Civil Rights, Cambodia, and Cuba: Memos That Made History

A newly released collection of legal documents reveals what high officials thought about the major events of their times.
Assistant Attorney General Nicholas Katzenbach (right) faces off against Governor George Wallace at the University of Alabama in 1963. In a memo, Katzenbach warned President Lyndon Johnson that bringing in federal troops would be "regarded by the public as provocative and might well give rise to more breaches of the peace than would otherwise occur." (Library of Congress)

Earlier this summer, the Justice Department released to the public a trove of old Office of Legal Counsel memos. My Atlantic colleague Conor Friedersdorf already has discovered them and written about the eternally regrettable OLC memo justifying the ignoble fate of Japanese Americans in 1942 as well as a 1937 memorandum in which an otherwise forgettable administration lawyer (Golden W. Bell) courageously (and correctly!) told President Franklin Roosevelt that he couldn't censor a foreign speech by the ill-fated Leon Trotsky.

Let me now add my voice to Conor's chorus. These memos are pure gold if you like history, or law, or politics, or some combination of the three. Here's how the Justice Department explained what they are and why they seem so relevant today:

Writings of OLC and its predecessors date back to 1933, but OLC did not begin publishing its opinions until January 1977. In this first volume of a new supplemental series, OLC is publishing a number of opinions written between 1933 and 1977. The volume includes at least one opinion from each Assistant Attorney General during that era, and several from former Chief Justice William Rehnquist and current Associate Justice Antonin Scalia.

Many of the opinions address legal issues related to significant historical events, including presidential action during World War II, the blockade of Cuba, U.S. incursions into Cambodia during the Vietnam War, and Watergate. And many involve legal issues that continue to have great relevance today, including appointment and removal of executive branch officers, executive privilege, the use of military force, and presidential control of communications during wartime.

Not only are these memos fascinating on their merits (see below), they also tell us a great deal about the way high officials spoke the language of the law back in the day -- and how that language has changed over the generations. The older memos tend to be shorter and much more succinct. The later memos tend to be longer -- just like the Supreme Court decisions they occasionally generated. Here are my five favorites (in no particular order) of true '"first drafts of history":

1. Use of Marshals, Troops and Other Federal Personnel for Law Enforcement in Mississippi (July 1, 1964)

Here one of the unsung heroes of the civil rights movement -- Nicholas Katzenbach, in his capacity as deputy attorney general -- is giving President Johnson cogent advice about the "practical" problems inherent in sending federal troops to the Deep South in the heat of the fight against racial segregation. Send in the FBI, Katzenbach argues, but don't send in the troops. Much of what Katzenbach told the White House -- and, remember, this was nearly one year before the August 1965 passage of the Voting Rights Act -- was based upon his first-hand observations of Southern intransigence. The introduction of federal authority into the South could both create and halt chaos -- and the feds knew it. From the memo:

There is another practical problem, however, which is the crux of the matter. The experience of the Department in the Oxford, Mississippi, crisis and in the several disturbances in Alabama convinced all those who participated that the most crucial factor in maintaining law and order in a community gripped by racial crisis is the support of state and local law enforcement officers. If they are clearly determined to support law and order, the prospects of violence are considerably reduced. If they encourage violence or abdicate responsibility for law enforcement functions, violence on a substantial scale is virtually certain to occur and the possibility of maintaining order by any means short of the use of federal troops becomes negligible.

Once local law enforcement ceases to function in any sizable area, the number of personnel required to maintain control without the actual use of weapons exceeds the manpower resources of every branch of the federal service except the military. It is essential, therefore, to encourage state and local law enforcement agencies to carry out their responsibilities and, if at all possible, to avoid using federal personnel in such a way so as to provide an excuse for abandonment of responsibility by such agencies. If marshals or agents of the Bureau are used in any obvious way as guards in Mississippi, without the active support and cooperation of local  officials, local law enforcement will tend to break down.

This is not merely because local officials resent the intervention of outsiders, although that is an obvious factor. The fact is that in Mississippi the use of federal law enforcement personnel, particularly marshals, is regarded by the public as provocative and might well give rise to more breaches of the peace than would otherwise occur. Particularly if the civil rights workers involved engage in demonstrations and other mass activities while accompanied by marshals, their function will soon cease to be one of preventing clandestine violence and become one of maintaining public order among considerable numbers of people over a large area. In that situation, our experience is that without the support of local officials the maintenance of order requires the use of troops.

2. Presidential Appointment of Justice Robert Jackson to Prosecute Axis War Criminals in Europe (July 2, 1946)

Even before Germany surrendered to the Allies in May 1945, President Harry S. Truman had appointed United States Supreme Court Justice Robert H. Jackson to "act as the representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories." Justice Jackson was an inspired choice for many reasons (and served his nation admirably during the Nuremberg trials) but his appointment initially raised some separation-of-powers concerns. In response, the Justice Department offered this:

It is hardly necessary to call attention to the fact that the undertaking involved-- the indictment, prosecution, and trial of the chief war criminals in Europe-- is of supreme importance to the whole civilized world. Nor is it necessary to point out that this grave undertaking is unique in the history of judicial procedure. It was, therefore, of the utmost importance that the Chief of Counsel for the United States be an exceedingly able man, of wide experience, of exceptional physical vigor, of peculiar aptitude for the task, and of great legal attainments. It was equally important that the President of the United States should be entirely free to select that citizen of the United States who he felt was best qualified to perform the duties of this office.

It must be conceded that Mr. Justice Jackson is eminently qualified to discharge the duties and responsibilities of the task assigned him. His record of accomplishment as Chief Prosecutor for the United States in the trial of war criminals now being conducted at Nuremburg (sic) speaks for itself. His record in this respect is, in fact, a complete justification of his appointment. The appointment of Justice Jackson for this special mission is not only without legal objection, but it is also supported by ample precedent. It is a well established practice for the President to secure the services of federal judges in connection with important national and international matters.

This practice arose long ago. It is well illustrated by the following examples: Chief Justice Jay served as special envoy to England at the request of the President. Chief Justice Ellsworth served as special envoy to France. Chief Justice Fuller twice acted as an arbitrator of international disputes. Circuit Judge Putnam served as a commissioner under a conference with Great Britain relating to the seizure of vessels in the Bering Sea. More recently, Justice Roberts served as chairman of the board appointed by President Roosevelt to investigate the Pearl Harbor disaster of December 7, 1941.

3. Presidential Authority to Permit Incursion Into Communist Sanctuaries in the Cambodia-Vietnam Border Area (May 14, 1970)

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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