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24823969
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National Security Council - Nixon/Thieu Letters (2)
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24823969
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National Security Council - Nixon/Thieu Letters (2)
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This file contains cabinet Meetings.
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Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Vietnam (Republic)
Nixon, Richard M. (Richard Milhous), 1913-1994
Executive privilege (Government information)
Executive-Legislative relations
Treaties
Vietnam War, 1961-1975
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24823969
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1975-08-01
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1975
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1975-05-01
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5
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1975
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The original documents are located in Box 27, folder "National Security Council -
Nixon/Thieu Letters (2)" of the Philip Buchen Files at the Gerald R. Ford Presidential
Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 27 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
Responses Currently Pending:
Primary Responsibility With:
Mansfield (6/2) and Sparkman
NSC (Janka)
(5/6) re: Nixon/Thieu letters
Abzug (5/15, PWB interim 6/9)
Roth (awaiting reply from Miller)
re: Nixon letters on Concorde
Humphrey (5/29) re: Nixon
Roth (awaiting information from
letters on Concorde
FAA)
Moss (5/6, PWB interim 5/16)
Casselman (awaiting reply from
re: Nixon tapes on air bags
Miller)
Guste (5/21, PWB interim 5/31)
Roth (awaiting reply from Miller)
re: Nixon tapes on DDT
GERALD FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
June 4, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THROUGH:
BILL CASSELMAN
BU
FROM:
BARRY ROTH
BR
SUBJECT:
Bipartisan Congressional
Leadership Meeting
It is possible that Senator Mansfield will renew his request for
the Nixon-Thieu correspondence at this evening's meeting.
If so, you should be aware that Monroe Leigh has been asked
by NSC to prepare a position paper for you and NSC with
respect to this request.
The White House response to Senator Sparkman's first letter
was a lengthy one dealing with executive privilege, but it did
not raise any arguments in connection with the litigation
involving the Nixon papers. While the factual situation
surrounding NSC's possession of copies of this correspondence
is complicated, it is still accurate to say that the issue which
the committee has raised in seeking this correspondence of the
Nixon Administration is one of the central issues of the ongoing
litigation. As a result, we are barred from releasing the actual
documents except with the consent of Mr. Nixon or his counsel.
Bill Casselman has spoken to Ray Larroca today, who advises
that his client remains opposed to any such release by this
Administration and would probably challenge our plans to do
so in court.
FORD & BERALD LIBRARY
THE WHITE HOUSE
washington
June 3, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THROUGH:
BILL CASSELMAN
BV.
FROM:
BARRY ROTH
BR
SUBJECT:
Requests for Materials of the
Nixon Administration
In response to your request this morning, attached is a compilation of
the correspondence our office has generated with respect to requests
for copies of "Presidential Materials of the Nixon Administration."
Tab A consists of Congressional requests for information; Tab B, of
requests pertaining in some way to litigation; Tab C, of Freedom of
Information Act (FOIA) requests; and Tab D, of Executive Branch re-
quests (other than the Special Prosecutor).
When requests have been made by Congress for Nixon materials, we
have responded that disclosure of these materials requires the consent
of Counsel for Mr. Nixon as the result of the District Court's Order.
While it is possible for this office to unilaterally deny such requests,
we are in a stronger litigating and public relations position if we have
on record the refusal of Mr. Nixon or his Counsel. Prior to responding
to these requests, we have checked, to the extent practicable, with the
appropriate agencies to insure that the requested document cannot be
found among items that are outside the scope of the Order.
When FOIA requests have been made for Nixon materials, we have uni-
laterally denied them when the only available copies are believed to be
within the scope of the Order. If we were to find that the requested docu-
ment could be found at another agency, we would probably refer the re-
quester to that agency, where any exemptions under the Act could also
be invoked. Since one issue now before the courts is the availability of
these Presidential materials under the FOIA, we have taken a position,
concurred in by Justice, that the Order prevents us from disclosing the
contents of these materials on the basis of an FOIA request. Finally,
we point out that the White House (or the Domestic Council) is not believed
to be an agency for the purposes of the FOIA, and therefore is
to its provisions for mandatory disclosure.
subject OLIBRARY
May 29, 1975
MEMORANDUM FOR: PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Power of Congressional Committees to
Compel Appearance OF Testimony of
Presidential Assistants
This is in response to your request for a discussion of historical
precedents and policy on appearances or testimony before
congressional committees by Presidential assistants not confirmed
by the Senate.
Introductory Note
In his press briefing of April 25, regarding Senator Kennedy's
request to have Ambassador Brown testify before a Judiciary
Subeommittee, Ron Nessen stated: # traditionally appointees
of the President who are not subject to confirmation by the Senate
are not called to testify." Actually, a conplate reading of the
transcript (Tab A) makes clear that Ron was talking about a
narrower category of Presidential "assistants" rather than
"appointees".
On May 2, 1975, Senator John Sparkman sent a letter to the
President in order ". : to keep the record straight." (Tab B)
He noted:
"Among the Presidential appointees not
confirmed by the Senate who have testified
before congressional committees are
Peter Flanigan, Richard Goodwin,
Sherman Adams, Robert Cutler,- Robert E.
