146

Authority of Acting FBI Officials to 

Sign National Security Letters

Under the statutes authorizing the FBI to issue national security letters, the Director of the 

FBI may designate Acting Deputy Assistant Directors and Acting Special Agents in 

Charge to sign national security letters.

January 16, 2009

MEMORANDUM OPINION FOR THE GENERAL COUNSEL 

FEDERAL BUREAU OF INVESTIGATION

You have asked whether an official acting temporarily in the position 

of Deputy Assistant Director at the headquarters of the Federal Bureau of 

Investigation (“FBI”) or Special Agent in Charge of an FBI field office 

may sign national security letters (“NSLs”). By statute, NSLs may be 

issued by “[t]he Director of the Federal Bureau of Investigation, or his 

designee in a position not lower than Deputy Assistant Director at Bureau 

headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” E.g., 18 U.S.C. § 2709(b) (2006).1 We conclude 

that, under the NSL statutes, the Director of the FBI (“Director”) may 

designate Acting Deputy Assistant Directors and Acting Special Agents in 

Charge to sign NSLs.2

 

1 Memorandum for the Principal Deputy Assistant Attorney General, Office of Legal 

Counsel, from Valerie E. Caproni, General Counsel, Federal Bureau of Investigation 

(Mar. 27, 2008) (“FBI Memorandum”).

2 You also raise the question whether the conferral of authority to sign NSLs on Acting 

Deputy Assistant Directors and Acting Special Agents in Charge would square with the 

Appointments Clause; your memorandum assumes that the authority to sign NSLs implicates the Appointments Clause and that employees who sign NSLs must be appointed in 

accordance with that Clause. See FBI Memorandum at 6. We understand that the Director 

selects Acting Deputy Assistant Directors and Special Agents in Charge from among 

special agents and members of ‘the FBI Senior Executive Service, and that the authority 

to appoint these officials has been delegated (and, in some cases, redelegated) from the 

Attorney General to subordinate officials of the FBI. See id. at 1, 6–7. As our Office 

previously has stated, the “question whether [the head of a department may] delegate 

appointment authority to an officer below the head of the department is a difficult one, 

and we cannot provide a definitive answer at this time.” Assignment of Certain Functions 

Related to Certain Military Appointments, 29 Op. O.L.C. 133, 135 (2005). We noted in

particular that “[t]he Clause was designed to ‘limit[] the universe of eligible recipients of 
Authority of Acting FBI Officials to Sign National Security Letters

147

I.

Under 18 U.S.C. § 2709 (2006), 12 U.S.C. § 3414 (2006), and 15 U.S.C. 

§ 1681u (2006), the FBI may issue NSLs seeking information relevant to 

national security investigations.3 In particular, 18 U.S.C. § 2709(b) allows 

the FBI to obtain from a wire or electronic communications service provider the name, address, length of service, and billing records of a subscriber, while 12 U.S.C. § 3414 deals with customer records from financial institutions, and 15 U.S.C. § 1681u with certain information from 

consumer reporting agencies. To issue an NSL under these statutes, the 

FBI must certify in writing that the information requested “is sought for

the conduct of an authorized investigation to protect against international 

terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b); 12 

U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a). If the FBI further certifies that 

“otherwise there may result a danger to the national security of the United 

States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to 

the life or physical safety of any person,” the recipient of the NSL will be

prohibited from disclosing the NSL’s existence or content, except as 

necessary to comply with the NSL or to seek legal advice about it. 18 

U.S.C. § 2709(c); 12 U.S.C. § 3414(a)(5)(D); 15 U.S.C. § 1681u(d). Both 

of these statutory certifications must be made by “[t]he Director of the 

Federal Bureau of Investigation, or his designee in a position not lower 

than Deputy Assistant Director at Bureau headquarters or a Special Agent 

in Charge in a Bureau field office designated by the Director.” 18 U.S.C. 

