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Protection - Responsibilities of the Secret Service and EPS (1)
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4520879
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Protection - Responsibilities of the Secret Service and EPS (1)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Department of Homeland Security. U.S. Secret Service. (2003 - )
Ex-presidents
Presidential protection
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The original documents are located in Box 57, folder "Protection - Responsibilities of the
Secret Service and EPS (1)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 57 of the Philip Buchen Files
at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
Jay:
Ro item on p.ll.
Is GAO right on
the legal point ?
P
GERALD LISEARY ? FORD
Eva, I've forwarded
to gay.
Secret Service
11
doubt, to apply for its benefits. Nothing will be lost by
extending the deadline, and much can be gained by doing so.
The program was created to bind up the lingering wounds of the
Vietnam war. Let's apply a full bandage, not a mere Band-Aid.
Midwest News
Seth Kantor, Detroit News, Washington: A detail of Secret
Service agents, acting under orders from Treasury Secretary
William Simon, has been providing Simon and his family personal
bodyguard protection at a cost of more than $500,000 a year.
But a report by the General Accounting Office says Simon is not
authorized by law to have the special unit, Treasury officials
also have told the GAO that $5,400 is being spent to establish
special facilities for the Secret Service at Simon's home.
Spokesmen for Simon and the Secret Service refused to say what
those facilities are or how many agents are being used to
serve Simon personally.
FOREIGN AFFAIRS - DEFENSE
Western Papers
Houston Chronicle, "Either Way, It Is Embarrassing."
Once again, for the umpteenth time, this country has been
caught showing disregard for our Latin American neighbors.
It is downright embarrassing. In its determination to show
muscle, Congress included in the trade act passed at the
last session a provision which made members of the Organization
of Petroleum Exporting Countries ineligible for normal trade
concessions. The target of course was the Arab nations, but
overlooked was the fact that during their oil boycott, countries
such as Venezuela and Ecuador continued to supply us petroleum.
We have some fence-mending to do, and best we get about it.
-----
FOKD
Edgar Prina, Military Writer, Copley News Service
The
Soviet Union spent 50 per cent more than the United States on
naval ship construction in the 1964-74 decade, accordino to
LIBRARY
new Central Intelligence Agency estimates. The previous
secret CIA figures were disclosed by Defense Secretary James
R. Schlesinger who indicated that according to the latest
CIA projections, the Soviets are "outspending the United States
on defense by 20 per cent."
THE WHITE HOUSE
WASHINGTON
August 19, 1974
MEMORANDUM FOR:
Phil Buchen
B.C.
FROM:
Bill Casselman
SUBJECT:
Role of the Office of Counsel to the President
re Protective Responsibilities of the United
States Secret Service and the Executive
Protective Service
The more frequently recurring protective responsibilities of the United
States Secret Service (USSS) and the Executive Protective Service (EPS)
are performed by these agencies without the necessity of a Presidential
directive. However, in certain instances, protective functions are to be
performed at the direction of the President. In the past, this responsibility
has devolved upon the Office of Counsel to the President for handling, in
close coordination with the Department of State and the Department of the
Treasury.
The basic authority of the USSS is contained in 18 U.S.C. 3056, which
states in pertinent part:
(a) Subject to the direction of the Secretary of the Treasury,
the United States Secret Service, Treasury Department, is
authorized to protect the person of the President of the United
States,
protect the person of a visiting head of a foreign
state or foreign government and, at the direction of the President,
other distinguished foreign visitors to the United States and
official representatives of the United States performing special
missions abroad
(emphasis added)
The Executive Protective Service, the successor organization of the White
House Police Force, also reports to the Secretary of the Treasury, and
2
performs such duties as the Director of the Secret Service, without the
necessity of a Presidential directive, shall prescribe at various locations.
These locations include the Executive Mansion and grounds, any building in
which Presidential offices are located, and "foreign diplomatic missions
located in the metropolitan area of the District of Columbia" (3 U.S.C. 202).
This section also provides that EPS shall perform such protective duties at
"foreign diplomatic missions located in such other areas in the United States,
its territories and possessions, as the President, on a case-by-case basis,
may direct. "
To date, the only EPS contingent located outside of the District of Columbia
metropolitan area is in New York City, due to the number of diplomatic
missions present in conjunction with the United Nations. EPS presently
possesses the only authority to provide such protection at diplomatic
missions. Local police will generally not provide protection in the
corridors of high rise buildings, thus making the EPS the only available
source of protection for many missions.
The present practice with respect to requests for protective services that
require a Presidential directive has been for the Office of Protocol of the
Department of State to make an oral request of the Counsel to the President
and to follow with a written confirmation. The Counsel's office then confers
with the Protective Forces Division of the USSS as to the particular need for
security for either that person or location. If the Secret Service then feels
that the request is justified, the Counsel's office will send a written request
to the appropriate office in the Department of the Treasury.
It can be expected that these requests will continue to remain a rather
sensitive problem in the future. The prestige factor of being entitled to
protection, as well as the accompanying limousines and the elimination of
waiting in lines, will likely result in some requests that cannot be justified.
In terms of long range planning, some thought might be given to relieving
the relatively small USSS and EPS organizations of this responsibility, and
instead placing it in an already existing security function elsewhere, such
as that of the Department of State or the Federal Protective Service of the
General Services Administration. This will, however, require new statutory
authority. In view of the current congressional criticism of the already
large number of federal security forces, a new organization should not be
created.
FORO LIBRARY
Secret
service
Monday 8/26/74
Plans to call back at 12:30
11:15 Dr. Leo Savage, Executive Director, U.S. Counsel for
World Affairs, has called to say on August 16 he wrote a
letter to the President re a possible subpoena with respect
to his case of fraud which comes up in the U.S. Superior Court
in Washington tomorrow. In the letter he pointed out that he
didn't understand how the Secret Service was involved.
The Secret Service was directed to promote the concept that
the title of Mr. Teenage America was a fraud -- after Vice President
Ford had extended best wishes to Mr. Campbell. (five days before
an arrest at the Statler Hilton for unpaid board bill on Monday --
evicted on Saturday).
During the arrest, the Secret Service returned to speak to Mr. Campbell
and wanted to know if he had used the letter from the Vice President
complimentary accommodations at the
to get hotel? Dr.Mr. Savage said there should have been
no involvement of Secret Service -- had no basis in law except as
a fishing expedition.
Is asking if there is any way we could
clear this up without the issuance of a subpeena.
FORD i LIBRARY BERALD
OF
REPARTMENT THE 1789 TREASURY
THE
THE UNDER SECRETARY OF THE TREASURY
Borpiling
WASHINGTON, D.C. 20220
September 16, 1974
Dear Phil:
In view of the fact that we will be discussing the
matter of Secret Service protection on future occasions,
I thought that it would be appropriate to send you a
copy of a memorandum which I prepared as General Counsel
of this Department. The memorandum discusses situations
during which protection has been authorized where it was
not specifically authorized under the protective statute,
18 U.S.C. 3056 (a).
With kind regards,
Sincerely yours,
Edward C. Schmults
The Honorable
Philip Buchen
Counsel to the President
The White House
Washington, D. C.
Enclosure
GERAALD FORD LIBRART
OF
AMOUNT THE 1789 TREASURY
THE
THE UNDER SECRETARY OF THE TREASURY
WASHINGTON, D.C. 20220
September 16, 1974
Dear Phil:
In view of the fact that we will be discussing the
matter of Secret Service protection on future occasions,
I thought that it would be appropriate to send you a
copy of a memorandum which I prepared as General Counsel
of this Department. The memorandum discusses situations
during which protection has been authorized where itwwas
not specifically authorized under the protective statute,
18 U.S.C. 3056 (a).
With kind regards,
Sincerely yours,
(Signed) Ed Schmults
Edward C. Schmults
The Honorable
Philip Buchen
Counsel to the President
The White House
Washington, D. C.