Merriam, Gerald D. Morgan, Lawrence
F. O'Brisn, General E. R. Quesada,
Roger L. Stevens, Dr. Stafford L. Warren,
and Dr. Jerome Wissner."
FORD & LIBRARY BERALD
Historical Precedents
There have been numerous instances in which White House Staff
members declined to appear before congressional committees.
1. On two occasions during the administration of
President Truman, a subcommittee of the House
Committee on Education and Labor issued subpoenas
to John R. Steelman, who held the title "Assistant
to the President". In both instances he returned
the subpoena with a letter stating that "In each
instance the President directed me, in view of my
duties as his Assistant, not to appear before your
subsommittee."
2. In 1951, Donald Dawson, an Administrative
Assistant to President Truman, was requested to
testify before a Senate Subcommittee investigating
the Reconstruction Finance Corporation, one
aspect of which concerned Mr. Dawson's alleged
misfessance. Although the President believed that
this request constituted a violation of the constitutional
principle of the separation of powers, he nevertheless
"reluctantly" permitted Mr. Dawson to testify so
that he could clear his name.
3. In 1944, Jonathan Daniels, an Administrative
Assistant to President Roosevelt, refused to respond
to a subcommittee subpoena requiring him to testify
concerning his alleged attempts to force the
resignation of the Rural Electrification Administrator.
He based his refusal on the confidential nature of his
relationship to the President. The Subcommittee
then recommended that Daniels be cited for contempt.
Thereupon Daniels wrote the Subcommittee that
although he still believed that he was not subject to
subpoena, the President had authorized him to
respond to the subcommittee's questions.
4. During the Eisenhower Administration Sherman
Adams declined to testify before a committee
investigating the Dixon-Yates contract because of
his confidential relationship to the President.
However, at a later date in the administrationl
GERALD LIBRARY
volunteered to tastify concerning his dealings with
Bernard Goldfine who was charged with violations
of federal criminal statutes.
5. During the hearings on the nomination of Justice
Fortas as Chief Justice the Senate Judiciary Committee
requested W. DeVier Pierson, then Associate Special
Counsel to the President, to appear and testify
regarding the participation of Justice Fortas in the
drafting of certain legislation. Plerson declined to
appear, writing the Committee as follows:
"As Associate Special Counsel to the
President since March, 1967, I have been
one of the "immediate staff assistants'
provided to the President by law. (3 U.S.C.
105, 106) It has been firmly established, as
at matter of principle and precedents, that
members of the President's immediate staff
shall not appear before a congressional
committee to testify with respect to the
performance of their duties on behalf of the
President. This limitation, which has been
recognized by the Congress as well as the
Executive, is fundamental to our system of
government. I must, therefore, respectfully
decline the invitation to testify in the hearings."
6. Similar incidents occurred during the Nixon
Administration in connection with attempts of Congressional
Committees to abtain the testimony of Dr. Kissinger
and Mr. Flanigan. It is my recollection that Kissinger
never testified as a Presidential assistant, but that
Flanigan did appear during the course of the Kleindienst
nomination with the approval of the President and under
certain ground rules limiting the scope of the inquiry to
his personal role in the ITT-Hartford merger.
It thus appears that at least since the Truman Administration
Presidential Assistants have appeared before congressional
committees only where the inquiry related to their own private
affairs or where they had received Presidential permission.
In the Dawson case both conditions were met.
PALD R. FORD LIBRAR
Relevant Doctrine
Although I am not aware of any judicial pronouncements on this
issue, two areas of Constitutional doctrine are relevant.
1. Executive Privilege. While an assertion of Executive Privilege
with respect to specific testimony or documents on the subject of
advice given by a staff member to the President would be entirely
proper, the propriety of invoking the privilege to direct the staff
member not to appear at all would be questionable.
Requests to the White House to furnish official documents in its
custody to a congressional committee clearly can be resisted on
the basis of Executive Privilege (notwithstanding Nixon V. Sirica).
But the claim of privilege for documents would not appear to be
co-exisnsive with the claim of personal Immunity from subppena.
A claim for official documents in the custedy of the Executive
Branch necessarily involves Executive business, whereas it
cannot be said to a certainty in advance that a White House adviser
will necessarily be interrogated only on matters pertaining to his
official duties.
2. Spearation of Powers. A more persuasive rationale for
denying the appearance or testimony of Presidential assistants
before congressional committees is the doctrine of separation of
powers. An immediate assistant to the President in the normal
situation acts as an agent of the President in implementing
Presidential functions. If a congressional committee could compel
the attendance of a Presidential adviser for the purpose of inquiring
into the discharge of functions constitutionally committed to the
President, the independence of the Presidency would be impaired
for the same reason that such congressional power to compel the
attendance of the President himself would impair that independence.
As President Truman said in a radio address on the occasion of his
refusal to appear pursuant to a request of the House Un-American
Activities Committee, if a President or former President could be
called and questioned about his official duties, "the office of
President would be deminated by the Congress and the Presidency
might become a mere appendage of Congress.' New York Times,
Nov. 17, 1933 at P. 26.