§ 2709(b), (c); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a), (d). You 

have asked whether this language permits Acting Deputy Assistant Direc-

 

the power to appoint’ in order to ensure that such actors were readily identifiable and 

politically accountable.” Id. at 4 (quoting Freytag v. Comm’r, 501 U.S. 868, 885 (1991)). 

We are not in a position in the present opinion to resolve this difficult question about the 

delegability of a department head’s authority to appoint inferior officers.

3 The FBI Memorandum notes (at page 2) that 15 U.S.C. § 1681v (2006) similarly authorizes the issuance of NSLs to consumer reporting agencies (to obtain full credit 

reports), but that statute is different from the other NSL statutes insofar as it requires the 

certifications to be made by a “supervisory official” designated by the head of an agency 

or another official appointed by the President with the Senate’s advice and consent. Id. 

§ 1681v(b). We understand that, despite this textual difference, the FBI’s policy is to 

follow the same procedures for issuing NSLs under section 1681v as for other NSLs.
33 Op. O.L.C. 146 (2009)

148

tors and Acting Special Agents in Charge to make these certifications. We 

conclude that it does.

As a general rule, “[a]n acting officer is vested with the full authority 

of the officer for whom he acts.” Acting Officers, 6 Op. O.L.C. 119, 120

(1982); see Keyser v. Hitz, 133 U.S. 138, 146 (1890); Ryan v. United 

States, 136 U.S. 68, 81 (1890); Commissioners of Soldiers’ Home—

Vacancy, 23 Op. Att’y Gen. 473, 475–76 (1901); see, e.g., United States 

v. McGee, 173 F.3d 952, 955–56 (6th Cir. 1999); United States v. Pellicci, 

504 F.2d 1106, 1107 (1st Cir. 1974) (“There is no basis for concluding 

that one ‘acting’ as Attorney General has fewer than all the powers of that 

office.”). We assume that Congress legislates with an awareness of this 

presumption, see Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 

159 (1993), and we therefore construe statutes that authorize officers to 

perform specified functions as encompassing acting officers, even if the 

statutes do not expressly name them. See Memorandum for Richard L. 

Thornburgh, Assistant Attorney General, Criminal Division, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: 

Designation of a Deputy Assistant Attorney General to Act as Assistant 

Attorney General at 3–4 (Sept. 9, 1975) (“Designation of a Deputy Assistant Attorney General”); Memorandum for Stephen S. Trott, Assistant 

Attorney General, Criminal Division, from Robert B. Shanks, Deputy 

Assistant Attorney General, Office of Legal Counsel, Re: Authority of

Acting Assistant Attorney General to Authorize an Application for a Title 

III Wiretap at 7 (July 10, 1984) (“Authority of Acting Assistant Attorney 

General”).

Applying this principle, a 1975 opinion of our Office concluded that 

the federal wiretap statute, 18 U.S.C. § 2516 (1970), permitted an Acting 

Assistant Attorney General to authorize wiretap applications, even though 

the statute provided for authorization by the “[t]he Attorney General, or 

any Assistant Attorney General specially designated by the Attorney 

General.” See Designation of a Deputy Assistant Attorney General at 3, 6. 

Our opinion was prompted by dicta in United States v. Acon, 513 F.2d

513, 516 (3d Cir. 1975), stating that Acting Assistant Attorneys General 

could not authorize wiretap applications because the statute did not list 

them. We disagreed with that view. We argued that Acon had erroneously 

relied on United States v. Giordano, 416 U.S. 505 (1974), which had held 

that the Attorney General’s Executive Assistant could not approve a 
Authority of Acting FBI Officials to Sign National Security Letters