Enclosure
LIBRARY GERALD ? FORD
DEPARTMENT
THE GENERAL COUNSEL OF THE TREASURY
THE
WASHINGTON, D.C. 20220
1784
MAR 19 1974
MEMORANDUM FOR: Secretary Shultz
FROM:
Edward C. Schmults
SUBJECT:
The Authority of the Secret Service to Provide Protection
in Circumstances Not Specified in 18 U.S.C. 3056(a)
Following your appearance before the Senate Appropriations Committee on
February 27th, you asked me to prepare a memorandum on the authority of the
Secret Service to provide protection in circumstances not specified in the
basic protective statute, 18 U.S.C. 3056(a). This document is provided in
response to that request.
In 1865 the Secret Service was established as a division of the Treasury
Department to suppress counterfeiting, but before the turn of the century it
was engaged, in an ad hoc, stop-gap way, in protecting the President.
Although the Secret Service began full-time protection of the President in
1902, four years passed before specific legislative sanction and funds were
provided for such protection. It was not until 1951 that the basic protective
statute was enacted authorizing permanent protection for the President. This
statute, 18 U.S.C. 3056(a), has been amended several times to enlarge the
number of persons to be protected. Thus, the evolution of the Secret Service
protective mission has been an on-going process. The history and nature of
that mission make it imperative, in Treasury's view, that the protective
statute not be regarded as preventing the Secret Service from protecting
persons not specifically covered by the statute in circumstances where the
risk of harm and the public interest justify protection.
BERRLD FORD LIBRART
- 2 -
The basic statute now authorizes the Secret Service, subject to the
direction of the Secretary of the Treasury, to protect the President and his
immediate family; the President-elect; the Vice President or other officer
next in succession to the President; the Vice President-elect; major
Presidential and Vice Presidential candidates; former Presidents and
their wives; the widows of former Presidents until death or remarriage;
minor children of former Presidentsuntil they reach the age of sixteen;
visiting heads of state and of foreign governments; and, at the direction
of the President, other distinguished foreign visitors and official repre-
sentatives of the United States performing special missions abroad
2/
Consistent with the evolution of the Secret Service's protective mission,
the Treasury Department has over the years taken the position that this
statutory enumeration does not preclude the Secret Service from affording
protection to individuals who do not fall within the specific categories
set forth in 18 U.S.C. 3056(a) if there are circumstances present which make
such protection reasonable as a matter of both law and public policy. Be-
cause of the nature of what is in issue, i.e., the protection of persons
whose lives are considered to be in danger, we have not regarded Congress'
1/ The responsibility to protect Presidential and Vice Presidential candidates
stems from P.L. 90-331 (1968). This authority is noted in a footnote to
18 U.S.C. 3056.
2/ The protective statute has been considerably broadened since 1951 when
it only authorized protection of the President and his immediate family,
the Vice President and the President-elect. Persons in several of the
new categories of protectees added by the Congress had already been
receiving protection at the direction of the President prior to
Congress' specific authorization.
LIBRARY GERALD
- 3 -
enumeration of specific classes of persons to be protected as intended to
preclude protection which is in the public interest when ordered by the
President on a temporary basis or protection for which there is other
authority, as discussed below.
****
The Treasury Department has operated for many years under the general
presumption that there is Presidential authority to order protective details
in cases not expressly covered by the protective statute but which are in
the public interest. This ability provides a necessary flexibility,
particularly in emergency situations, to cover important situations not
foreseen by the Congress and not dealt with in 18 U.S.C. 3056(a). In a
present day environment where terrorism and kidnapping are being increasingly
utilized in attempts to secure social and economic demands, this capability
appears to be a necessity.
The Treasury, as an agency of the Executive branch of the government,
is not in a position to express authoritative conclusions as to the basis
for the President's inherent power to order Secret Service protection of a
specific individual. That is a determination to be made in the first instance
by Counsel to the President. But, in the absence of an authoritative expression
to the contrary, the Treasury believes that in cases where the President deter-
mines that the risk of harm and the public interest justify Secret Service
protection, his directive to furnish such protection is, as a matter of law,
presumptively valid.
FORD
LIBRARY
- 4 -
Inherent executive authority has been utilized on a number of past
occasions by many Presidents to order protection in a variety of circumstances
For example, during World War II protection was afforded to Queen Wilhelmina
of the Netherlands, Prime Minister Winston Churchill and other official
foreign visitors to the United States. President Truman and his successors
sent Secret Service details to Latin America to provide protection for
Secretaries of State. Governor Rockefeller was protected by the Secret
Service on an official trip to Latin America during a time when extensive
rioting was taking place. Former Vice President Humphrey received protection
for six months in 1969 after leaving office. Although he was not a candidate
for the Presidency, Senator Edward M. Kennedy was protected subsequent to
the assassination attempt against Governor Wallace during the 1972 Campaign.
Finally, we would point out that if the statute is read literally, protection
for Vice President-designate Ford was not expressly authorized during the
time period from his nomination by the President until his confirmation by
the Congress, since he was neither a "candidate" for the Vice Presidency for
whom protection was recommended by the advisory committee prescribed in
P.L. 90-331, nor an official next in succession to the Presidency, nor a
"Vice President-elect."
3/ With two exceptions, those situations where protection has been ordered
by the President have involved the protection of individuals in
circumstances akin to, but not within, the specific parameters set
forth in 18 U.S.C. 3056(a). These exceptions concern the protection of
foreign officials visiting the United States and protection of U.S.
officials on missions abroad before the statute was amended in 1971
to specifically cover both types of situations.
LIBRARY GERALD ? FORD
- 5 -
The Congress has been informed of past instances where the Secret Service
has provided protection for persons not within the specific categories listed
in 18 U.S.C. 3056(a) To our knowledge, no significant objections have
4/ In 1950 testimony before the Labor-Federal Security Appropriations Sub-
committee of the House Appropriations Committee indicated that, although
it was not at the time prescribed by the Secret Service's statute, the
Vice President and certain foreign dignitaries were receiving Secret Service
protection. (Hearings before the House Subcommittee on Labor-Federal
Security Appropriations on the Second Supplemental Appropriations Bill
for 1951, 81st Cong., 2nd Sess., p. 175 (1950).) Although Mr. Truman
had a Secret Service detail as Vice President and Vice President Wallace
was guarded on a few occasions, the statute was not amended to specifically
authorize the Secret Service to protect the Vice President until 1951.
In September 1972 it was formally reported to the Treasury subcommittee
of the House Appropriations Committee that Secret Service protection was
being provided to Senator Edward Kennedy, although he was not a candidate
in the 1972 Presidential Campaign, "by direction of the President, pursuant
to the inherent powers of the President." (Hearings before the House
Subcommittee on the Treasury, Postal Service, and General Government
Appropriations on the Supplemental Appropriation Bill, 1973, 92nd Cong.,
2nd Sess., p. 1058 (1972).) In March, 1971, it was reported to the same
subcommittee that, "at the direction of the President," the Secret Service
had during 1970, prior to enactment of legislation authorizing such, pro-
tected numerous visiting foreign dignitaries. (Hearings before the House
Subcommittee on the Treasury, Postal Service, and General Government
Appropriations on Appropriations for 1972, 92nd Cong., 1st Sess., PP. 222,
224 (1971).) The Senate Appropriations Subcommittee with responsibility
for the Treasury Department was also apprised of both of these protective
assignments. (Hearings before the Senate Subcommittee on the Treasury,
U.S. Postal Service and General Government Appropriations on H.R. 9590,
93rd Cong., 1st Sess., p. 462 (1973); and, Hearings before the Senate
Subcommittee on the Treasury, U.S. Postal Service and General Government
Appropriations on H.R. 9271, 92nd Cong., 1st Sess., pp. 475-476 (1971).)
In 1969 the Senate Appropriations Subcommittee on Deficiencies and
Supplementals heard testimony that the President, with no specific
legislative authority, had ordered Secret Service protection for Governor
Rockefeller during an official trip to Latin America. (Hearings before
the Senate Subcommittee on Deficiencies and Supplemental Appropriations
on H.R. 11400, 91st Cong., 1st Sess., P. 1125 (1968).)
