4. For the purposes of this subpart—

(a) Delegation of authority to Secretary-The Secretary may from time to time take action to reduce, eliminate or reimpose the rate of additional duty herein or to establish exemption therefrom, either generally or with respect to an article which he may specify either generally or as the product of a particular country, if he determines that such action is consistent with safeguarding the balance of payments position of the United States.

(b) Publication of Secretary's actions-All actions taken by the Secretary hereunder shall be in the form of modifications of this subpart published in the Federal Register. Any action reimposing the additional duties on an article exempted therefrom by the Secretary shall be effective only with respect to articles entered on and after the date of publication of the action in the Federal Register.

(c) Authority to prescribe rules and regulations-The Secretary is authorized to prescribe such rules and regulations as he determines to be necessary or appropriate to carry out the provisions of this subpart. 5. Articles exempt from the additional duties—In accordance with determinations made by the Secretary in accordance with headnote 4(a), the following described articles are exempt from the provisions of this subpart:

D. This Proclamation shall be effective 12:01 a.m., August 16, 1971. IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of August in the year of our Lord nineteen hundred and seventy-one, and of the Independence of the United States of America the one hundred and ninety-sixth.

RICHARD NIXON

Chapter III

EXECUTIVE DIRECTIVES

IN TIME OF WAR OR ARMED HOSTILITIES

It would go far beyond the scope of this report to discuss the types and manner of issuance of all Executive Orders used in time of war or armed hostilities. Nevertheless, the overwhelming importance of this area deserves some study, for the consequences of wartime orders are especially momentous, the range of executive wartime powers especially great, and their effects often persist long after hostilities may have ceased. Moreover, the need for secrecy, a necessary part of wars, obfuscates the already shadowy process of executive decisionmaking, and makes it all the more important that the decisionmaking process be understood.

Nearly all of the documents presented here fall into one of three classes: a small number of historical interest dating back to the 19th century; a selection of World War II orders; and various decisions relating to the Southeast Asian War. The historical documents are of interest because they illustrate some of the kinds of powers relied upon by Presidents from the very earliest days of the Republic. They are all in the form of Proclamations and appear to be designed to give notice of Presidential policy and declare an intention to follow it through. If and when actual orders were issued to implement these policies, they presumably took a variety of forms. President Kennedy's Proclamation declaring the arms blockade of Cuba of October 1962 both asserts a policy and orders its implementation, but in most respects it is strikingly similar to the much earlier documents in form and in indicating a presidential response to a relatively isolated incident of threatened hostilities.

In time of war, an enormous volume of presidential commands of both a military and civilian nature are issued. The diversity of subject matter of the documents from World War II is included here to convey some impression of the remarkable range of such commands. Their diversity of format is a striking illustration of the randomness which—as noted elsewhere in this report-tends to characterize the issuance of executive decisions generally. Thus, a prescription for controlling the Boston Maritime Area is incorporated in a formal Proclamation; the infamous order (E.O. 9066) which permitted establishment of internment camps for Americans of Japanese origin or ancestry is an Executive Order; and military commissions for the trial of war crimes are set up by a "Military Order." It is a matter of sheer conjecture why any of these decisions should have been incorporated in one particular format rather than one of the others.

The World War II orders and the Cuban arms blockade proclamation were all issued pursuant to statute or congressional resolution and were all published. Not so the documents printed in this study dealing with the Southeast Asian War, most of which are from the "Pentagon Papers." Wartime orders undoubtedly cover a spectrum from the simplest internal directives of the Executive or the military to the most public of proclamations. By their very nature many of those orders are classified and properly so. But Congress should have had some access to these directives under appropriate security arrangements. The Federal Register has provision for classified orders. Determining exactly where the line must fall between those orders which must cite legal authority and should be published in the Federal Register, and those which need not because they are of a purely intrabureaucratic nature is a very delicate question demanding discretion. The Southeast Asian War documents demonstrate that the failure to give legal notice of vital decisions can have the most disastrous consequences.

The Pentagon Papers reveal that decisionmaking procedures were devised whereby thousands of troops were put into hostilities and the most awesome technical military power in history unleashed without the knowledge or approval of the Legislature, the press or the general public. To observe in hindsight that the results were contrary to the national interest does not resolve the delicate question of what decisions should be recorded and subjected to legal review and which because of their relative unimportance need not. At the very least, the Pentagon Papers suggest that there is a need for statutory guidelines for procedures to require the accountability for all important Executive decisions.

Further observations may be made about the format of these orders. The most important policy papers were designated with the cumbersome and euphemistic title of "National Security Action Memoranda," or its equally cumbersome acronym, "NSAM." (In the Nixon administration this has for some reason been altered to "National Security Directive Memoranda".) Given their secrecy and the virtually certain compliance of the parties to whom they were addressed, it is not surprising that they do not cite authority or adopt the rigidly formal style of Executive Orders or proclamations. To judge by the numbering system, there have been many hundreds of such "NSAM's" and "NSDM's." More specific and urgent orders appear to have been sent directly to officials in the field in the form of cables or telephone calls. It should also be observed that many of the Southeast Asian War orders were issued in the name of presidential subordinates. Many of these undoubtedly represent valid and necessary delegations of Presidential authority. Many others, however, were probably expressly approved by the President although the documents may not show this approval. One of the best examples of the latter is General Wheeler's memorandum to then Secretary of Defense Melvin Laird asking authorization for continued secret bombing of Cambodia. The approval is initialed by Laird, but President Nixon has subsequently acknowledged that he personally authorized this policy. The difficulty entailed in eliciting that acknowledgement-or even Laird's acknowledgement of his approval expressly in writing-argues for much more clearly

delineated decisionmaking procedures. That ultimate responsibility for an order of such significance could not be immediately ascertained is a cause for great concern.

