### APPLICABILITY OF THE FOREIG N INTELLIGENCE SURVEILLANCE

ACT’S NOTIFICATION PROVIS ION TO SECURITY CLEARANCE

ADJUDICATIONS BY THE DE PARTMENT OF JUSTICE

ACCESS REVIEW COMMITTEE

The notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act generally applies when the Department of Justice in tends to use information obtained from electronic surveillance against an aggrieved person in an adju dication before the Access Review Committee concerning the Department’s revocation of an employee’s security clearance.

Compliance with the notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act in particular Access Review Committee adjudications could raise as-applied constitutional questions if such notice would require disclosure of sensitive natio nal security information protected by executive privilege.

June 3, 2011

MEMORANDUM OPINION FOR THE CHAIR AND

MEMBERS OF THE ACCESS REVIEW COMMITTEE

Section 106(c) of the Fore ign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1806(c) (2006), requires the Government to not ify an “aggrieved person”—that is, a person who was the target of electronic surveillance or whose communications or activities were subject to electronic surveillance, see id. § 1801(k)—whenever the Governme nt intends to use “against” that person any information “obtained or derive d from [such] electroni c surveillance of that aggrieved person” in any “trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States.” You have asked whether this notification require ment applies when the Departme nt of Justice intends to use

information obtained from such electronic surv eillance against an aggrieved person in an adjudication before the Access Review Comm ittee (“ARC”) concerning the Department’s revocation of an employ ee’s security clearance. 1 In accord with views we received from the Department’s Justice Management and National Security Divisions, we conclude that the notification requirement generally applies to such adjudications. 2 But, as we explain below, compliance with the notification requirement in particular ARC adjudications could raise as

1 See Memorandum for David Barron, Acting Assistant A ttorney General, Office of Legal Counsel, from Mari Barr Santangelo, Chair, Access Review Committee, et al., Re: Request for Opinion (Jan. 26, 2010) (“ Request for Opinion ”).

2 See E-mail for Daniel L. Koffsky, Deputy Assistant A ttorney General, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice Management Division, Re: ARC request (Apr. 2, 2010); E-mail for Daniel

L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Todd Hinnen, Deputy Assistant Attorney General for Law and Policy, National Security Division, Re: NSD Views Regarding the Applicability of 1806’s Notification Prov ision to Access Review Committee Proceedings (Mar. 31, 2010). We also received views from the Federal Bureau of Investigation (“FBI”) that did not take issue with the position that section 106(c) applies to ARC adjudications, but that raised other, related issues, two of which we respond to below in note 3 and at pages

7-8. See Memorandum for the Acting Assistant Attorney General, Office of Legal Counsel, from Valerie Caproni, General Counsel, Federal Bureau of Investigation, Re: Request for an OLC Opinion Dated January 26, 2010 by

ARC (Aug. 9, 2010) (“Caproni Memo”).Opinions of the Office of Legal Counsel in Volume 35

applied constitutional questions if such notice w ould require disclosure of sensitive national security information protected by executive privilege.

I.

Section 106(c) of FISA provides:

Whenever the Government intends to en ter into evidence or otherwise use or disclose in any trial, hearing, or othe r proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, a ny information obtained or derived from an electronic surveillance of that aggr ieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the inform ation is to be disclosed or used that

the Government intends to so disclose or so use such information.

50 U.S.C. § 1806(c). Section 106(e), in turn, pr ovides that the aggrieved person “may move to suppress the evidence obtaine d or derived from such electr onic surveillance on the grounds that—(1) the information was unlawfully acquire d; or (2) the surveilla nce was not made in conformity with an order of authorization or approval.” Id . § 1806(e).

You have asked us to assume, for purposes of our analysis, that a Department component has revoked an employee’s security clearance; th at the loss of security clearance caused the component to discharge the employee; that the employee has appealed the component’s securityclearance revocation decision to the ARC; and that, in the cour se of the ARC adjudication, the Department intends to justify the clearance revocation with the use of information it has

“obtained . . . from an electronic surveillan ce” of communications that involved the employee. 3

Id . § 1806(c). Accordingly, we will assume that the employee in question would be an “aggrieved person” under section 106(c), 4 and that the Government would use “information

obtained . . . from an electronic surveillance of ” that aggrieved person “against” that person in the ARC adjudication. Id

.

The function of a security cl earance for a Department em ployee is to designate the employee as someone who is eligible to be afforded access to classified information, in accordance with the standards set forth in pa rt 3 of Executive Order 12968, 3 C.F.R. 391, 397

3 Because the circumstances you pos it involve the use of information obta ined directly from the electronic surveillance in question, we need not address the language in section 106(c) that also makes the section applicable

when information has been “derived from” electronic surveillance.

4 Section 101(k) of FISA defines an “aggrieved pers on” as a “person who is th e target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50

U.S.C. § 1801(k). In other words, “aggrieved person[s]” include only those persons targeted by the surveillance and others who are parties to communications subject to surveillance; as explained in a FISA House Report, “[t]he term specifically does not include persons, not parties to a communication, who may be mentioned or talked about by others.” H.R. Rep. No. 95-1283, pt. I, at 66 (1978).

2Applicability of FISA’s Notification Provision to Security Clearance Adjudications

(1996). See 28 C.F.R. § 17.41(a)(1) (2010). Executive Order 12968 provides in relevant part that eligibility for access to classified mate rials may be granted only to those employees

for whom an appropriate investigation has been completed and whose personal and professional history affirmatively i ndicates loyalty to the United States, strength of character, tr ustworthiness, honesty, relia bility, discretion, and sound judgment, as well as freedom from c onflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of cl assified information.

