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 s ign national security letters

.

January 1 6 , 2009

M EMORANDUM O PINION FOR THE G ENERAL C OUNSEL
F EDERAL B UREAU OF I NVESTIGATION

You have asked whether an official acting temporarily in the position of Deputy Assistant Director at the headquarters of the Federa l Bureau of Investigation ( “ FBI ” ) or Special Agent in Charge of an FBI field office may sig n national security letters ( “ NSLs ” ). By statute, NSLs may be
issue d by “ [t]he Director of the F ederal Bureau of Investigation, or his designee in a position not low er than Deputy Assistant Director at B u reau headquarters or a Special Agent in Charge in a Bureau field office des ignated 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 ” ) ma y 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, F ederal 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 Cla use; 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 Deput y 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 de partment may] delegate appointment authority to an officer below the head of the department is a difficult one,
and we canno t 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 i n particular that “ [ t]he Clause was designed to ‘limit [] the universe of eligible recipients ofAuthority 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 securi ty 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 a n NSL under these statutes, the FBI must certify in writing that the in fo rmation requested “ is sought for

the conduct of an auth orized 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 ma y r esult a danger to t h e nation al security of the United States, interference with a criminal, co u nt e rterr orism

, or counterintelligence investigation, interference with dipl omatic relations, or danger to the life or physical safety of an y person, ” the recipient of the NSL will b e prohib ited from disclosing the NSL ’ s existence or content, except as

necessary to comply with the NSL or to seek legal advice ab o ut 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 I nvestigation, or his designee in a position not lower than Deputy Assistant Director at Bur e au headq u arters or a Spe c ial Agent

in C harge 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 ques tion 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. 1 46 (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 wit h the full authority

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

, 12 0 (1982); see Keyser v. Hitz

, 133 U.S. 138

, 146 (1890); Ryan v. United

St a tes , 136 U.S. 68, 81 (1890); C omm issio n ers of So l diers ’ Home

— Va cancy , 23 Op. Att ’ y Gen. 473, 475

– 76 (1901); see, e.g. , U nited States

v. McGe e , 173 F.3d 952, 955

– 56 (6th Cir. 1999); United States v. Pellicci

, 504 F.2d 1106 , 1107 (1 st Cir. 1974) ( “ There is no basis for c on cludi n g that one ‘ acting ’ as Attorney General has fewe r than all the powers of that
office. ” ). We assume that Congres s legislates with an awareness of th is presumption

, see Comm ’ r v. Keystone Consol

. Indus.

, Inc. , 508 U.S. 152, 159 (1993), and we therefore construe statutes that authorize officers to perf o rm specified functions as encompassing acting officers, even if the statutes do not expressly name them. See Memor an d u m for Richard L. Thornburgh, Assistant Attorney General, Criminal Division, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel

, Re: Designa t ion o f a D eputy Assistant Attorney General to Act as Assistant Attorney General at 3

– 4 (Sept. 9, 1975) (“ Designation of a Deputy Assist a nt Attorney Gene r a l ” ); Memorandum for Stephen S. Trott, Assistant Attorney General, Criminal Divis ion, from Robe r t B. Shanks, Deputy
Assist an t Attorney General , Office of Legal Counsel, Re: Authority of Acting Assistant A ttorney General to Authorize an Application f or a Title

III Wiretap at 7 (July 10, 1984) ( “ A u thority of Acting Assistant Attorney

Gen era l ” ).
Applying this pr i nciple, a 1 975 opinion of o ur Office concluded that
the fede r al w iretap statute, 18 U

. S.C . § 2516 (1970), permitted an Acting

Assistant Atto rn ey General to authorize wiretap applicati o ns, even though the statute provided for autho rization by the “ [t]he Attorney Ge n eral, or any Assistant Attorney General specially designated by t he Attorney

Ge n eral. ” See Designation of a Deputy Assistan t Att o rney General at 3, 6.