149

wiretap application because the statute did not name the “Executive

Assistant” as among the officials to whom the Attorney General could 

delegate his authority, and the statute’s legislative history revealed an 

intent to restrict the delegation of authority to a small group of politically 

responsive, senior Department of Justice officials. See Designation of a

Deputy Assistant Attorney General at 2. Giordano was not relevant to the 

issue at hand, we explained, because whether a power may be delegated to 

a particular official and whether an acting official may exercise that 

power are two distinct issues; Acon erred by failing to distinguish between 

an intent to limit delegation and the “extraordinary” intent “to reverse the

normal rule concerning authority of acting officers.” Id. at 4. We noted 

that reading a delegation limitation to exclude acting officials from a

function would substantially expand the restriction with relatively small 

benefits. Id. Any such exceptions to the general rule about acting officials,

we also noted, would impose a significant burden on acting officials by 

making it difficult to determine which powers of the permanent office 

they possess. Id. at 6 (citing Pellicci, 504 F.2d at 1107). Thus, although 

we recognized that “congressional concern for the sensitivity of a function 

could result in not merely the commitment of that function to particular 

officials but also in a prohibition against exercise of the function by any 

acting holders of the named offices,” we concluded that evidence of intent 

to limit the delegability of a function alone would not show that Congress 

also intended to preclude acting officials from performing that function. 

Id. at 4.

A 1984 opinion of our Office reaffirmed the conclusions of our 1975 

opinion. Nonetheless, we observed that intervening court cases had extended Giordano’s analysis to preclude Acting Assistant Attorneys General from authorizing wiretap applications. See Authority of Acting Assistant Attorney General at 1. We therefore advised caution in pursuing the 

position that the wiretap statute permitted Acting Assistant Attorneys 

General to approve wiretap applications. The wiretap statute, however, 

presented a specialized concern that is not presented by the NSL statutes. 

As described in Giordano, the legislative history of the wiretap statute 

revealed congressional intent to limit authority to approve wiretap applications to officials who could be held accountable through the political 

process, and it suggested that perhaps only Senate-confirmed presidential 

appointees are politically responsive in the relevant sense. See id. at 2–3 
33 Op. O.L.C. 146 (2009)

150

(citing Giordano, 416 U.S. at 520 & n.9). Thus, cases such as Acon stated 

that “an acting assistant attorney general [does not] meet the Supreme 

Court’s test of political responsiveness.” Acon, 513 F.2d at 516. The NSL

statutes, in contrast, expressly authorize the issuance of NSLs by officials 

who are not Senate-confirmed and arguably are not politically responsive 

according to Giordano, and the legislative history of the NSL statutes, 

described in more detail below, does not reveal any special concern about 

the political accountability of officials who issue NSLs.

If the NSL statutes simply named “Deputy Assistant Directors” and 

“Special Agents in Charge” as among the officials whom the Director 

could designate to issue NSLs, the presumption about acting officials and 

our 1975 opinion would lead directly to the conclusion that Acting Deputy Assistant Directors and Acting Special Agents in Charge could sign 

NSLs. See Designation of Deputy Assistant Attorney General at 5 (“[T]he 

naming of the office[] goes merely to the level of which delegation is 

permitted and not to the issue of whether, for an interim period, a temporary holder of that office can perform the delegated function.”). The text

of these statutes, however, raises a substantial and difficult question 

whether “congressional concern for the sensitivity of ” NSL functions has 

resulted “in a prohibition against exercise of [such] function[s] by any 

acting holders of the named offices.” Id. at 4. These statutes do notsimply 

name the officials whom the Director may designate to exercise NSL 

authorities. Instead, they reserve the exercise of NSL functions to the

Director “or his designee in a position not lower than Deputy Assistant 

Director at Bureau headquarters or a Special Agent in Charge in a Bureau 

field office designated by the Director.” 18 U.S.C. § 2709(b); 12 U.S.C. 