LIBRARY GERALD FORD
- 6 -
ever been raised in connection with any protective mission other than that
involving former Vice President Agnew in the recent past. 5/ In pertinent
situations lack of Congressional objection to a long-standing practice of the
Executive has been interpreted as supporting the proposition that such
practice is impliedly authorized. United States V. Midwest Oil Company, 236
U.S. 459 (1915).
Although no statute specifically authorizing such conduct was in
existence, the Supreme Court recognized the authority of the President to
assign a deputy Federal marshal to protect a U.S. Supreme Court Justice whose
life had been threatened as part of the Executive's constitutional duty to
"take care that the laws be faithfully executed", (U.S. Const. Art. II, §3)
In re Neagle, 135 U.S. 1 (1890). We believe that such inherent Presidential
authority to direct Federal officers to provide protection where it is in
the public interest supports the view that the statute enumerating the
general powers of the Secret Service was not intended to be exclusive.
5/ The issue of whether, and under what circumstances, the Secret Service
has legal authority to provide protection beyond that specifically set
forth in 18 U.S.C. 3056(a) has never been considered by any court of
the United States. In fact, before the Comptroller General set forth
his recent opinion with respect to former Vice President Agnew's
protection, an opinion which limited itself only to the case of
Mr. Agnew and expressed no other conclusions, no views, to Treasury's
knowledge, had ever been expressed formally by any agency of the
United States that Secret Service protection in circumstances other
than those specifically set forth in 18 U.S.C. 3056(a) might be with-
out authority of law.
FORD : SERALD LIBRARY
- 7 -
Such an assignment of Executive branch personnel should, because of the
necessity to implement protection in certain situations, be viewed as
analogous to other unspecified Presidential powers, such as that to remove
Executive officials upheld by the Supreme Court in Myers V. United States,
272 U.S. 52 (1926).
****
There is a second type of situation, namely that in which Secret
Service protection has been afforded without Presidential directive,
generally on the authority of the Secretary of the Treasury, to individuals
not within those categories specifically set forth in 18 U.S.C. 3056(a).
In accordance with the comments made at the Senate Appropriations Committee
hearing on February 27th, we are discussing in this section of the memorandum
only the protection being accorded to the Secretary and the current Deputy
Secretary of the Treasury, and the Secretary of State.
The deployment of security personnel is an executive function essential
to the management of a department and the performance of its business. Thus,
it is reasonable that, if considered necessary in view of demonstrable
evidence of risk, the Secretary and the current Deputy Secretary of the
Treasury be assigned an appropriate number of professionally trained Secret
Service agents. Section 301 of 5 U.S.C. provides, in part, that "the head
of an Executive department or military department may prescribe regulations
for the government of his department, the conduct of its employees, the
distribution and performance of its business.
" Reorganization Plan 26
B.
FORD
of 1950 (5 U.S.C. App., p. 544) transferred all duties and functions
of
GERA
LIBRARY
- 8 -
employees of the Department of the Treasury, including those of the Secret
Service, to the Secretary. Accordingly, the Secretary is empowered by law
to supervise and direct the activities of Secret Service officers. Such
officers, like all other Treasury personnel, could be assigned to render him
direct assistance to carry out any Treasury responsibilities. In the past,
in response to a White House request, the Secretary has deployed Secret Service
officers as sky marshals to protect commercial aircraft against hijacking
The Secret Service has trained security personnel from other departments so
that they could protect their own department heads. 8/ The Secret Service
also at times conducts investigations for Treasury bureaus which do not
have their own investigative capabilities. 9/ None of these functions are
specifically set out in 18 U.S.C. 3056(a). Each activity has been discussed
in appropriation hearings before Congress and none has been criticized as
beyond the Service's authority as set forth in 18 U.S.C. 3056(a).
During World War II Secretary Morgenthau was supplied a Secret Service
detail to insure his personal safety. Given the present national environment
and evidence of specific risks, it seems reasonable to the Treasury
6/ See also section 5 of P.L. 91-651 (1971) in which Congress specifically
made 18 U.S.C. 3056, as amended, subject to Reorganization Plan 26.
7/ Hearings before the House Subcommittee on Treasury, Post Office and
General Appropriations on Appropriations for 1972, 92nd Cong., 1st Sess.,
pp. 223, 262-263 (1971).
Hearings before the House Subcommittee on the Treasury, Postal Service,
and General Government Appropriations on Appropriations for Fiscal Year
1974, 93rd Cong., 1st Sess., Part I, p. 392 (1973).
Hearings before the House Subcommittee on Treasury - Post Office Departments
Appropriations on Appropriations for 1958, 85th Cong., 1st Sess., PP. 533-534
(1957) (personnel investigations for the Bureau of Engraving and Printing,
Bureau of the Mint, Bureau of Public Debt, etc.).
LIBRARY GERALD P. FORD
- 9 -
that the Secretary and the current Deputy Secretary of the Department also
be assigned Secret Service agents who have been trained to provide personal
protection.
Finally, in addition to authorizing Secret Service protection for the
two senior officials in the Treasury Department, the Secretary of the Treasury
has, in response to a request from Secretary of State Kissinger, directed the
Secret Service to protect him. Such action is justified under the Economy
Act of 1932, as amended, 31 U.S.C. 686. The Department of State is authorized
under 22 U.S.C. 2666 to provide protective services for the Secretary of
State, and funds have been appropriated for that purpose. Government
agencies are authorized under 31 U.S.C. 686 to use available funds to procure
services from other government agencies. Pursuant to this authority, the
Department of State has determined that it is in the interest of the govern-
ment to utilize the Secret Service to provide protection, on a partially
reimbursable basis, for the Secretary of State.
****
For the reasons stated above, the Treasury believes that the basic
protective statute is not exclusive and that additional Secret Service pro-
tection may be directed in cases not specifically covered by the statute
where the risk of harm and the public interest justify such protection.
Recently this proposition has been questioned with respect to at least
one protective detail not covered by the statute. It may be desirable to
BEEN R. FORD THERE
- 10 -
consider again broadening the protective statute to cover additional
situations where protection is warranted. If this view is accepted,
further consideration will be given to this matter by the Treasury with a
view to developing specific legislative proposals.
R.
GENETO
FORD
LISEARY
10/10/74
To:
Mr. Buchen
From: Jay
Concerning the attached memo, I
direct your attention to paragraph 1 dealing
with Presidential appointment records.
Inquiries about these appointments are
referred to Mrs. Fry. We are not told
of the standard she applies in releasing
this information.
GERALD LIBRARY $ FORD
DEPARTMENT OF THE TREASURY
UNITED STATES SECRET SERVICE
WASHINGTON, D.C. 20223
OFFICE OF THE DIRECTOR
October 7, 1974
TO
:
Honorable Philip W. Buchen
Counsel to the President
The White House
FROM
:
Mr. Clinton J. Hill
Assistant Director
Protective Forces
SUBJECT
:
White House Appointments
We would like to update our files relative to White House appoint-
ment inquiries received by the Executive Protective Service from
White House Staff members.
During the Nixon Administration the following policy was implemented
with the White House Legal Counsel for handling these inquiries.
Any inquiries received by the Executive Protective
Service Officers regarding previously cleared appoint-
ments to the White House Complex were referred to the
Chief's Office, Executive Protective Service. These
inquiries were then handled in the following manner:
1.
Inquiries made by White House Staff offices
requesting information concerning appointments
involving other (second party) White House
Offices were referred to the White House Legal
Counsel for approval. If approved by the
Legal Counsel, the Office of the Chief would
furnish the information requested, if available.
Presidential appointment records accumulated
daily by the Executive Protective Service are
turned over at the end of each month to Mrs.