Our opinion was prompted by di cta in Uni t ed States v. Acon

, 513 F.2d

5 13

, 516 (3d Cir. 1975), stating that Acting Assist an t Attorneys General could not authorize wiretap applications because the statute did not list

them. We disagreed with that view. We argued that A c on had erroneously
relied on United States v. Giordano , 41 6 U.S. 505 (1974), which had held

tha t the A tto rn e y General ’ s Executive Assistant could not approve aAuthority of Acting FBI Officials to Sign National Security Letters

149 wiretap application because t he statute did not name the “ Executive

A s sistan t” as among the officials to whom the Attorney Gen e ral c ou l d delegate his auth ority, and the statute ’ s legislative history revealed an

in t ent t o 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. Giordan o was not relevant to the issue at hand, we explained, because w hether a power may be delegated to a particular officia l and wh e ther an ac t ing official may exercise that power are two distinct issues; A c on erred by fail ing to distinguish between

an intent to limit delegati o n and the “ extraordinary ” intent “ to reverse the normal rule concerning authority of a ct ing officers. ” I d

. at 4. We noted that reading a delegation limitation to exclude acting officials from a function would substantially expand the rest riction with relatively small
benefits. Id

. Any such exceptions to the general ru le about acting officials, we also noted, would impose a significant burden on acting officials by making it difficult to de t ermine w hich powers of t he permanent office they p ossess. Id

. at 6 (citing Pellic c i , 504 F.2d at 110 7). Thus, although we recognized that “ congressional concern for the sens i t i vity of a function

could result in not merely the commitment of that function to particular
officials but also in a prohibition ag ainst exercise of the function by any acting holders of the n amed offices, ” we concluded th at evidence o f intent

to limit the delegability of a functio n alone would not show that Congress
also i ntended t o preclude acting officials from performing that func tion.

I

d . at 4.

A 1984 opinion of our Office reaffirmed the conc l usions of o ur 1975 opinio n

. Nonetheless, we observed that intervening court cases had extended Giordano ’ s analysis to preclude Acting Assistant Attorneys General from auth o rizing wiretap appl ications. See Authority of Ac t ing Assistant Attorney Gener a l at 1. We therefore advised caution in pursuing the position that the wiretap statute permitted Acting Assistant Attorneys General to approve wiretap applications. The w iretap statute, however,

pr esented a spe c ialized co ncern that is not presented by the NSL statutes.

As descri b ed in Giordano , the legislative history of the wiretap statuterevealed congressional intent to limit authority to approve wiretap applications to officials who could be h el d accountable through the political process, and it sugges t ed that perhaps only Senate

- confirmed presi dential appointees are politically responsive in the relevant se ns e. Se e id

. at 2

– 333 Op. O.L.C. 1 46 (2009)

150 (citing Giordano , 416 U.S. at 520 & n .9). Thus, cases such as A c on sta ted

that “ an acting assistant attorney ge neral [does not] m eet the Supreme

Co u rt ’ s test of political responsiveness. ” A c on , 513 F.2d a t 516. The NSL statutes, in contrast, expressly authorize the issuance of NSLs by offic i als

who are not Senate

- confi rm ed a nd arguabl y are not politically responsive according to Giordano , and the legislati ve history of the NSL statutes, described in more detail below, does not re veal any special c on ce rn ab out the political ac countability of officials who issue NSLs.

If the NS L statutes simply named “ Deputy Assistant Directors ” and

“ Special Agents in Charge ” as a m ong the officials whom the Dire c tor could designate to issue NSLs, the presumption about acting officials and our 1975 opinion would lea d directly to the conclusio n th at Ac ti ng D e puty Assistant Directors and Acting Special Agents in Charge could sign

NSLs. See D esignation of Deputy Assistant Attorney General at 5 ( “ [T]he naming of the office[] goes m erely to th e level of which delegati o n is permitted and not to the issu e of whether, for an interim period, a temporary holder of that office c an perform t he delegated function. ” ). Th e text
of these stat u tes, however, raises a substantial and difficult question
whether “ congressional concern f o r the sensitivity of ” NSL funct ions has

resulted “ in a prohib i tion against exercise of [such] function[s] by any acting holders of the named offices. ” I d . at 4. These statutes do not simply
name the officials whom the Dir e ctor may designate to exercise NSL authorities. Instead, they res erve the exercise of NSL functions to the

Director “or his designee in a position not lower than Deputy Assistant
Director at Bureau hea d quarters 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). Thi s language is

u nusual and might suggest a congressio nal intent to limit the exercise of NSL authority to pe rm anent appointees, who, unlike acting officials, perhaps are more fittin g ly characteriz e d 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 lo wer than an Assistant Attorney General,
des i gnated.by the Att o rney General),” to seek a n ex parte court order allo w ing access to
educational records in connection with terrorism in v estigations or prosecutions ( emphasis added) ) ; id . § 9 5 73(e) (similar). Neither our Office nor any court has considered t he meaning of these provisions.Authority of Acting FBI Officials to Sign National Security Letters

151 II

.

