-

6~

-.
·-----
--
I

DECLASSIFIED
E.O. 13526, Sec. 3.5
NLJ l<l-t\
ASSIST ANT SECRETARY O F DEFENSE By C1S NARA, Date \(?,\ {11.._
WASHINGTON 25, D. C.

2 8 J/.\N 1966

INTERNATIONAL SECURITY AFFAIRS In- reply refer to:

I-35080/66

MEMORANDUM FOR THE ACTING GENERAL COUNSEL

SUBJECT: Department of Defense Directive TS-3000.1

For the reasons set forth below, this office does not concur in the
proposed reissuance of the subject Directive.

l. It is not clear what triggers the a ctivities authorized by the

Directive. From the draft proclamations contained in references (b )
and (c) of the Directive, it appears that the proclamations will not be
issued unless an (armed) "attack has been launched against the United
States. 11 Yet Sections II and IV of the Directive speak of "wartime
emergency, 11 which might or might not involve an attack launched a ga i nst
the United States. Moreover, the introduction of the different condit i on
points up the lack of clarity as to who is responsible for determi ning
whether the condition has been met. Section III, though summarizing
fairly the general content of references (b) and (c), does not remove
the uncertainty. In our opinion, the Directive should make clear that
(with the exception of advance planning arrangements mentioned- in IV.E )
it takes effect only upon the issuance of the two proclamations contained
in references (b) and (c).

2. One of the crucial phrases used frequently in the Directive i s

"persons deemed to be security risks. 11 This is vague language. I t does
not appear in either of the pertinent proclamations. Moreover, the
Directive nowhere specifies who is to make the security risk determi na tion.
Instead of "security risk, 11 the terminology employed in references (b )
and ( c) should be adhered to. And although the two proclamations may
authorize the Secretary of Defense and the Attorney General to delega te
their authority to determine what persons are dangerous to the public
safety, etc., this is such a crucial element of the entire process that
the Directive should make very clear to what officials or offices this
authority is delegated..

3. In Section IV .A, the phrase "within the geographic areas of such

conunands . • • 11 could be interpreted. to mean the whole world. It is
assumed that it is not intended to go beyond the general geogra phic
limitations set forth in Section III.C.2. This should be clarifi ed.

4. In Section IV.B.l (and its counterparts C.l and D.l), there is a

suggestion that if a "security risk" is employed at a base, the Service

R EPRO D UCTIO N OF THIS DOCUMENT

IN W HO LE OR IN PART IS PROHIBITED
Copy ____i _____ of ----9.------ Copies
EXCEPT \"/!TH PE R M ISS I ON OF T HE
. ..... , 11,r /' ~,-.. l r.-

Copy LBJ Library

 l_ _~I-------
·--

may if necessary apprehend. him even at a time when he is off-base, perhaps

in his home. Here again, it is assumed, based on Section III.C .2, that
this is not intended, and th9.t apprehension of such a person would be
authorized only within the limits of a U.S. base situated in a foreign
country. Even this, of course, could be considered a grave interference
with the sovereignty of another nat ion. Would it not be sufficient
simply to provide for the exclusion of such persons from any U. S. base
areas or installations?

5. In Section IV.B.2, dealing with foreign MAP trainees, the omission

of the phrase "in the continental United States" following "non-service
institutions" (contrary to the formulation in III.C.3) creates an impli-
cation, presumably unintended, that control overseas of MAP trainees
extends beyond the above-noted limits of Section III .C.2. Further, it is
not clear to us what basis there is in references (b) and (c) for the
assumpt ion by the Department of Defense of responsibility for alien MAP
trainees in the continental United States. Both these references appear
to assign to the Attorney General, without provision for exception, the
responsibility for enforcing and carrying out the proclamations, including
the issuance of regulations thereunder, within the continental United
States. In addition, IV.B.2 erects a set of rigid criteria which not
only find no basis in the parent proclamations but may easily be in con-
tradi.ction to the criteria otherwise applicable. This is particularly
true of subparagraphs a. and c., which ostensibly permit of no deviation.
For example, is the foreign national of an actively allied country to be
permitted to continue his training even if he is believed to be highly
dangerous to the United States? The answer is clearly no, yet subpara-
graph a. technically would exclude this answer. Most importantly, however,
though the deference to the office of ASD(ISA ) in subparagraph b. is
appreciated, it does not appear appropriate in a Directive of this nature
to single out a special group of persons to be judged by special criteria.
It would be interesting to know whether the implementing directive (if
any) of the Department of Justice singles out any similar group of aliens
(e.g., AID trainees, or cultural exchange personnel) as objects of special
consideration. Notwithstanding the perhaps more sensitive foreign policy
aspects of the treatment of "guests" of the United States Government, we
consider that the special provisions regarding MAP trainees can and should
be eliminated from the Directive.

6. With respect to Section V, "Disposition of Persons Taken Into Custody,"

we question whether the d.ispositions prescribed comply fully with the
direction in Section 2(b) of the proclamation contained in reference(c).

Finally, in view of the gravity of the ent i :'.'e sub ject, involving as it
does suspension of the writ of habeas corpus and of customary safeguards
against search and seizure, it is suggested that the draft proclama tions
themselves be reviewed again by the White House and the Attorney General.
It is noted in this connection that the sheet entitled "Current Background

Copy ___ L __ __ _ of ___ _51.__ __ __ Co pies

,., i ,,
• t)

Copy LBJ Library

 ;J

---- ' 1. --

Matters " in reference (c ) indicates that the latest Attorney General

opinion on the matter was rendered. in January, 1958, and that such
opinions were to be "updated and added to, as appropriate." We would
recomraend this action even if it should. be decided not to pursue
revision of the Directive currently in effect .

REPR OD UCTION OF THIS DOCUMENT Copy __ } _______ of __ __9______ Cop ies

IN WHOLE OR I~ PART IS PROH IBITED
. .~ ', ~ . -~

1·:;·;1111. ,
· 1· • ·t t : • .,. , .. 1~ ·
1 1 1 FIC..L
r11 , ...r- r J·t;~., , • i- 1- r . = Pa uo (" .....
"
\

Copy LBJ Library