The issue at hand is treated comprehensively in the attached
Memorandum on Power of Congressional Committee to Compel
Appearance or Testimony of Presidential Assistants --
Constitutional and Statutory Aspects (Tab C) and the Statement
LISEARY GERALD
- 5 -
of William H. Rehnquist, Assistant Attorney General, before
the Subcommittee on Separation of Powers, Committee on the
Judiciary, United States Senate (Tab D).
Recommendation
I would suggest that you not respond to the letter of Senator
Sparkman at this time. In this regard, it would be best to
leave sleeping dogs lie.
FORD
LIBRARY
THE WHITE HOUSE
WASHINGTON
June 4, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THROUGH:
BILL CASSELMAN (bu
FROM:
BARRY ROTH
BR
SUBJECT:
Bipartisan Congressional
Leadership Meeting
It is possible that Senator Mansfield will renew his request for
the Nixon-Thieu correspondence at this evening's meeting.
If so, you should be aware that Monroe Leigh has been asked
by NSC to prepare a position paper for you and NSC with
respect to this request.
The White House response to Senator Sparkman's first letter
was a lengthy one dealing with executive privilege, but it did
not raise any arguments in connection with the litigation
involving the Nixon papers. While the factual situation
surrounding NSC's possession of copies of this correspondence
is complicated, it is still accurate to say that the issue which
the committee has raised in seeking this correspondence of the
Nixon Administration is one of the central issues of the ongoing
litigation. As a result, we are barred from releasing the actual
documents except with the consent of Mr. Nixon or his counsel.
Bill Casselman has spoken to Ray Larroca today, who advises
that his client remains opposed to any such release by this
Administration and would probably challenge our plans to
so in court.
BERALD FORD LIBRARY
NSC
Exchange of
THE WHITE HOUSE
nixon Then
WASHINGTON
letters
June 9, 1975
MEMO FOR:
GENERAL SCOWCROFT
MIKE DUVAL
FROM:
PHIL BUCHEN P.W.B.
I have responded to the requests of Congressman
Wolff and Congresswoman Abzug for the 1973
exchange of letters between Presidents Nixon and
Pompidou and Prime Minister Heath on the Concorde
SST (copies attached).
I understand that you are responsible for the sub-
stantive handling of this question and am therefore
referring both letters to you for response in
connection with the Administration's current position
on this issue. I concur in the approach that you have
discussed that would have State and DOT share prime
responsibility on this issue.
Attachments
THE WHITE HOUSE
WASHINGTON
June 9, 1975
Dear Mrs. Abzug:
On behalf of the President, this is in response to your letter of
May 15, 1975, in which you request copies of letters you believe
were written by former President Nixon on January 19, 1973,
to then-Prime Minister Heath and then-President Pompidou.
You indicate that these letters deal with White House support
for the Anglo-French Concorde supersonic transport.
The President has not addressed the question of the status to be
given such correspondence insofar as his Administration is con-
cerned. However, these letters, if they do exist, are part of the
"Presidential materials of the Nixon Administration, presently
in the custody of either the White House or the General Services
Administration. These materials are subject to the Order of the
United States District Court for the District of Columbia, entered
October 21, 1974, as amended, in Nixon V. Sampson, et al., Civil
Action No. 74-1518. This Order enjoins the disclosure, transfer,
or disposal of these materials, and effectively requires that
President Nixon or his agent consent to any production or use of
such materials for the limited purposes specified in the Order.
Accordingly, we have referred your request to Mr. Herbert J.
Miller, Jr., Counsel to Mr. Nixon, for his consideration.
We will advise you of the position taken by Mr. Miller. In
addition, I have requested that the appropriate officials contact
you directly concerning the present views of the Administration
on the treatment of the Concorde.
Sincerely,
Phily W. Buchen
Counsel to the President
GENALD B. FORD
The Honorable Bella S. Abzug
House of Representatives
Washington, D.C. 20515
June 9, 1975
Dear Mrs. Absug:
On behalf of the President, this is in response to your letter of
May 15, 1975, in which you request copies of letters you believe
were written by former President Nixon on January 19, 1973,
to then-Prime Minister Heath and then-President Pompidou.
You indicate that these letters deal with White House support
for the Angio-French Concords supersonic transport.
The President has not addressed the question of the status to be
given such correspondence insofar as his Administration is con-
cerned. However, these letters, if they do exist, are part of the
"Presidential materials of the Nixon Administration, "presently
in the eustody of either the White House or the General Services
Administration. These materials are subject to the Order of the
United States District Court for the District of Columbia, entered
October 21, 1974, as amended, in Nixon V. Sampson, et al., Civil
Action No. 74-1518. This Order enjoine the disclosure, transfer,
or disposal of these materials, and effectively requires that
President Nixon or his agent consent to any production or use of
such materials for the limited purposes specified in the Order.
Accordingly, we have referred your request to Mr. Herbert J.
Miller, Jr., Counsel to Mr. Nixon, for his consideration.