Gertrude Brown Fry, Special Files Unit, Old
Executive Office Building. Inquiries concerning
these appointments are referred to Mrs. Fry.
B.
FORD
GERALD
LIBRARY
-2-
2.
Information requested by Staff members concerning
appointments to their (first party) individual
office was furnished by the Office of the Chief,
if available.
Your concurrence and/or comments on this matter is requested in
order to update our files and to insure efficient handling of
this situation.
Clinton JAir
Clinton J. Hill
BERALD R. FORD LIBRANA
THE
DEPARTMENT THE TREASURY
THE DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220
1789
ASSISTANT SECRETARY
safling
October 11, 1974
MEMORANDUM FOR: The Honorable Donald Rumsfeld
Assistant to the President
The Honorable Philip W. Buchen
Counsel to the President
FROM:
David R. Macdonald
oon
Assistant Secretary (Enforcement,
Operations, and Tariff Affairs)
SUBJECT:
Incident Aboard Kissinger Aircraft
As Secretary Kissinger's plane was taxiing to
the runway in Cairo today enroute to Damascus, a Uzi
machine gun encased for storage discharged one round,
which ricocheted and struck Special Agent Bothe, of
the Kissinger protective detail, on the arm and fore-
head. The wounds were superficial. As of now, the
reason for the discharge is not known. The Uzi must
have been cocked with a round in the chamber, which
is, of course, contrary to standard procedure. The
identity of the person who packed the Uzi is not now
known.
You will be advised as soon as additional
information is available.
i
FORD
GERALD
LIBRARY
OF
DEPARTMENT THE THE TREASURY
THE DEPARTMENT OF THE TREASURY
1789
WASHINGTON, D.C. 20220
ASSISTANT SECRETARY
October 11, 1974
MEMORANDUM FOR: The Honorable Donald Rumsfeld
Assistant to the President
The Honorable Philip W. Buchen
Counsel to the President
FROM:
David R. Macdonald?
Assistant Secretary (Enforcement,
Operations, and Tariff Affairs)
SUBJECT:
Investigatory Report -- Kissinger
Aircraft Incident
At Secretary Simon's request and following
up on my prior memo, attached is the first
investigatory report of the weapon incident in
connection with Secretary Kissinger's aircraft.
Apparently Special Agent Bothe had loaded the
weapon and taped the grip safety, which is the
final method of preventing accidental discharge.
Investigation has commenced, but cannot be
completed prior to Secretary Kissinger's return
on October 16.
Attachment
:
(1)
FORD
LIBRAR
ITEM WITHDRAWAL SHEET
WITHDRAWAL ID 01234
Collection/Series/Folder ID
: 001900560
Reason for Withdrawal
:
NS, National security restriction
Type of Material
:
CAB, Cable (s)
Creator's Name
:
Secret Service Damascus
Receiver's Name
:
Secret Service Headquarters
Description
:
Investigation of Weapon Incident.
Creation Date
: 10/11/1974
Volume (pages)
: 2
Date Withdrawn
: 06/23/1988
I
Protection of
Kennedy
children
FORD is LIBRARY GERALD
Department
to, Philip Buchen
of the Treasury
Under Secretary
room
date, 10/17
toa show
files
Phil:
Attached is a copy of the letter
which we sent in reply to the letters
that have been received concerning
the Secret Service protection of the
Kennedy children.
Edward SP Schmults
Attachment
Ressofile. file.
LIBRARY GERALD s. FORD
Edward C. Schmults
room 3430
ext. 5363
OF
DEPARTMENT THE 1789 TREASURY
THE
THE UNDER SECRETARY OF THE TREASURY
WASHINGTON, D.C. 20220
OCT 17 1974
Dear Mr. McGregor:
Philip W. Buchen has asked me to acknowledge and
thank you for your letter of September 27, regarding
Secret Service protection that was provided recently for
a seven-day period for certain of the children of the
late Senator Robert Kennedy in the Boston area. A child
of Mrs. Patricia Kennedy Lawford who is a roommate of one
of the Kennedy children was also protected for a short
time during that period.
Protection was requested because of a kidnap threat
against the children. After a review by the Secret
Service and Treasury of the facts and consultation by
Treasury with the White House, Secretary Simon ordered
protection.
Although the protection extended was not specifically
authorized by the protective statute, Section 3056 (a) of
Title 18 of the U.S. Code, the statute itself is not
regarded as exclusive. There exists Executive authority
to provide temporary Secret Service protection in certain
emergency situations where such action is reasonable and
in the public interest. We at Treasury regarded the
factual circumstances of this case as falling within these
criteria.
I appreciate your concerns about providing the Secret
Service protection in question. While we feel that the
action which was taken was warranted, we understand how
you can differ with the judgment that was made.
Sincerely,
Edward
Edward C. Schmults
Mr. Rodney McGregor
310 Arballo Drive
San Francisco, California 94132
FORD is LIBRARY
Thursday 9/26/74
11:50 Attached are the copies sent over by Mr. Schmults'
office -- as requested. (Temporary Secret Service
protection for Kennedy children)
LIBRARY GERALD F. FORD
DEPARTMENT OF THE
THE 1789 TREASURY
THE SECRETARY OF THE TREASURY
WASHINGTON
SEP 241974
Dear Mr. Buchen:
This is to confirm the telephone conversation of
September 13 between yourself and Under Secretary
Schmults with regard to the kidnap threat against the
Kennedy children in the Boston area. Protection was
requested by Mrs. Ethel Kennedy.
The Secret Service has advised me on the after-
noon of September 20 that the threat had been aborted.
Protection was accordingly terminated, after notifi-
cation to Mrs. Kennedy, on that date.
The Secret Service has requested for their files
memoranda of approval from you to the Secretary of the
Treasury and from me to Director Knight. Attached is
a memorandum for your signature indicating such approval.
With kind regards,
Sincerely yours,
(Signed) Bill Simon
William E. Simon
The Honorable
Philip W. Buchen
Counsel to the President
The White House
Washington, D.C. 20500
LISEASE GERALD ? FORD
MEMORANDUM FOR: William E. Simon
Secretary of the Treasury
FROM:
Philip W. Buchen
Counsel to the President
SUBJECT:
Temporary Secret Service Protection
of Seven (7) Kennedy Children
This is to confirm that the Secret Service
protection of the following Kennedy children was
authorized on September 13, 1974, on a temporary basis
pending resolution of a threat received to kidnap one
of the Kennedy children in the Boston area:
Joseph Kennedy
Kerry Kennedy
David Kennedy
Courtney Kennedy
Robert Kennedy
Christopher Lawford
Michael Kennedy
I understand that the protection was terminated on
September 20, 1974, following receipt of advice that
the threat had been aborted.
GEBALD LIBRADA ? FORD
HWCohen:chl:9/20/74:ECSchmu1ts:mk:9/23/74
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
September 25, 1974
MEMORANDUM TO PHIL BUCHEN
FROM:
JOHN W. HUSHEN
SUBJECT:
Secret Service Protection of Ethel Kennedy's Children
Joe Spear of the Jack Anderson column is aware of the fact that Secret
Service was used to protect Ethel Kennedy's children following the
kidnap threat. He says he has talked to Bill Simon, Treasury, who
said that he passed the question on to you as to the authority to order
the protection.
Spear's questions are:
1. Who made the decision?
2. Was the President actually aware of the decision?
3. What were the considerations for using the Secret Service,
which appears to be a violation of the law?
The Anderson column regarding this matter will be sent out about noon
tomorrow (Thursday), so if we are going to have any response, I have
to get back before then. (Phone: 483-1442)
BERRLO FORD LIBRARY
OF
THE TREASURY THE
THE SECRETARY OF THE TREASURY
WASHINGTON 20220
1789
SEP 24 1974
Dear Mr. Buchen:
This is to confirm the telephone conversation of
September 13 between yourself and Under Secretary
Schmults with regard to the kidnap threat against the
Kennedy children in the Boston area. Protection was
requested by Mrs. Ethel Kennedy.