Statutes a b out the d e signation of acting officials typically do not refer

to such officials as being “ in a position. ” The Vacanc i es Reform Act ( “ VR A” ), for example, says that an acting officer “ s hall perform the

functions and dut ies ” o f the vacant office. 5 U.S.C. § 3345(a) (2006).

Other s tatutes use si m i l ar language or provide th a t the acting officia l shall

“ serve as ” or sha ll “ be ” “ Acting [Title] ” in the event of a vacancy, absence, or disability. See, e.g. , 10 U

. S.C . § 154(d) ( 2006) (p r oviding that

“ the Vice C h airman [of the Jo int Chiefs of Staff] acts as Chairman and perf o rms the duties o f the C hairman until a successor is appointed or the

absence o r disability ceases ” ); 12 U

. S.C . § 1462a(c)(3)(B) (2006) ( “ In the

event of a vac ancy in t he position of Director [of the Office of Thrift Supervision] or during the absence or disability of the Director, the Deput y Director sha l l serve as Acting Director

. ” ); 1 8 U.S.C. § 508 (2006) ( “ In case of a vacancy in th e office of Attorney Gener al, or, of his absence or disability

, the Deputy Attorney Gene r al may exercise all the duties of that office

. ” ) (emphases add e d).

The exi s tence of these formulations, however, does not demo n st ra te that by using the language “ in a position not lower than, ” Congress sought to preclude Acting Deputy Assistant Direct o rs from exercising NSL

functions. Noth i ng in the statutes speaks directly to th e issue of acting officials, an d the phrase “ in a posi t ion not l o wer than ” easily c oul d ref e r to the level to which th e functi o n may be delegated. In light of the distinction we drew in our 1975 opinion b etween provisions that restrict dele

gability and those that exclude acting officials from performing a fu nction, and in light of the well

- established presumption that ac ting o fficials

may exercise the same authorities as permanent office h olders, the NSL

statutes are best read as placing a limit on delegation, n o t overturning the ordinary presumpt i on about acting officials. We bel i eve C ongress would have spoken more clearl y ha d it inte nd ed to preclude acting offi c ials from

iss u ing NSLs. See Designation of a Deputy Assistant A t torney G ener a l at 6; Authority of Acting Assist an t Attorney Genera l at 7.

Th e legislative history of the NSL s tatutes generally supports the vie w that Cong r ess sought to limit the delegation of NSL functions to FBI officials at the level of Deputy Assistant Director or above, rather than
to p r ec l ude Acting Depu ty Assistant Directors from issuing NSLs. As33 Op. O.L.C. 1 46 (2009)

152 origina lly e nacted, 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 Dir e ctor could designate to sign NSLs. Instead, 18 U.S.C. § 2709 au th orized

“ [t]he Director .

. . (or an individua l within the Federal Bureau of In v est

igation d esignated for this purpose by the Director) ” to make the c e rti

fications 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,

P u b. L. No. 104

- 93, § 601(a), 109 Stat. 961, 975 (1996) ) . In the confere n ce reports accompanying 12 U .S.C. § 3414 and 15 U.S.C. § 168 1u

, however, the conferees s t ated 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 c o nferees had

“ concluded that

, should the Director of the FBI decide to delegate his authority [under 12 U.S.C. § 3414 ]

, . . . he should d elegate it no f urther

down the FBI chain

- of

- command than the level o f

Deputy Assist an t 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 F BI delegates th[ese] fu nction[s] under [ 15 U.S.C. § 1 681u], 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 hi s fu nction under [12 U.S.C. § 3414]

, h e will delegate it no further do wn the FBI chain of

command than the level of Assistant Di r ector. ” ). T he conference report that accompanied 18 U.S.C

. § 2709 does not as clearly reveal a concern

about delegability, but it s eems likely t hat Congress viewed this statu t e and the other NSL statutes as similar. See S. Rep. No. 99

- 541, at 44

– 45 (1986) ( “ It is inten d ed t hat the [certification] requirement will be dete rm ined by a senior FBI offic ia l at the level of Deputy Assistant Director or ab o ve. ”). 5 There is no in d ication in the leg islative history of 18 U.S.C.

5 Congress subsequently c odified 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 thanAuthority 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 legis l ative history of the NSL statutes does not re veal anything

more than i n tent to restrict the delegabi l ity of NS L functions. That intent does not support a con c lusion that Congress meant to preclude Acting

D eputy Assistant Directors from exercising NSL functions

. In the abs e nce of any evidence in th e statutory t e xt o r legislative history of “ extraordin a ry ” congressional intent to “ reverse the normal ru le 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. § 34 14, and 15 U.S.C. § 1681u permit Acting Deputy Assi s tan t Directors at FBI headquar ters to exercise NSL functions.