We will advise you of the position taken by Mr. Miller. In
addition, I have requested that the appropriate officials contact
you directly concerning the present views of the Administration
on the treatment of the Concorde.
Sincerely,
Philip W. Buchen
Counsel to the President
The Honorable Bella S. Absug
FORDO is LIBRARY GERALD
House of Representatives
Washington, D.C. 20515
bcc: Vern Loen
General Scowcroft
Mike Duval
Herbert J. Miller, Jr.
PWB:BNR:st
May 30, 1975
Dear Mrs. Abrug:
This will acknowledge receipt and thank you
for your recent letter to the President con-
cerning the reported exchange of letters
between former President Nixon and British
and French leaders about the supersonic
transport.
Please be assured that your letter was passed
along to the President and the appropriate
members of the staff,
With kind regards,
Sincerely,
Vernon C. Loen
Deputy Assistant
to the President
FORD i LIBRARY GERALD
The Honorable Bella S. Abzug
House of Representatives
Washington, D.C. 20515
bcc: w/incoming to Philip Buchen for DIRECT REPLY - please
provide this office with copy.
bcc: w/incoming to General Scowcroft - FYI
bcc w/incoming to John Marsh - FYI
VCL:EF:VO:vo
5-22
BELLA S ABZUG
WASHINGTON OFFICE:
20TH DISTRICT, NEW YORK
1506 LONGWORTH OFFICE BUILDING
WASHINGTON, D.C. 20515
COMMITTEES:
GOVERNMENT OPERATIONS
PUBLIC WORKS
Congress of the United States
DISTRICT OFFICES:
252-7TH AVENUE
NEW YORK, N.Y. 10001
house of Representatibes
725 WEST 181ST STREET
NEW YORK, N.Y. 10033
Washington, D.C. 20515
720 COLUMBUS AVENUE
NEW YORK, N.Y. 10025
May 15, 1975
The Honorable Gerald R. Ford
President of the United States
The White House
me
Washington, D. C.
Dear Mr. President:
As a member of the House Public Works and Transportation Subcommittee,
and a Representative from New York City, I have a vital interest in the
decision regarding the introduction of the supersonic transport into
regular service. I am opposed to permitting these aircraft into
regular service, and hope that the decision by the FAA is based upon
unbiased considerations.
It is my understanding, however, that on January 19, 1973, former
President Nixon wrote to the British and French Prime Ministers indicating
that he would do all he could to insure that the Anglo-French Concorde
supersonic transport be treated "equitably in the United States."
I am concerned that the Administration has therefore already made its
decision on the SST, and that the results of the formal proceedings
and tests which have been undertaken as part of the decision-making
process will not be the determining factor in deciding the issue.
I therefore request that your office make available to me a copy
Hof this letter. I also wish to know whether the position stated in
the letter regarding the treatment of the Concorde continues to be
that of the Administration.
Sincerely,
BELLA S. ABZUG
Member of Congress
BSA:csc
FORD LIBRAN is
THIS STATIONERY PRINTED ON PAPER MADE WITH RECYCLED FIBERS
THE WHITE HOUSE
WASHINGTON
May 26. 1975
Dear Mr. Welf:
On behalf of the President, this is in response to your letter of
May 15, 1975, in which you request on the basis of the Freedom of
information Act, 5 U.S.C. 552, copies of letters you believe to
have been written by former President Nixon on January 19, 1973,
to then-Prime Minister Heath and then-President Pompidou. You
indicate that these letters deal with White House support for the
Anglo-French Concorde supersonic air transport project.
These letters, if they do exist, would be part of the "Presidential
materials of the Nixon Administration, 11 which are presently in the
custody of either the White House or the General Services Administration.
These materials are subject to the Order of the United States District
Court for the District of Columbia, entered October 21, 1974, as
amended, in Nixon V, Sampson. et. al., Civil Action No. 74-1518.
This Order enjoins any disclosure, transfer, or disposal of the
above-referenced materials except under certain limited circum-
stances not present here. One issue in litigation is the availability
of the papers of a former President under the Freedom of Information
Act. In addition, I feel obliged to point out that the White House is
not believed to be an agency for the purpose of the Freedom of
Information Act, and is, therefore, not subject to its provisions for
mandatory disclosure.
Accordingly. for the reasons referred to above, your request is
respectfully denied.
Sincerely,
Philip W. Buchen
Counsel to the President
is
FORD
LIBRARY
The Honorable Lester L. Wolff
House of Representatives
Washington, D. C. 20515
May 19, 1975
Dear Mr. Wolf!
This will acknowledge receipt of your May 15
letter to the President requesting information
concerning exchanges between the governments
of France and Britain and our government com-
carning the Consords, with particular reference
to correspondence of former President Nixon.
You may be assured that your letter will be
presented for consideration at the earliest oppor-
tunity. I am certain you will hear further 22
soon as possible.
With kind regards,
Sincerely,
Vernon C, Loan
Deputy Assistant
to the President
The Honorable Lester 1 Wolff
House of Representatives
Washington, D.C. 20515
Ascc: w/incoming to Philip Buchen for DIRECT REPLY.
bcc: w/incoming to General Scowcroft - for yopr information.