The Secret Service has advised me on the after-
noon of September 20 that the threat had been aborted.
Protection was accordingly terminated, after notifi-
cation to Mrs. Kennedy, on that date.
The Secret Service has requested for their files
memoranda of approval from you to the Secretary of the
Treasury and from me to Director Knight. Attached is
a memorandum for your signature indicating such approval.
With kind regards,
Sincerely yours,
Biller William E. Simon
The Honorable
Philip W. Buchen
Counsel to the President
The White House
Washington, D.C. 20500
GERALD LIBRARY FORD
THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR: William E. Simon
Secretary of the Treasury
FROM:
Philip W. Buchen
Counsel to the President
SUBJECT:
Temporary Secret Service Protection
of Seven (7) Kennedy Children
This is to confirm that the Secret Service
protection of the following Kennedy children was
authorized on September 13, 1974, on a temporary basis
pending resolution of a threat received to kidnap one
of the Kennedy children in the Boston area:
Joseph Kennedy
Kerry Kennedy
David Kennedy
Courtney Kennedy
Robert Kennedy
Christopher Lawford
Michael Kennedy
I understand that the protection was terminated on
September 20, 1974, following receipt of advice that
the threat had been aborted.
BLEALB FORD LIBRARY
THE
TREASURY TRI 183
OFFICE OF THE SECRETARY OF THE TREASURY
1789
WASHINGTON, D.C. 20220
September 16, 1974
MEMORANDUM FOR: HONORABLE PHILIP W. BUCHEN
COUNSEL TO THE PRESIDENT
FROM:
Edward C. Schmults
Under Secretary
as
David R. Macdonald
DRM
Assistant Secretary (Enforcement,
Operations, and Tariff Affairs)
SUBJECT:
Status Report regarding Protection
of Ethel Kennedy's Children
As a result of our discussions last week, the
Secret Service determined that some protection
should be accorded on an emergency basis to six of
the children of Robert Kennedy. We are now in the
process of ascertaining and providing for alterna-
tive security arrangements for Mrs. Kennedy, in
order that the Secret Service agents protecting
the children may be withdrawn.
FORD & LIBRARY QERALD
SEPARTMENT OF THE
THE 1789 TREASURY
OFFICE OF THE SECRETARY OF THE TREASURY
WASHINGTON, D.C. 20220
September 16, 1974
MEMORANDUM FOR: HONORABLE PHILIP W. BUCHEN
COUNSEL TO THE PRESIDENT
FROM:
Edward C. Schmults
Under Secretary /S/
David R. Macdonald /s/David R. Macdonald
Assistant Secretary (Enforcement,
Operations, and Tariff Affairs)
SUBJECT:
Status Report regarding Protection
of Ethel Kennedy's Children
As a result of our discussions last week, the
Secret Service determined that some protection
should be accorded on an emergency basis to six of
the children of Robert Kennedy. We are now in the
process of ascertaining and providing for alterna-
tive security arrangements for Mrs. Kennedy, in
order that the Secret Service agents protecting
the children may be withdrawn.
FORD i LIBRARY QERALD
THE WHITE HOUSE
WASHINGTON
October 24, 1974
draft
computer over your
MEMORANDUM FOR:
PHIL BUCHEN
JACK MARSH
no.
FROM:
BILL CASSELMAN
Marty Hoffman has requested OMB approval of the attached
letter to Congressman Jack Brooks commenting on
H.R. 11499, as recently reported by House Judiciary Sub-
committee No. 2 (Donohue). This bill deals with
expenditures for Secret Service protection on other than
government property. As modified, neither Stan Ebner,
Lynn May (Domestic Council) nor I have an objection to the
letter.
You should be aware that by sending this letter, the
Administration will be continuing a major policy dispute
between DOD and Treasury over a relatively minor issue -
reimbursement by Secret Service for security expenditures
of other agencies made upon request of the Secret Service.
Both agencies will likely try to get a policy decision rendered
at the highest possible level. Even so, DOD should have an
opportunity to express their views to the Committee.
Secret Service, with White House/OMB approval, recently
testified that the issue of reimbursement was under study
within the Executive Office of the President. It is necessary
therefore that we eventually go beyond allowing DOD to send
this letter stating their views and develop an Administration
position with respect to reimbursement. This is an issue
where the Administration can take the initiative. OMB
should be requested to identify the budget figures involved
GERALD FORD LIBRARY
- 2 -
in this issue in order that the policy can eventually be
determined. Whatever the final decision is to be, it
can be implemented in the budget to be submitted to
Congress in January.
Secret Service's strongest argument is that if their
budget were to reflect all such security expenditures
that they would be more subject to political pressures
for budget cuts. This is obviously not a position that
could be represented to the Congress. On the other
hand, DOD's position is based on the accepted manage-
ment principle derived from the Economy Act. When,
as now, economic considerations dictate against potentially
wasteful arrangements, exceptions to the general rule
should be made only in particularly compelling circum-
stances. While their budget might substantially increase
as a result of the DOD approach, the ability of the
Secret Service to provide effective security protection
would not be impaired.
DOD is particularly anxious for some word on the status of
their letter.
cc:
Stan Ebner
Mr. Areeda
Mr. Lazarus
Lynn May
GERALD FORD LIBRARY
Both of these
already in file
jemp GENAL R. FORD LIBITARY
EPS
October 29, 1974
FOR:
H. Stuart Knight
Director, Secret Service
FROM:
Philip W. Buchen
SUBJECT: White House Security Fund
I have received a copy of a memorandum from Chief Drescher,
Executive Protective Service, to Clinton Hill, Assistant Director
Protective Forces, dated October 3, 1974, in which it is requested
that necessary steps be taken to dissolve the White House Security
Fund. I am also in receipt of a memorandum from Mr. Hill to
me, as Counsel, dated October 21, 1974, pointing out that under
Section IX of the By-Laws of the White House Security Fund, the
Counsel to the President must agree to the dissolution of this Fund.
As a member of the committee, referred to in Section IX of the
By-Laws of the White House Security Fund, this is to inform you
that I agree and concur in the decision to dissolve the Fund and
transfer any remaining moneys, after the payment of any debts,
to Heroes Incorporated.
PWB:JF:em
FORDO : GERALD Library
October 29, 1974
FOR:
H. Stuart Knight
Director, Secret Service
FROM:
Philip W. Buchen
SUBJECT: White House Security Fund
I have received a copy of a memorandum from Chief Drescher,
Executive Protective Service, to Clinton Hill, Assistant Director
Protective Forces, dated October 3, 1974, in which it is requested
that necessary steps be taken to dissolve the White House Security
Fund. I am also in receipt of a memorandum from Mr. Hill to
me, as Counsel, dated October 21, 1974, pointing out that under
Section IX of the By-Laws of the White House Security Fund, the
Counsel to the President must agree to the dissolution of this Fund.
As a member of the committee, referred to in Section IX of the
By-Laws of the White House Security Fund, this is to inform you
that I agree and concur in the decision to dissolve the Fund and
transfer any remaining moneys, after the payment of any debts,
to Heroes Incorporated.
PWB:JF:em
LIBRARY GERALD R. FOND
MEMORANDUM
OF CALL
TO:
Evo
YOU WERE CALLED BY-
YOU WERE VISITED BY-
OF (Organization)
Miss Lusky
Secret Soo
PHONE NO.
PLEASE CALL
CODE/EXT.
2376
WILL CALL AGAIN
IS WAITING TO SEE YOU
RETURNED YOUR CALL
WISHES AN APPOINTMENT
MESSAGE
LIBRARY GERALD R. FORD
RECEIVED BY
DATE
TIME
STANDARD FORM 63
GPO :1969-c48-16-8034171 11/1 332-389
0940
63-108
REVISED AUGUST 1967
GSA FPMR (41 CFR) 101-11.6
G/E
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FORD is LIBRARY
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MEOR
GERALD LIBRARY 4. FORD
32uoH STIHW 3HT
E Na MOTORINEAN - returned
to Mr Snow
Do you have
you don't
a copy BERALD then R. FORD LIBRARY
want this
Em
One copy of this form must
DATE OF DISPATCH
DEPARTMENT OF THE TREASURY
remain affixed to document(s)
CLASSIFIED DOCUMENT
transmitted herewith.