III

.
We also conclude that the NSL statutes permit Acting Special Agents in Charge to exercise NSL functio n s. 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 per m it NSLs to be sig n ed by the Director ’ s “ designee in a posi tion 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 d irector ’ s (1) “ desig nee i n a position not lower than Deputy Assistant Directo r 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 t h is reading, be c ause the “ in a position not lower than ” language would not apply to Special Agents in Charge, they would simply be named among the offi c ials whom the Director could designate to exercise
NSL authorities. Under the ordi n ary pr esumption a bout acting officials, therefore, the NSL s tatutes would author i ze Acting Special Agents i n

Deputy Assistant Director,” may sign an NSL. Pub. L. No.103

- 142, § 1, 107 Stat. 1491, 1491 (1993). Section 3 414 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. 1 46 (2009)

154 Charge to sign NSLs. See Designation of a Deputy Assistant Attorney
General at 3

– 4 ( “ [T]he des c ription of the class of officials who are a uthorized to perfor m certain acts also includes acting officials

, eve n 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

— Vac a ncy , 23 Op. Att ’ y Gen. 473, 475

– 76 (1901).

Eve n if the phrase “ in a position not lower than ” applies to Speci al Agents in C harge, however, we woul d still read the statute as limiting delegation only, ra t her than overtur n i n g the presumption that acting officers may exercise the full powers of the offices in which they temporarily serve. Like the legislative histor y discussed above, the legislative

record behind the addition of S pecial Agen ts in Charge to the NSL statutes does not show any congre s sional con c ern about the issuance o f NSLs by acting officials. Whe n Congress added Special Agents in Charge to the

NSL st atutes, it sought t o expand, not restrict, the class o f officials who may be a u t h o rized to issue NS Ls . 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 headq uarters officials at t h e level of Deputy Assistant Dire c tor or above. Pub. L. No. 107

- 5 6

, § 505, 115 Stat.

at 365

– 66. In hea ri ngs on the proposed legislation, a Department of Ju stice official explained that the proposed amendment would “ allow special
agent s in charge

— that is, the top

- ranking FBI field agent in each of the

F BI ’ s 56 f i eld offices

— to issue one of these letters rather than requiring the letter to be sent out by an Assistant Di rector at head quart ers. ” S. 1448,
The Intel lig ence to Prevent Terr o ri sm Act of 2001 and Other Legislative

P roposals in the Wake of the September 11, 2001 Attacks: He aring Before

the S. Select Comm. on Intelligence

, 107th C ong

. 24 (2001) (statement of
David Kri s , Associate D eputy Attorney General ) . A sectio n

- by

- section analy sis similarly explained that

, “ because [NSLs] require the signature of a high

- ranking of ficial at FBI headquarters, they often take months to be
issued

. . . . In many ca s es, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for N S Ls to be prepared, returned from headquarters, and s erved . Th e sectio n w ou ld streamline the

proc e ss of obtaining NSL authority .” Admin istra tion ’ s Draft Anti

Terrorism Act of 2001: H earing Before the H. Comm. on the Judiciary

, 107th Cong

. 57

– 58 (2001). In view of the statutory presumption about acting officials and this indicatio n of congressional inten t to expand theAuthority of Acting FBI Officials to Sign National Security Letters

155 clas s of officials who may is sue NSLs, we think that 18 U.S.C. § 2709, 12 U.S.C. § 341 4

, and 1 5 U.S.C. § 1681u permit Acti ng Special Agents in Charg e to sign NSLs. 6

DANIEL L. KOFFSKY

De puty 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 th ese roles. See 136 Cong

. Rec. 35

, 806, 35

, 817 (Oc t . 26, 1990) (statement of S e n. Boren) (introducing
amendm e nt 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, t o the finding that critical
de cisions [ concerning NSLs] were mad e at low levels at FBI He a dquarters”). We do not
think this possi bili ty undermines our interpret a tion of the NSL statutes. Congress vested
th e authority to issue NSLs in Deputy Assistant Direc tors and Speci a l Agents in Charge
des ignated by the Di rector, and there is no indication of congressional intent to preclude
issuance of NS Ls by o ffic ial s acting in these positions. Moreover, as the FBI Memorandum notes (at pages 1 and 7) , the Director s e l ects 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 Act ing Deputy Assistant Director s and Special Agents in Charge should not raise any special concern under the NSL statutes

.