VCL:EF:VO:vo
GERALD LIBRARY
'OTH DISTRICT. New York
OFFICES:
2463 RATEURN House OFFICE BUILDING
MEMBER:
WASHINGTON, D.C.
COMMITTEE ON
202-225-5956
INTERNATIONAL RELATIONS
Congress of the United States
136A MAIN STREET
CHAIRMAN
PONT WASHINGTON, New YORK 11050
SUBCOMMITTEE FUTURE FOREIGN
LICY RESEARCH AND DEVELOPMENT
house of Representatives
515-767-4343
214-07 42.40 AVENUE
MEMBER:
SUSCOMMITTEE
Mashington, D.C. 20515
BAYSIDE, New York 11361
INTERNATIONAL OPERATIONS
212-423-1050
COMMITTEE ON
157 VICE CHAIRMAN N.Y. STATE
VETERANS' AFFAIRS
DEMOCRATIC DELEGATION
SUBCOMMITTEES:
MEMBER:
HOSPITALS
Borno OF Visitors
EDUCATION AND TRAINING
U.S. MERCHANT MARINE ACADEMY
May 15, 1975
Dear Mr. President:
It has come to my attention that former President Nixon may have written
then-Prime Minister Heath, and then-President Pompidou, on Jan. 19, 1973,
indicating White House support for the Anglo-French Concorde supersonic air-
ME
craft project. It is my further understanding that during his recent visit,
Prime Minister Wilson discussed the Concorde project with you at some length.
In view of these reports, I am at this time formally requesting under the
provisions of the Freedom of Information Act, 5 U.S.C. 552, as amended by P.L.
93-502, that the Jan. 19, 1973 letters from former President Nixon, as mentioned
above, be released for study by those presently engaged in legal and legislative
activity bearing on the Concorde. I am the sponsor of legislation, H.R. 4933,
specifically dealing with the entire question of supersonic aircraft for com-
mercial purposes, and will require all relevant information in order to present
factual testimony at the appropriate time.
Along these lines, I would be grateful to receive any information available
on what assurances are presently being given British and French authorities con-
cerning the Concorde and in behalf of our government. It is my understanding
that the Federal Aviation Administration has yet to make a formal decision on
the Concorde, and in view of the upcoming House hearings, it is essential that
we be informed of our government's position and dealings with foreign governments
on this vital matter.
I will close with the note that contrary to the official position of the FAA,
as stated in January of this year, the Concorde SST as presently designed is not
roughly similar to American aircraft now in service. According to FAA figures,
the Concorde exceeds by 40 and 20 percent the 707 and 747 respectively on take-
off, and exceeds by more than 100 percent the sideline noise of all American jets.
It is only on approach that Concorde is better than, or similar to, American
aircraft. Further, the recent National Academy of Sciences report on the harmful
effects of all high-flying aircraft to the upper atmosphere, specifically the ozon:
layer -- with the accompanying implication of a grave skin cancer threat to the
citizens of the United States and the world - prompts me to urge that you
LIBRARY GERALD FORD
President of the United States
May 15, 1975
Page 2
make your own, independent, assessment of the advisability of allowing in
a foreign aircraft which fails to meet the environmental and other legal
standards being required of American aircraft. The dangers to the health
and welfare or our own people have been made abundantly clear since 1971,
when you, as a Member of this House, participated in the debate on an
American SST. I take the liberty today of assuring you, Mr. President,
that no evidence has been produced since then which would counter the wisdom
of Congress in rejecting an American SST as then designed.
Finally, let me assure you that no one would welcome a clean, safe and
economical SST more than I, Mr. President, and I wish that our French and
British friends had produced such an aircraft. I am not unmindful of the
financial and moral investment our allies have in Concorde, nor do I denigrate
your sincere interest in not complicating the already seriously threatened
economic posture of Britain and France. But the facts against the Concorde
as presently designed are clear, and overwhelming, and I again urge you to
take a new look at whatever commitments may exist in behalf of our government
on the Concorde SST.
Sincerely,
Lester L. Wolff
Member of Congress
The Honorable Gerald R. Ford
President of the United States
The White House
Washington, D.C.
LLW:cn
FORD is LIBRARY 070836
DEPARTMENT OF STATE
THE LEGAL ADVISER
WASHINGTON
Leading.
June 25, 1975
MEMORANDUM FOR: MR. BUCHEN
From:
Monroe Leigh M.L.
In accordance with your request, I have
prepared a revision of the May 9 draft prepared
by Les as a suggested response to the Sparkman
letter.
My changes consist in eliminating the last
sentence of the third paragraph of Les' draft
and introducing at that point one additional
paragraph. All the rest is the same. A copy
of my draft is attached at Tab A. A copy of Les'
draft is attached at Tab B. A copy of the Nixon
speech of January 23 is attached at Tab C. A
copy of the Joint Communique is attached at Tab D.