Oct. 29, 1974
DATE RECEIVED
SUSPENSE DATE
LOG NO.
ACCOUNTABILITY RECORD
SECTION A- GENERAL
TO:
FROM:
Philip W. Buchen
Robert R. Snow
Counsel to the President
Special Agent in Charge
Technical Security Division
Rm. 23, Old Exec. Ofc. Bldg.
CONTROL OR
CLASSIFI-
DATE OF
DESCRIPTION (Identify Items such as Report, Letter, Memo. Etc.
NO. OF
FILE NO.
DOCUMENT
Unclassified Subject or Short Title, Copy Number and Number of
ORIGINATOR
CATION
COPIES
Attachments)
SS-160-74-
Secret
10/29/74
Position Paper: Escort of USSS Dir.,
1
279
personnel by military while
USSS
(cy 2 of 5)
working at Camp David
SECTION B - INTERNAL ROUTING
TO
COPY
DATE
PRINTED NAME
SIGNATURE
NO.
1.
2.
3.
4.
5.
SECTION C — REPRODUCTION AUTHORITY
NO. OF COPIES
AUTHORIZED BY
SIGNATURE
REPRODUCED
DATE
(Printed or typed name)
SECTION D - DESTRUCTION CERTIFICATE
MATERIAL DESCRIBED HEREIN HAS BEEN (Check appropriate block):
DESTRUCTION RECORD NO.
PAGE OR COPY NO.
DESTROYED
TORN AND PLACED IN A CLASSIFIED WASTE CONTAINER (Burn bag)
PRINTED NAME OF CERTIFYING/DESTRUCTION OFFICIAL
SIGNATURE
DATE
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SIGNATURE
DATE
SECTION E - TRACER ACTION
SIGNED COPY OF RECEIPT FOR MATERIAL DESCRIBED ABOVE HAS NOT BEEN RECEIVED.
PLEASE ACCOMPLISH APPROPRIATE SPACE IN SECTION F AND RETURN.
DOCUMENT(S) HAVE NOT BEEN RECEIVED
SECTION Day RECEIPT ACTION
RECEIPT OF DOCUMENT(S) ACKNOWLEDGED
Jay (Typed I or FRench printed name) fathers
11/4/74
(Signature)
REMARKS:
LIBRARY
(Date)
TREASURY FORM NO. 2747
Return Original to Sender
ADMIN. CIR. NO. 242
(SEE INSTRUCTIONS ON REVERSE SIDE)
THE WHITE HOUSE
11/7
WASHINGTON
TO:
PHIL BUCHEN
FROM: GEOFF SHEPARD
FYI XXX
COMMENT
FORD LIBRARY
Bucher
EXECUTIVE OFFICE OF THE PRESIDENT
F41
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
NOV 1 1974
MEMORANDUM FOR DWIGHT INK
General Services Administration
Subject: Protection of the New Executive Office Building
This is to confirm the decision that responsibility for protecting the
New Executive Office Building (NEOB) will be transferred from the U.S.
Secret Service to the General Services Administration for a period of
30 days. In order to release Executive Protective Service personnel
for interim requirements in New York City in connection with activity at
the United Nations in the month of November, the General Services
Administration will begin guarding the NEOB at 8:00 a.m. Wednesday,
November 6, 1974, and will maintain the same level of protection as
previously provided by the Secret Service.
Mrs. Velma Baldwin, Assistant to the Director for Administration will
be the OMB contact for working out the details of this interim transfer
of protection responsibility.
(signed) Wally
Walter D. Scott
Associate Director for
Economics and Government
GERALD LIBRARY FORD
CC:
EGG-GSA Files
GSA chron
Director's Copy
Mr. Scott
Mr. Bray (2)
Mr. O'Neill
Mr. Shepard/
Ms. Velma Baldwin
Mr. Buchen
return, Mr. Ambrust
EGG:EArmbrust:sb 11/1/74
Secret
Service
Tuesday 11/12/74
7:50 One day recently, I had a call from Lee Garrick of the (612) 222-5011
St. Paul Dispatch saying that last Saturday a man came into
their newsroom and left some information. Mentioned
a Charles A. Lindberg Memorial Research Center to be dedicated
in St. Paul. Groundbreaking to be done by Governor
Wendell Anderson and the President ----- said he was Byron Eugene
Young, of Buck Unlimited Ltd. c/o Philip Buchen,
I called Rustand's office and found nothing there concerning
a possible invitation,
Suggested to Mr. Garrick he might contact Governor Anderson's
office; he already had.
Later the same day a Sgt. Opheim of the St. Paul Police (612) 291-1111
called to say that a manyhas been contacting their colleges
Ext. 330
re a foundation of sorts -- I gave him the name of the
above person and he said that was the one.
Told him
we had a previous call.
I told him I would contact the
Secret Service and have them call him.
I gave Secret Service the numbers.
FORD is LIBRARY GERATE
DEPARTMENT OF THE TREASURY
UNITED STATES SECRET SERVICE
WASHINGTON, D.C. 20223
OFFICE OF THE DIRECTOR
620.11
November 14, 1974
MEMORANDUM FOR : Philip Buchen
Counsel to the President
FROM
: David H. Martin
DHM
Legal Counsel
SUBJECT
: Rental of the President's House in Alexandria
Bill Casselman called me this morning regarding the above
captioned subject and requested a clarification of the Secret Service
position regarding the future use of the command post located there.
Apparently, the President has indicated that he may utilize this house
as his residence in the future. Based on that information, the Secret
Service feels that the command post should not be physically altered into
a garage, but should remain as is for future utilization. As I under-
stand it, the toilet facility, the walls and the rug would remain; the
stove and refrigerator would be reclaimed by the General Services
Administration.
Another minor matter that has arisen and which I discussed
with Bill, is painting the walls and cleaning the rugs in the command
post as requested by the realtor handling the leasing of the residence.
We do not feel that these matters fall within the authority or res-
ponsibility of the Secret Service. Further, in view of recent Congressional
interest in Secret Service expenditures of this nature and also the
requirement of Congressional appropriation committees for the Secret
Service to account for protective expenditures on a quarterly basis, we
feel that the Secret Service should not assume these expenses.
If I can be of further assistance, please call me at 964-8208,
or Code 184, extension 8208.
FORD
GERALD
LIBRARY
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
Bor
November 21, 1974
FOR:
Philip W. Buchen
FROM:
Jay T. French
SUBJECT: Confidentiality of United States Secret Service Materials
The Freedom of Information Act, Section 552 of title 5, provides ample
grounds to refuse to disclose information concerning measures taken
by the Secret Service to protect the President pursuant to Section 3056
of title 18. In particular, of the nine exemptions from disclosure
in the law, four would seem appropriate to claim in this instance.
They are set forth below:
1) matters specifically required by Executive order to be kept
secret in the interest of the national defense or foreign policy;
2) matters related solely to the internal personnel rules and
practices of an agency;
3) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency; or
4) investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an
agency.
In checking with Secret Service, I learned that some materials are
classified "confidential. " The first exemption could be claimed to
withhold these materials classified under Executive Order No. 11652,
March 8, 1972, as amended by Executive Order No. 11714, April 24, 1973.
GERALD LIBRARY ? FORD
2
The second exemption relating solely to the internal personnel rules and
practices of any agency, is "meant to relate to those matters which are
for the guidance of agency personnel only, including internal rules and
practices which cannot be disclosed to the public without substantial
prejudice to the effective performance of a significant agency function. 11
Attorney General's memorandum on the Public Information section
of the Administrative Procedure Act, United States Department of
Justice, June 1967. A great many Secret Service materials would
seem to be protected from disclosure by this clause.