§ 3414(a)(5); 15 U.S.C. § 1681u(a) (emphasis added). This language is 

unusual and might suggest a congressional intent to limit the exercise of

NSL authority to permanent appointees, who, unlike acting officials, 

perhaps are more fittingly characterized as “in a position.”4

 

4 We are aware of two other statutes that use the formulation “in a position not lower 

than.” See 20 U.S.C. § 1232g(j) (2006) (authorizing “the Attorney General (or any 

Federal officer or employee, in a position not lower than an Assistant Attorney General, 

designated.by the Attorney General),” to seek an ex parte court order allowing access to 

educational records in connection with terrorism investigations or prosecutions(emphasis 

added)); id. § 9573(e) (similar). Neither our Office nor any court has considered the 

meaning of these provisions.
Authority of Acting FBI Officials to Sign National Security Letters

151

II.

Statutes about the designation of acting officials typically do not refer 

to such officials as being “in a position.” The Vacancies Reform Act 

(“VRA”), for example, says that an acting officer “shall perform the 

functions and duties” of the vacant office. 5 U.S.C. § 3345(a) (2006).

Other statutes use similar language or provide that the acting official shall 

“serve as” or shall “be” “Acting [Title]” in the event of a vacancy, absence, or disability. See, e.g., 10 U.S.C. § 154(d) (2006) (providing that 

“the Vice Chairman [of the Joint Chiefs of Staff] acts as Chairman and 

performs the duties of the Chairman until a successor is appointed or the 

absence or disability ceases”); 12 U.S.C. § 1462a(c)(3)(B) (2006) (“In the 

event of a vacancy in the position of Director [of the Office of Thrift 

Supervision] or during the absence or disability of the Director, the Deputy Director shall serve as Acting Director.”); 18 U.S.C. § 508 (2006) (“In

case of a vacancy in the office of Attorney General, or, of his absence or 

disability, the Deputy Attorney General may exercise all the duties of that 

office.”) (emphases added).

The existence of these formulations, however, does not demonstrate 

that by using the language “in a position not lower than,” Congress sought 

to preclude Acting Deputy Assistant Directors from exercising NSL 

functions. Nothing in the statutes speaks directly to the issue of acting 

officials, and the phrase “in a position not lower than” easily could refer 

to the level to which the function may be delegated. In light of the distinction we drew in our 1975 opinion between provisions that restrict delegability and those that exclude acting officials from performing a function, and in light of the well-established presumption that acting officials 

may exercise the same authorities as permanent officeholders, the NSL 

statutes are best read as placing a limit on delegation, not overturning the 

ordinary presumption about acting officials. We believe Congress would 

have spoken more clearly had it intended to preclude acting officialsfrom 

issuing NSLs. See Designation of a Deputy Assistant Attorney General at 

6; Authority of Acting Assistant Attorney General at 7.

The legislative history of the NSL statutes generally supports the view

that Congress sought to limit the delegation of NSL functions to FBI 

officials at the level of Deputy Assistant Director or above, rather than 

to preclude Acting Deputy Assistant Directors from issuing NSLs. As 
33 Op. O.L.C. 146 (2009)

152

originally enacted, 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. 

§ 1681u did not expressly limit the class of officials whom the Director 

could designate to sign NSLs. Instead, 18 U.S.C. § 2709 authorized 

“[t]he Director . . . (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director)” to make the certifications required for NSLs (Electronic Communications Privacy Act, 

Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986)), and 12 U.S.C. 

§ 3414 and 15 U.S.C. § 1681u provided that “the Director . . . (or the 

Director’s designee)” could make NSL certifications(Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, § 404, 100 Stat. 

3190, 3197 (1986); Intelligence Authorization Act for Fiscal Year 1996, 

Pub. L. No. 104-93, § 601(a), 109 Stat. 961, 975 (1996)). In the conference reports accompanying 12 U.S.C. § 3414 and 15 U.S.C. § 1681u, 

however, the conferees stated that the Director should not delegate NSL 

authority below the level of Deputy Assistant Director. See H.R. Rep. No. 