Lastly, there is included the text of President Nixon's radio and television address announcing the invasion of Cambodia. Whatever the merits of that decision, this statement did at least make clear the nature of an important decision being made and the responsibility for it. Although the decision cited no specific authority and its legality may be questioned, failure to require legal justification for what may have been an illegal use of power can in this case only be attributed to congressional and public inaction, and not to their lack of awareness of what was actually being done. After long debate, the Cooper-Church amendment restricted U.S. military activity in Cambodia. It is a distressing comment on the nature of Presidential communications in our time, that television addresses, and sometimes even press conferences, have become the preferred instruments used to issue decisions of great moment.

Proclamation-July 2, 1807

OFFENCES COMMITTED BY BRITISH ARMED VESSELS

By the President of the United States

A Proclamation

DURING the wars which, for some time, have unhappily prevailed among the powers of Europe, the United States of America, firm in their principles of peace, have endeavored by justice, by a regular discharge of all their national and social duties, and by every friendly office their situation has admitted, to maintain with all the belligerents their accustomed relations of friendship, hospitality, and commercial intercourse; taking no part in the questions which animate these powers against each other, nor permitting themselves to entertain a wish but for the restoration of general peace, they have observed with good faith the neutrality they assumed, and they believe that no instance of a departure from its duties can be justly imputed to them by any nation. A free use of their harbors and waters, the means of refitting and of refreshment, of succor to their sick and suffering, have, at all times, and on equal principles, been extended to all, and this too, amidst a constant recurrence of acts of insubordination to the laws, of violence to the persons, and of trespasses on the property of our citizens, committed by officers of one of the belligerent parties received among us. In truth, these abuses of the laws of hospitality have, with few exceptions, become habitual to the commanders of the British armed vessels hovering on our coasts, and frequenting our harbors. They have been the subject of repeated representations to their government. Assurances have been given that proper orders should restrain them within the limit of the rights and of the respect due to a friendly nation; but those orders and assurances have been without effect; no instance of punishment for past wrongs has taken place; at length a deed, transcending all we have hitherto seen or suffered, brings the

public sensibility to a serious crisis, and our forbearance to a necessary pause. A frigate of the United States, trusting to a state of peace, and leaving her harbor on a distant service, has been surprised and attacked by a British vessel of superior force, one of a squadron then lying in our waters and covering the transaction, and has been disabled from service, with the loss of a number of men killed and wounded. This enormity was not only without provocation or justifiable cause, but was committed with the avowed purpose of taking by force, from a ship of war of the United States, a part of her crew; and that no circumstance might be wanting to mark its character, it had been previously ascertained that the seamen demanded were native citizens of the United States. Having effected her purpose, she returned to anchor with her squadron within our jurisdiction. Hospitality, under such circumstances, ceases to be a duty; and a continuance of it, with such uncontrolled abuses, would tend only, by multiplying injuries and irritations, to bring on a rupture between the two nations. This extreme resort is equally opposed to the interests of both, as it is to assurances of the most friendly dispositions on the part of the British government, in the midst of which this outrage has been committed. In this light, the subject cannot but present itself to that government, and strengthen the motives to an honorable reparation of the wrong which has been done, and to that effectual control of its naval commanders, which alone can justify the government of the United States in the exercise of those hospitalities it is now constrained to discontinue.

In consideration of these circumstances, and of the right of every nation to regulate its own police, to provide for its peace and for the safety of its citizens, and consequently to refuse the admission of armed vessels into its harbors or waters, either in such numbers, or of such descriptions, as are inconsistent with these, or with the maintenance of the authority of the laws, I have thought proper, in pursuance of the authorities specially given by law, to issue this my Proclamation, hereby requiring all armed vessels bearing commissions under the government of Great Britain, now within the harbors or waters of the United States, immediately, and without any delay, to depart from the same, and interdicting the entrance of all the said harbors and waters to the said armed vessels, and to all others bearing commissions under the authority of the British government.

And if the said vessels, or any of them, shall fail to depart as aforesaid, or if they or any others, so interdicted, shall hereafter enter the harbors or waters aforesaid, I do in that case forbid all intercourse with them, or any of them, their officers or crews, and do prohibit all supplies and aid from being furnished to them or any of them.

And I do declare and make known, that if any person from, or within the jurisdictional limits of the United States, shall afford any aid to any such vessel, contrary to the prohibition contained in this proclamation, either in repairing any such vessel, or in furnishing her, her officers or crew, with supplies of any kind, or in any manner whatsoever; or if any pilot shall assist in navigating any of the said armed vessels, unless it be for the purpose of carrying them, in the first instance, beyond the limits and jurisdiction of the United States, or unless it be in the case of a vessel forced by distress, or charged with