The third exemption referring to certain memorandums or letters
generally applies to findings and recommendations prepared by a
subordinate in order to inform and advise a superior. This exemption
should be helpful, as well as the fourth exemption dealing with investi-
gatory files. As part of its protection duty, the Secret Service does
perform investigations. The results of these investigations would not
have to be disclosed.
Executive privilege could also be advanced as a reason for refusing to
disclose. Under Section 3056 of title 18, the Secret Service is directed
to protect foreign Heads of State and government. Our national
security is directly effected by the success with which we carry out
each such mission. Disclosure of protective measures used to protect
the President of the United States would certainly jeopardize the similar
protection provided to these Heads of State and government. However,
executive privilege must be specifically invoked by the government, and
there is authority that it is only a valid defense when expressly invoked.
Soucie V. David, 1971, 448 F 2d 1067, 145 U.S. App. D. C. 144.
This memorandum is intentionally brief. I will be pleased to expand it
in whole or in part.
FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
Thought you would
le interes ted in
the six (6) reasons
for refusing to
disclose in the
Forcade Case. FORD LIBRARY
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS FORCADE
)
and ROBERT SHERRILL,
)
)
Plaintiffs,
)
)
V.
)
Civil Action No. 1258-73
)
H. STUART KNIGHT, et al.,
)
)
Defendants.
)
)
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUP-ORT OF DEFENDANTS" MOTION FOR A
STAY OF DISCOVERY PENDING DISPOSITION
OF DEFENDANTS' PENDING MOTION TO DISMISS
OR FOR JUDGMENT ON THE PLEADINGS, OR,
IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT AND PLAINTIFFS' PENDING
MOTION FOR SUMMARY JUDGMENT
Statement
Plaintiffs were summarily denied White House press passes on
the ground that they constitute a potential threat to the physical
safety of the President. Following an unsuccessful attempt,
administratively, under the Freedom of Information Act, 5 U.S.C.
$552, to obtain all records, orders and opinions stating the reasons
for the denials of the press passes, plaintiffs filed this action
seeking an order of this Court restraining the defendants from
continuing to refuse to grant the plaintiffs accreditation as
journalists to attend White House press conferences and briefings.
After the defendants answered the Complaint, the plaintiffs
commenced discovery serving numerous interrogatories on the
defendants and requesting the production of numerous documents.
The defendants answered in part and objected in part to the
interrogatories and produced certain of the documents and objected
to the production of others.
Plaintiffs thereafter moved for summary judgment, or, in the
alternative, for an order compelling discovery. The defendants
FORD : LIBRARY
have moved for dismissal of the action or for judgment on the
pleadings, or, in the alternative, for summary judgment; and have
separately moved for a stay of all pending discovery pending the
Court's ruling on plaintiffs' motion for summary judgment and
defendants' alternative motion to dismiss or for judgment on the
pleadings or for summary judgment.
-2-
BERRA FORD LIBRARY
Discussion
This action presents the legal issue of whether the defendants
may summarily deny White House press accreditation without a hearing
and without advice as to the specific grounds for exclusion to
journalists who are determined after a Secret Service investigation
to constitute a potential threat to the physical safety of the Presi-
dent and/or members of his immediate family.
The defendants' denial action was made ex parte. There has, of
course, been no confrontation or cross-examination of witnesses.
There was no "case adjudication" within the meaning of 5 U.S.C.
$552 (a) (2) (A)
There are no published guidance criteria for the application of
defendants' standard of denying press accreditation to anyone deemed
to constitute a potential threat to the physical safety of the
President. Here, in accordance with its established practice, the
Secret Service, on a case-by-case basis, made its determination,
based on its experience and expertise in protective matters, as to
whether plaintiffs as applicants for a press pass might be a threat
to the physical security of the President or his immediate family.
To ascertain the factual basis for the defendants' denial
action and to ascertain, empirically, the factors considered by the
defendants in denying White House press accreditation, plaintiffs
addressed numerous interrogatories to the defendants and requested
that they produce numerous documents.
The defendants' objections to plaintiffs' requested discovery,
which are incorporated herein by reference, fall into the following
major categories:
1. Plaintiffs are not entitled to adjudicate the denial to
them of White House press accreditation and they lack standing to
request information concerning denial actions, either as to them-
selves or others.
2. The investigative files and related reports and records of
FOR
the Protective Intelligence Division of the United States BERAZU Secret
-3-
LIBRART
Service and the Federal Bureau of Investigation are privileged
from discovery in the public interest in that disclosure would
reveal sources of information and investigative techniques and
procedures thereby seriously impairing and jeopardizing statutory
Secret Service and Bureau functions and the ability of such
agencies to conduct future investigations.
3. To the extent plaintiffs seek the production of intra-
agency and inter-agency memoranda, such records are privileged
from disclosure in the public interest to ensure the full and
frank exchange of advice and recommendations necessary to the
performance of agency functions.
4. To the extent plaintiffs seek the production of records
other than those pertaining to the denial of White House press
accreditations to plaintiffs, the records sought are not relevant
to the subject matter involved in the pending action and are,
therefore, not subject to discovery under Rule 26 (b) of the
Federal Rules of Civil Procedure.
5. To the extent plaintiffs seek the production of records
other than those pertaining to the denial of White House press
accreditations to plaintiffs, such records are privileged from
disclosure in the public interest to prevent prejudice to the
rights of third parties.
6. The records sought are not readily available. Neither
the White House Press Office nor the Secret Service maintains a
separate record of applications for accreditation which have been
denied and the reasons thereof. To locate such records would
require a review of the files maintained in the White House-
central files and the files maintained by the Secret Service
Office of Protective Intelligence. To produce the documents
requested would be unduly oppressive, expensive, and burdensome,
-4-
BERRED FORD LIBRARY
and an unwarranted interference and disruption of the normal
functions of the White House Press Office and Secret Service. In
the public interest, production should not be required in the
absence of an express showing by the plaintiffs of the necessity
for the expenditure of public funds for such records search.
In this connection the Secret Service estimates that it would
require the expenditure of approximately $100,000 in man-hours to
compile the remaining information sought by the plaintiffs.
The defendants have suggested that the Court defer plain-
tiffs' Rule 37 motion until the principal issue presented in
plaintiffs' motion for summary judgment and defendants' alternative
motion to dismiss or for judgment on the pleadings or for summary
judgment is resolved.
If the defendants may summarily deny White House press
accreditation without the issuance of charges or other procedures
normally attendant to adversary agency adjudications, which, in our
view, they may, then none of the outstanding discovery which is the
subject of plaintiffs' Rule 37 motion is germane to this action.
And if plaintiffs are entitled to judicial review of the denial
action, the factual bases for denial actions are set forth in the
in camera exhibit filed herewith in support of defendants' mction
for summary judgment, and further discovery in the matter is
unnecessary to judicial review of the agency action for sufficiency
of the evidence.
Thus the defendants' motion for a stay in no way prejudices
the plaintiffs, while at the same time it excuses the defendants
from possibly unnecessary discovery. It has long been recognized
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LIBRARY GERALD ? FOND
that where, as here, one or more principal issues may be deter-
minative of the case, the Court may exercise its discretion to
delay discovery until the critical question has been decided. See,
Sinclair Refining V. Jenkins Petroleum Process Co., 289 U.S. 689,
693-694 (1933) ; see also, Wright, Federal Courts (2nd Ed. 1970),
$83. Courts have regularly exercised this discretion in a variety
of circumstances to delay discovery pending resolution of the
dispositive issue in the litigation, see, e.g., Polaroid Corp. V.
Commerce International Co., 20 F.R.D. 394, 395 (S.D. N.Y. 1957),
and upon the posture of the present case -- where a determination
by the Court holding the defendants' summary denial action to be
non-reviewable would warrant dismissal of the action; or where,
alternatively, a determination by the Court that there is
a sufficient and rational factual basis for the denial action would
warrant summary judgment for the defendants without more -- such a
stay is imminently proper.
