that these executives are men of loyalty and integrity who would not be disposed to select as employees for the Agency persons who lacked suitable qualifications.

8. Transfer of functions.-Concern about the breadth of section 47 governing transfer of functions, duties, funds, and personnel to the new Agency was expressed by Mr. Lovett and Mr. Gates.