As you know, Secretary Kissinger has not yet
acted on the options paper on this subject now
pending before him. I will advise you as soon as
I know his decision. Meanwhile, this draft may
be helpful in your consideration of the problem.
I have assumed that the response to Senator
Mansfield would be identical or similar to the
response to Senator Sparkman.
Attachments:
As stated.
FORD & LIBRARY GERALD
Dear John:
I have given careful thought to your letter of
May 1 asking me to reconsider the Committee's request
for the texts of diplomatic exchanges with South Vietnam
concerning any United States commitments or undertaking
relative to the 1973 Paris Peace Agreement.
The fact that two of these exchanges have been made
public without authorization, and the fact that President
Nixon and President Thieu are out of office, do not
affect my obligation as a matter of principle to protect
the confidentiality of exchanges between heads of govern-
ment. The effectiveness of American diplomacy depends
in many ways on our reliability in observing and pre-
serving this essential principle for all our diplomatic
communications with other countries.
The subject matter of the correspondence and indeed
of the debate over them is no longer an issue of current
legislative business. As I indicated in my letter of
April 25, the Administration never regarded or cited
these documents as constituting a contractual agreement
binding upon the Congress. The exchanges reflected
unilateral statements of policy and intention that were
also stated publicly by President Nixon and members of
his Administration.
FORD
323
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As a matter of fact, it is clear from reviewing the
entire series of exchanges between President Nixon and
President Thieu that both parties to the correspondence
contemplated that the definitive expression of President
Nixon's intention would be embodied in public statements
by the President or members of his Administration con-
temporaneous with or shortly after the signing of the
Paris Peace Agreement. Thus the appropriate source for
determining the intent and effect of President Nixon's
correspondence with President Thieu is to be found in
his speech of January 23, 1973, and in the subsequent
Joint Communique issued by President Nixon and President
Thieu at the end of their meeting in San Clemente on
April 3, 1973.
I appreciate the sincerity of your Committee's
interest in this matter. I hope you will understand the
reasons for my decision.
Sincerely,
FORD is LICEARY OERALD
THE WHITE HOUSE
WASHINGTON
June 27, 1975
Dear Senator Abourezk:
On behalf of the President, I would like to thank you for your letter
of June 13, 1975, in which you renew the request of the Subcommittee
on Separation of Powers for copies of letters sent by President Nixon
to President Thieu during 1972-73.
Although the President fully appreciates the concerns of the Subcommittee
in this matter, he has asked me to advise you that he must again decline
this request for the reasons stated in his letter to you of May 27.
Let me assure you once more that this Administration will continue to
provide to the Congress documents which could be construed as con-
tinuing or constituting government-to-government understandings, in
accordance with P.L. 92-403. With respect to our previous commitments
in Southeast Asia, this has already been done.
Sincerely,
They W.Buchen Philip W. W.Buehen Buchen
Counsel to the President
The Honorable James Abourezk
United States Senate
Washington, D.C. 20510
LIBRARY GERALD ? FORD
THE WHITE HOUSE
WASHINGTON
July 1, 1975
MEMORANDUM FOR:
THE PRESIDENT
FROM:
PHILIP BUCHEN
T.W.B.
SUBJECT:
Response to Request by Senators
Sparkman and Mansfield for
Text of Nixon-Thieu Letters
Attached at Tab A is an incoming letter from Senator Sparkman
of May 1 and attached at Tab B is a copy of an incoming letter
from Senator Mansfield of June 2.
We have delayed preparing an answer to these two letters
pending a careful review of the material requested by
Monroe Leigh, General Counsel of the Department of State.
This whole problem is tied up with various inquiries going
on in the Congress relative to the possibility of legisla-
tion requiring the Executive Branch to file with the
Congress all manner of undertakings with foreign governments,
just as it is now required to do under the Case Act for
formal Executive agreements.
Attached at Tab C is a proposed response for your signature,
which has been approved by General Scowcroft, Monroe Leigh,
and me.
Attachments
FORD is LIBRARY 977839
July 1, 1975
Dear Johns
I have given careful thought to your letter of May 1
and Mike Manafield's of June 2, asking me to re-
consider the Committee's request for the texts of
diplomatic exchanges with South Vietnam concerning
any United States commitments or undertaking
relative to the 1973 Paris Peace Agreement.
The fact that two of these exchanges have been made
public without authorization, and the fact that
President Nixon and President Thiou are out of office,
do not affect my obligation as a matter of principle
to protect the confidentiality of exchanges between
heads of government. The effectiveness of American
diplomacy depends in many ways on our reliability in
observing and preserving this essential principle for
all our diplomatic communications with other countries.
As I indicated in my letter of April 25, the Administration
never regarded or cited these documents as constituting
a contractual agreement binding upon the Congress.
The exchanges reflected unilateral statements of policy
and intention that were also stated publicly by
President Nixon and members of his Administration.