99-952, at 23–24 (1986) (Conf. Rep.) (noting that the conferees had 

“concluded that, should the Director of the FBI decide to delegate his 

authority [under 12 U.S.C. § 3414], . . . he should delegate it no further 

down the FBI chain-of-command than the level of Deputy Assistant Director” (emphasis added)); H.R. Rep. No. 104-427, at 37–38 (1995) (Conf. 

Rep.) (“As is the case with the FBI’s existing National Security Letter 

authority . . . , the conferees expect, that if the Director of the FBI delegates th[ese] function[s] under [15 U.S.C. § 1681u], the Director will 

delegate [them] no further than the level of FBI Deputy Assistant Director.”); see also H.R. Rep. No. 99-690, pt. 1, at 17 (1986) (“The Committee urges that, if the Director of the FBI delegates his function under [12 

U.S.C. § 3414], he will delegate it no further down the FBI chain of

command than the level of Assistant Director.”). The conference report 

that accompanied 18 U.S.C. § 2709 does not as clearly reveal a concern 

about delegability, but it seems likely that Congress viewed this statute 

and the other NSL statutes as similar. See S. Rep. No. 99-541, at 44–45 

(1986) (“It is intended that the [certification] requirement will be determined by a senior FBI official at the level of Deputy Assistant Director or 

above.”).5 There is no indication in the legislative history of 18 U.S.C. 

 

5 Congress subsequently codified these restrictions by amending 18 U.S.C. § 2709(b) 

to provide that the “Director of the [FBI], or his designee in a position not lower than 
Authority of Acting FBI Officials to Sign National Security Letters

153

§ 2709, 12 U.S.C. § 3414, or 15 U.S.C. § 1681u that Congress intended to 

preclude acting officials from issuing NSLs.

The legislative history of the NSL statutes does not reveal anything 

more than intent to restrict the delegability of NSL functions. That intent 

does not support a conclusion that Congress meant to preclude Acting 

Deputy Assistant Directors from exercising NSL functions. In the absence of any evidence in the statutory text or legislative history of “extraordinary” congressional intent to “reverse the normal rule concerning 

authority of acting officers,” Designation of a Deputy Assistant Attorney 

General at 4, we conclude that 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 

15 U.S.C. § 1681u permit Acting Deputy Assistant Directors at FBI

headquarters to exercise NSL functions.

III.

We also conclude that the NSL statutes permit Acting Special Agents 

in Charge to exercise NSL functions. As a preliminary matter, we note

that the language in the NSL statutes, “in a position not lower than,” may 

not apply to Special Agents in Charge of FBI field offices. It would be 

awkward and redundant for the NSL statutes to permit NSLs to be signed 

by the Director’s “designee in a position not lower than . . . a Special

Agent in Charge in a Bureau field office designated by the Director.”

(Emphasis added.) To avoid surplusage, we could read these statutes as 

authorizing the exercise of NSL authorities by the director’s (1) “designee 

in a position not lower than Deputy Assistant Director at Bureau headquarters” or (2) “a Special Agent in Charge in a Bureau field office designated by the Director.” See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). 

On this reading, because the “in a position not lower than” language

would not apply to Special Agents in Charge, they would simply be 

named among the officials whom the Director could designate to exercise 

NSL authorities. Under the ordinary presumption about acting officials, 

therefore, the NSL statutes would authorize Acting Special Agents in

 

Deputy Assistant Director,” may sign an NSL. Pub. L. No.103-142, § 1, 107 Stat. 1491, 

1491 (1993). Section 3414 of title 12 and 15 U.S.C. § 1681u were later amended to 

conform to 18 U.S.C. § 2709. See Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 

107-56, § 505, 115 Stat. 272, 365–66 (2001).
33 Op. O.L.C. 146 (2009)

154

Charge to sign NSLs. See Designation of a Deputy Assistant Attorney 

General at 3–4 (“[T]he description of the class of officials who are authorized to perform certain acts also includes acting officials, even if they 

are not specifically mentioned[.]”); see also McGee, 173 F.3d at 955–56; 