Thus, for the foregoing reasons, the defendants' motion for a
stay of all present and future discovery in the present action
pending this Court's resolution of the plaintiffs' motion for
summary judgment and the defendants' alternative motion to dismiss
or for judgment on the pleadings or for summary judgment should be
granted.
Respectfully submitted,
,
HENRY E. PETERSEN
Assistant Attorney General
EDWARD S. CHRISTENBURY
Attorney, Department of Justice
Benjaniu CHannagan
BENJAMIN C. FLANNAGAN
Attorney, Department of Justice
Washington, D.C. 20530
Telephone: 202/739-3032
Attorneys for Defendants
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DERALD FOND LIBRARY
CERTIFICATE OF SERVICE
I certify that on this date I served a copy of the foregoing
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANTS' MOTION FOR A
STAY OF DISCOVERY PENDING DISPOSITION
OF DEFENDANTS' PENDING MOTION TO DISMISS
OR FOR JUDGMENT ON THE PLEADINGS, OR,
IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT AND PLAINTIFFS' PENDING
MOTION FOR SUMMARY JUDGMENT
upon all plaintiffs by mailing copies thereof to the following
counsel of record.
JOHN H. F. SHATTUCK, ESQUIRE
MELVIN L. WULF, ESQUIRE
JOEL M. GORA, ESQUIRE
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
MS. HOPE EASTMAN
American Civil Liberties Union
Washington Office
410 First Street, S.E.
Washington, D.C. 20003
June 21, 1974
BENJAMIN C. FLANNAGAN
Attorney, Department of Justice
Washington, D.C. 20530
Telephone: 202/739-3032
FORD - BERALD LIGRARY
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS FORCADE
)
and ROBERT SHERRILL,
)
)
Plaintiffs,
)
)
V.
)
Civil Action No. 1258-73
)
H. STUART KNIGHT, et al.,
)
)
Defendants.
)
)
ORDER
Upon consideration of defendants' motion for a stay of dis-
covery pending disposition by the Court of defendants' pending
motion to dismiss or for judgment on the pleadings, or, in the
alternative, for summary judgment and plaintiffs' pending motion
for summary judgment, and it appearing to the Court that such
motion should be granted and discovery stayed pending resolution of
the issues presented in the respective motions to avoid the time
and expense involved in any inquiry into matters which may prove to
be unnecessary, it is, therefore, by the Court this
day
of June, 1974:
ORDERED that defendants' motion for a stay of discovery pending
disposition by the Court of defendants' pending motion to dismiss or
"
for judgment on the pleadings, or, in the alternative, for summary
judgment and plaintiffs' pending motion for summary judgment be, and
the same hereby is, granted; and it is
FURTHER ORDERED that the time within which the defendants may
respond to plaintiffs' motion under Rule 37, F.R.Civ.P., for an
order compelling discovery be, and the same hereby is, enlarged for
the duration of this stay and thereafter to a date to be fixed by
order of the Court, should the action not be resolved upon the
hearing on the respective motions of the parties aforesaid.
United States District
BERAAD Judge FORD OFIBRANI
CERTIFICATE OF SERVICE
I certify that on this date I served a copy of the foregoing
proposed ORDER
upon all plaintiffs by mailing copies thereof to the following
counsel of record.
JOHN H. F. SHATTUCK, ESQUIRE
MELVIN L. WULF, ESQUIRE
JOEL M. GORA, ESQUIRE
American Civil Liberties Union
Foundation
22 East 40th Street
New York, New York 10016
MS. HOPE EASTMAN
American Civil Liberties Union
Washington Office
410 First Street, S.E.
Washington, D.C. 20003
June 21, 1974
BENJAMIN C. FLANNAGAN
Attorney, Department of Justice
Washington, D.C. 20530
Telephone: 202/739-3032
71
DERALD FORD LIBRARY
DEPARTMENT OF THE TREASURY
UNITED STATES SECRET SERVICE
DIRECTOR
WASHINGTON, D.C. 20223
November 26, 1974
MEMORANDUM
To
:
David R. Macdonald
Assistant Secretary
(Enforcement, Operations and Tariff Affairs)
Subject :
Federal Office Building #7
On Wednesday, November 6, 1974, the Executive Protective Service
(EPS) terminated coverage of Federal Office Building #7, and
transferred this responsibility to the Federal Protective Service
(GSA) for a period of 30 days. This action was necessitated by
increased manpower demands in the Washington Metropolitan Area
and additional EPS coverage for United Nations Missions in New
York City.
Evaluating our present programs in light of monetary and manpower
constraints with respect to the EPS, we have determined that we
are not in compliance with Title 3, Chapter 3, Section 202, U. S.
Code, with respect to Federal Office Building #7. Specifically,
the EPS mandate intends only those buildings in which Presidential
offices are located to be afforded EPS protection. Providing
minimum security for Federal Office Building #7 requires 25 EPS
Officers at a cost of $345,633 annually. We do not feel that
Federal Office Building #7 meets the criteria set forth in the
U. S. Code. Attached for your consideration is the opinion of
Legal Counsel on this subject.
In order to utilize existing EPS manpower in meeting its defined
responsibilities in connection with the protection of Foreign
Diplomatic Missions, it is recommended that EPS not return to
duty at Federal Office Building #7, and that Treasury pursue the
permanent transfer of this responsibility to. the Federal Protective
Service (GSA).
H.S. Knight
Director
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CC: Mr. Philip Buchen - White House Legal Counsel
Mr. Geoffrey C. Shepard - Domestic Counsel
Mr. David Bray - OMB
FORD
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LIBRARY
OPTIONAL FORM NO. 10
MAY 1002 EDITION
GSA FPMR (ii CFR) 101-11.5
UNITED STATES GOVERNMENT
or
Q
Memorandum
U.S. Secret Service
ingl
TO
: AD - Protective Forces
DATE:November 14, 1974
FROM : Legal Counsel D/1721
601.0
SUBJECT: Title 3, U.S. Code, section 202, Executive Protective
Service
On October 23, 1974, your Office requested a legal
interpretation of subparagraph (2) and subparagraph (3)
of section 202 of title 3, U. S. Code.
Subparagraph (2) of this section states "subject
to the supervision of the Secretary of the Treasury, the
Executive Protective Service shall perform such duties
as the Director, United States Secret Service, may prescribe
in connection with the protection of the following: (2)
any building in which Presidential offices are located;".
The legislative history of Public Law 91-217 reveals no
discussion regarding subparagraph (2). It is our opinion,
however, that the Congressional intent of this section
was to include only those offices in the "White House
complex," the White House and the Old Executive Office
Building; and places such as Camp David or a private
residence where the President might frequent on a regular
basis and where his offices might be located. We feel
buildings such as the New EOB where the President does
not have an office nor ever does regular business were not
intended to be included within section 2; even though
such offices are called "Presidential offices". As
you know, there are other locations, including 1800 G
Street, that have offices designated as Presidential
offices. It would be stretching the literal wording
and common sense interpretation of subparagraph (2) to
incorporate within the meaning of section (2) all offices
known as "Presidential offices" not within the White House
complex.
Subparagraph (3) of Title III, section 202 reads as
follows: "subject to the supervision of the Secretary
of the Treasury, the Executive Protective Service shall
perform such duties as the Director, United States Secret
Service, may prescribe in connection with the protection
of the following: (3) the President and members of his
immediate family;".
&
FORD
BERALD
LIBRARY
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
The question presented was whether the EPS may be
utilized for protective functions not strictly related
to the White House. The wording of Title 3, section 202
(3) gives the Director some latitude and flexibility in
determining what duties the EPS shall perform. We feel,
therefore, that the EPS could legally be utilized to
perform a variety of protective functions connected with
the protection of the President and his family that
appropriately should be performed by a uniformed officer.
LIBRARY GEBALD FORD