Office of the Historian

1. Memorandum From the Assistant to the Counselor (Doyle) to Secretary of State Byrnes1

Washington, August 21, 1945.

SUBJECT

  • Preliminary Survey of Legal Problems Involved in Establishing New Intelligence Agency
1.
Future reliance upon the First War Powers Act to support an executive order transferring functions among agencies is probably illegal. Section 1 of Title I (the reorganization Title) contains the proviso: “That the authority by this Title granted shall be exercised only in matters relating to the conduct of the present war.” It is difficult to see how any reorganization at this time could meet this requirement.
2.
Even if this hurdle could be surmounted, a transfer which depended upon the First War Powers Act for validity would be short-lived. Title I is to remain in force during the war and “for six months after the termination of the war, or until such earlier time as the Congress by concurrent resolution or the President may designate.” And upon termination [Page 16] of Title I, all agencies, departments and offices “shall exercise the same functions, duties, and powers as heretofore or as hereafter by law may be provided, any authorization of the President under this Title to the contrary notwithstanding.”
3.
OSS can be abolished by the President at any time. It was established by Presidential letter of July 11, 1941, under the name of the Office of the Coordinator of Information. On June 13, 1942, by Presidential Military Order it was renamed OSS and transferred to the jurisdiction of the Joint Chiefs.
4.
If OSS were abolished, its functions would revert to the Joint Chiefs, or to the Army and Navy separately. The present functions of OSS are (a) to collect and analyze such strategic information as may be required by the Joint Chiefs, and (b) to plan and operate such special services as may be directed by the Joint Chiefs.

Recommendation: The proposed new intelligence agency, answerable to the Secretaries of State, War and Navy, should be created by executive order, based upon the Constitutional authority of the President as Chief Executive and Commander in Chief. No mention of the First War Powers Act should be made. The general theory underlying the order should be that State, War, and Navy all possess inherent and traditional authority to engage in intelligence operations, and that it is no usurpation of Congressional authority to amalgamate these functions in a single agency over which the three Departments will continue to exercise an equal measure of control.

  1. Source: National Archives and Records Administration, RG 59, Records of the Department of State, Decimal File 1945–49, 101.5/8–2145. Secret.↩