As a matter of fact, it is clear from the entire series
of exchanges between President Nixon and President
Thisu that both parties to the correspondance con-
templated that the definitive expression of President
Nixon's intention would be embodied in public statements
I
FORD
GERALD
LIDRARY
by the President or members of his Administration
contemporaneous with or shortly after the signing of
the Paris Peace Agreement. Thus the appropriate
source for determining the intent and effect of
President Nixon's correspondence with President
Thieu is to be found in his speech of January 23, 1973,
and in the subsequent Joint Communique issued by
President Nixon and President Thieu at the end of
their meeting in San Clamente on April 3, 1973.
I appreciate the sincerity of your Committee's interest
in this maiter. I hope you will understand the reasons
for my decision.
Sincerely,
The Honorable John Sparkman
United States Senate
Washington, D.C. 20510
GRF:PWB:jem
cc: Senator Mansfield
FORD is LIBRARY 038870
TEART SYMINGTON, mm,
CLAIROANE FILL, R.I.
JAMES D. PEARSON, KANS.
CALE W. MC GEE. wa
CHARLES H. PERCY, ILL
MC GOVERN, 5. OAK.
POIERT P. GRIFFIN, MICH.
United States Senate
HT 11. HUMPHHEY, MINN.
HOWARD H. BAKER, JR., TENN.
DR.K CLANK. IOWA
COMMITTEE ON FOREIGN RELATIONS
2026PH H. BIOAN, JM., DEL.
PAT M. HOLT, CHIEF OF STAFF
WASHINGTON, D.C. 20510
ANTHUM M. KUHL, CHIEF CLERK
June 2, 1975
Dear Mr. President:
As you know, on two occasions the Committee on
Foreign Relations has requested copies of all pertinent
MP
documents which concern any commitments to or under-
standings with South Vietnam relative to the 1973 Paris
Cease-fire Agreement.
On May 20 the Committee discussed this matter
further and by agreement of all Members present decided
to make a complete study of all aspects of the commitments
question. In view of this action, the Committee respect-
fully reiterates its request for copies of all pertinent
documents. I hope that upon reconsideration you will
decide to respond favorably to the Committee's request for
these documents.
Sincerely yours,
mike Mike Mansfield handfull
Acting Chairman
The President
The White House
FORD & LIBRARY GERALD
DEPARTMENT OF STATE
THE LEGAL ADVISER
WASHINGTON
July 18, 1975
MEMORANDUM FOR MR. BUCHEN
Attached is a memorandum prepared by
Jim Michel of this office on the Legislative
History of 22 U.S.C. 2680 (b).
It seems to me that his conclusions
are consistent with those which you had already
reached when you and I last discussed this
provision of law some weeks ago.
Wouse Leigh
Monroe Leigh
Attachment:
As stated.
FORD is LIBRARY 07V839
DEPARTMENT OF STATE
Washington, D.C. 20520
July 15, 1975
MEMORANDUM
TO
: L
- Mr. Monroe Leigh
FROM
: L/PM - James H. Michel jum
SUBJECT: Legislative History
of 22 U.S.C. 2680 (b)
At your request, I have examined the legisla-
tive history of 22 U.S.C. 2680 (b) which provides
as follows:
The Department of State shall keep
the Committee on Foreign Relations of the
Senate and the Committee on Foreign Affairs
of the House of Representatives fully and
currently informed with respect to all
activities and responsibilities within the
jurisdiction of these committees. Any
Federal department, agency, or independent
establishment shall furnish any information
requested by either such committee relating
to any such activity or responsibility.
The above-quoted provision originated in S. 1894
(92d Cong., 1st Sess.), introduced by Senator Fulbright
(117 Cong. Rec. 15797, May 19, 1971). This bill was
not acted upon by the Foreign Relations Committee, to
which it was referred. However, the committee
included this provision in S. 2820, the foreign
assistance bill reported on November 8, 1971.
The committee report Rept. No. 92-432) in-
dicates at page 17 a dissatisfaction with Executive
Branch responses to Congressional inquiries, but does
not suggest an intent to impose any affirmative duty
upon the Department to provide specific information
not requested by the committees.
LIDRAST GERALD R. FORD
- 2 -
The Senate debate on S. 2820, and its companion
bill, S. 2819, contains similar complaints by
Senator Fulbright about Executive Branch delays and
inadequacies in responding to Congressional requests
for information. In particular, the complaint was
an alleged lack of responsiveness on the subject of
Administration intentions relative to Cambodia by
both the Secretary of State, in testimony before the
Foreign Relations Committee, and by the Department
of Defense and the Administration generally in
refusing to release to the committee its five-year
military aid plans for Cambodia. This issue was the
subject of a decision by President Nixon to invoke
Executive privilege. However, the debate does not
indicate that this particular provision was intended
to require anything more specific than an overall
improvement in Executive Branch responsiveness to the
informational needs of Congress. See 117 Cong. Rec.
40167-40170, 40174.
The House-Senate conference report (S. Rept.
No. 92-590) eliminated a feature of the original
Senate proposal which would have required the
Department of State to report to Congress on the
activities of other government agencies operating
overseas, but provides no clarification of legisla-
tive intent.