Pellicci, 504 F.2d at 1107; Commissioners of Soldiers’ Home—Vacancy, 

23 Op. Att’y Gen. 473, 475–76 (1901).

Even if the phrase “in a position not lower than” applies to Special 

Agents in Charge, however, we would still read the statute as limiting 

delegation only, rather than overturning the presumption that acting 

officers may exercise the full powers of the offices in which they temporarily serve. Like the legislative history discussed above, the legislative 

record behind the addition of Special Agents in Charge to the NSL statutes does not show any congressional concern about the issuance of NSLs

by acting officials. When Congress added Special Agents in Charge to the 

NSL statutes, it sought to expand, not restrict, the class of officials who 

may be authorized to issue NSLs. In 2001, Congress amended the NSL 

statutes to permit the Director to designate a “Special Agent in Charge in 

a Bureau field office,” in addition to headquarters officials at the level of 

Deputy Assistant Director or above. Pub. L. No. 107-56, § 505, 115 Stat. 

at 365–66. In hearings on the proposed legislation, a Department of Justice official explained that the proposed amendment would “allow special 

agents in charge—that is, the top-ranking FBI field agent in each of the 

FBI’s 56 field offices—to issue one of these letters rather than requiring 

the letter to be sent out by an Assistant Director at headquarters.” S. 1448, 

The Intelligence to Prevent Terrorism Act of 2001 and Other Legislative 

Proposals in the Wake of the September 11, 2001 Attacks: Hearing Before 

the S. Select Comm. on Intelligence, 107th Cong. 24 (2001) (statement of 

David Kris, Associate Deputy Attorney General). A section-by-section 

analysis similarly explained that, “because [NSLs] require the signature of 

a high-ranking official at FBI headquarters, they often take months to be

issued. . . . In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, 

returned from headquarters, and served. The section would streamline the

process of obtaining NSL authority.” Administration’s Draft AntiTerrorism Act of 2001: Hearing Before the H. Comm. on the Judiciary, 

107th Cong. 57–58 (2001). In view of the statutory presumption about 

acting officials and this indication of congressional intent to expand the 
Authority of Acting FBI Officials to Sign National Security Letters

155

class of officials who may issue NSLs, we think that 18 U.S.C. § 2709, 12 

U.S.C. § 3414, and 15 U.S.C. § 1681u permit Acting Special Agents in

Charge to sign NSLs.6

DANIEL L. KOFFSKY

Deputy Assistant Attorney General

Office of Legal Counsel

 

6 It might be argued that Acting Deputy Assistant Directors and Acting Special Agents 

in Charge should not be permitted to issue NSLs under the NSL statutes because the 

Director could designate relatively low-level employees to serve in these roles. See 136 

Cong. Rec. 35,806, 35,817 (Oct. 26, 1990) (statement of Sen. Boren) (introducing 

amendment to NSL statutes that “adds the requirement that the Director’s designee be of 

at least the rank of Deputy Assistant Director . . . due, in part, to the finding that critical 

decisions [concerning NSLs] were made at low levels at FBI Headquarters”). We do not 

think this possibility undermines our interpretation of the NSL statutes. Congress vested 

the authority to issue NSLs in Deputy Assistant Directors and Special Agents in Charge 

designated by the Director, and there is no indication of congressional intent to preclude

issuance of NSLs by officials acting in these positions. Moreover, as the FBI Memorandum notes (at pages 1 and 7), the Director selects permanent and acting Deputy Assistant 

Directors and Special Agents in Charge from the same pool of FBI employees (special 

agents and members of the FBI Senior Executive Service). This practice further supports

the view that the issuance of NSLs by Acting Deputy Assistant Directors and Special 

Agents in Charge should not raise any special concern under the NSL statutes.