Since the enactment of 22 U.S.C. 2680 (b), I am
unaware of any Congressional requests for reports
under this statute in addition to those already
furnished under other, more specific legislation or
on a voluntary basis. Similarly, I am unaware of any
initiative by the Department to provide additional
reports on the basis of the statute.
In view of the foregoing, it would appear that
22 U.S.C. 2680 (b) may be regarded not as an additional
requirement, but as a reinforcement of the Department's
responsibilities under other laws which have been or
may be enacted to assist the concerned committees in
carrying out their responsibilities. Of course,
neither this legislation nor any other Act of Congress,
can diminish the President's constitutional authority
to withhold information in appropriate circumstances.
L/PM:JHMichel/JMIwry:edk
&
FORD
ext. 20557
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LIBRARY
former
President
nixon
THE WHITE HOUSE
WASHINGTON
(briefing)
July 30, 1975
Dear Senator Beall:
This is in further response to your letter of
June 17 inquiring on behalf of Mrs. Helen
Travaglini why former President Nixon con-
tinues to receive White House briefing reports.
Traditionally, former Presidents have received
briefing reports after leaving office. This
practice, as it existed between former President
Johnson and then President Nixon, was formalized
and made applicable to all succeeding Presidents
by Executive Order 11456, issued February 14,
1969.
I trust that this will be of assistance in re-
sponding to Mrs. Travaglini's request.
Your inquiry is appreciated.
Sincerely,
They W. Baden Philip W. Buchen
Counsel to the President
Honorable J. Glenn Beall, Jr.
United States Senate
Washington, D. C. 20510
bcc: Jim Connor
FORD is 038470 ALIBRARY
Max Friedersdorf
Bill Kendall
DEPARTMENT OF STATE
THE
Washington, D.C. 20520
LIMITED OFFICIAL USE
MEMORANDUM
August 6, 1975
TO:
NSC - General Scowcroft
Major McFarlane
Mr. Janka
EA - Mr. Habib
S
- Mr. Bremer
FROM:
L
- Monroe Leigh 70 M.h.
SUBJECT: Treatment of Nixon-Thieu Letters
As each of you knows, the Congress has shown
strong interest in securing copies of the so-called
Nixon-Thieu correspondence containing alleged "commit-
ments" to the Government of South Vietnam. Initially
the congressional criticism focussed on the fact that
this correspondence was being kept secret from Congress.
The later criticism, However, has focussed on the con-
tention that since this correspondence embodied "commit-
ments," it should have been supplied to Congress under
the provisions of the Case Act, which requires that
"international agreements other than treaties" be
reported either to the Congress or, in the case of
classified international agreements, to the Senate
Foreign Relations Committee and the House International
Relations Committee.
As you know, Secretary Kissinger, testifying
before the Senate Foreign Relations Committee shortly
after unauthorized disclosure of two of the Nixon
letters in the New York Times, took the position that
these letters were not international agreements but
statements of personal intention on the part of
President Nixon. Somewhat later, on May 13 when I
testified before the Abourezk Subcommittee of Senate
Judiciary, I was questioned about the Nixon-Thieu
FORD is 0ERALD LIBRARY
LIMITED OFFICIAL USE
LIMITED OFFICIAL USE
-2-
correspondence and took the same position. At about
the same time, Professor Louis Henkin of Columbia
University Law School, testifying before the Abourezk
Subcommittee, characterized the two letters which had
been released as statements of political intention
rather than international agreements. Neither my
answer nor Henkin's has satisfied Senator Abourezk
and his colleagues, and there have been numerous
senatorial letters requesting copies of the corres-
pondence or demanding that they be submitted to
Congress under the Case Act.
As Phil Buchen has pointed out, the CSCE
agreement which the President signed in Helsinki on
July 31 is an example, and a highly publicized one,
of an international accord which does not have binding
legal effect and which consists entirely of declarations
of political intents. In fact, the final act at
Helsinki includes a provision, which in effect states
that the Helsinki Accords are not eligible for registra-
tion as an international agreement under Article 102 of
the United Nations Charter.
The point is that it is not unusual in inter-
national intercourse for nations to adopt statements of
political intention which do not rise to the level of
international agreements.
It may be useful, therefore, in responding
to future demands for the Nixon-Thieu correspondence not
only to state that they constitute no more than state-
ments of political intention, but also to point out that
the Helsinki Accords resulting from the CSCE belong to
the same category of diplomatic instrument.
CC: White House - Mr. Buchen
LIMITED OFFICIAL USE
:
FORD
GERALD
LIGRARY
-Thien
THE WHITE HOUSE
WASHINGTON
papers
August 11, 1975
Dear Mr. Sloan:
In response to your request to Mrs. Agnes Waldron, enclosed
are transcripts from three Ron Nessen press briefings con-
cerning the exchange of correspondence between thenPresident
Nixon and then Premier Thieu.
A copy of these materials has also been provided to the Department
of Justice.
Sincerely,
Bary Rothfor/
Philip W. Buchen
Counsel to the President
Mr. David Sloan
Arnold & Porter
1229-19th Street, N.W.
Washington, D.C.
CC: Irwin Goldbloom
(Attn: Dave Anderson)
&
Fore
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