Exec. Order No. 12968, § 3.1(b), 3 C.F.R. at 397. The Executive Order requires that departments and agencies reinvestigate employees on a periodic basis, and it authorizes additional reinvestigation “if, at any time, there is reason to believe” that an employee “may no longer meet the standards for access established” by the Order. Id . § 3.4(b), 3 C.F.R. at 399. 5
The applicable Department of Justice regulations accordingly provide that “[e]ligibility shall be granted only where facts and circumstances indica te access to classified information is clearly

consistent with the national security interests of the United States and any doubt shall be

resolved in favor of the nationa l security.” 28 C.F.R. § 17.41(b). 6

If a Department component denies an empl oyee a security clearance—that is, if the component determines that the employee is not e ligible for access to classified information—or if the component revokes such eligibility, the component must provide the employee “with a comprehensive and detailed writte n explanation of the basis” for the decision, to the extent that “the national security interests of the Unite d States and other applicable law permit.” Id

. § 17.47(a)(1). The component must also inform the employee that she has a right, at her own expense, to be represented by counsel or another representative of her choice. Id . During the thirty days following the date of the component’s written explanation of the clearance denial, the employee may request any “documents, records or reports” from the security clearance investigation, “including the enti re investigative file upon which [the] denial or revocation [was] based,” id . § 17.47(a)(2), and within thirty days of such a request the employee must receive copies of the requested materials to the extent such materials would have been provided if requested under the Freedom of In formation Act or the Privacy Act and “as the national security interests and other applicable law permit.” Id . § 17.47(a)(3). Thirty days after receiving the written explanation of the denial or the requested documents under § 17.4 7(a)(3)—whichever is later—the employee may file a written reply and re quest a review of the adverse determination.

5 In 2008, section 3(b) of Executive Order 13467 amended Executive Order 12968 in several respects, including by adding a new section 3.5 that provides for “continuous evaluation” of individuals determined to be eligible for access to classified information. See 3 C.F.R. §§ 196, 201 (2009). None of the 2008 amendments is germane to our analysis here.

6 Eligibility for access to classified information—i.e., havi ng a security clearance—does not mean that an employee will necessarily be afford ed access to such information. Both Executive Order 12968 and the Department’s regulations provide that eligibility for access is merely one prerequisite to actual access. In particular, an employee may not be provided access to such in formation without a demonstrated “need-to-know,” see Exec. Order No. 12968, § 1.2(a) & (c )(2), 3 C.F.R. at 392; 28 C. F.R. § 17.41(a)(2), and agen cies must “ensure that access

to classified informati on by each employee is clearly consistent with the interests of the national security,” Exec. Order No. 12968, § 1.2(b), 3 C.F.R. at 392; accord 28 C.F.R. § 17.41(c).

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Id . § 17.47(b). Thereafter, the employee must be pr ovided a written notice of the results of the requested review, including the reasons for the results, along with the id entity of the deciding authority and notice of the right to appeal an adverse decision to the ARC. The employee then may, within thirty days of recei ving that written notice, appeal an adverse decision to the ARC and may request the opportunity to appear personally before th e ARC and to present relevant documents, materials, and information. Id . § 17.47(d). The Department Security Officer must also be afforded an opportunity to present re levant materials to the ARC in support of the security clearance denial or revocation, and may appear person ally if the employee does so.

Id . § 17.47(g).

The ARC is composed of the Deputy Attorney General, the Assistant Attorney General for National Security, and the Assistant Attorn ey General for Admini stration—each of whom may name a designee, subject to th e Attorney General’s approval. See 28 C.F.R. § 17.15(b). When an employee appeals an adverse security clearance decision, the ARC must make a written “determination of eligibility for access to classified information . . . as expeditiously as possible.”

Id . § 17.47(f). Although the regulations describe this determination as a “discretionary security decision” by the ARC, they also mirror th e regulations governing the component’s initial decision by providing that the ARC may conclude that an employee should be granted eligibility for access to classified materials “only where f acts and circumstances indicate that access to classified information is clearly consistent with the national security interest of the United States”; any doubt is to be “resolved in favor of the national security.” Id . The ARC’s decision is final unless the Attorney General requests a recommendation from th e ARC and “personally exercises appeal authority.” Id . § 17.15(a).

II.

Because the ARC is composed of three hi gh-ranking Department officials or their designees and its decisions are final unless the Attorn ey General personally exercises appeal authority over them, an ARC ad judication challenging revocation of a security clearance takes place before a “department, officer[s], . . . or ot her authority of the United States.” 50 U.S.C. § 1806(c); see 28 U.S.C. § 501 (2006) (“[t]he Department of Justice is an ex ecutive department of the United States”); see also Dong v. Smithsonian Inst. , 125 F.3d 877, 881 (D.C. Cir. 1997) (“At the very least . . . it seems logical that fo r an entity to be an au thority of the government it must exercise some governmental authority.”) (emphasis omitted); Webster’s Third New International Dictionary 146 (1993) (defining “authority” as “superiority derived from a status that carries with it the right to command and gi ve final decisions”). Thus, section 106(c)’s notification requirement would generally be a pplicable in an ARC adjudication if that adjudication is a “trial, hearing, or other pr oceeding.” 50 U.S.C. § 1806(c). Although we are not aware of any judicial precedent discussing whether an employment-related administrative process such as an ARC adjudication would be a “trial, hearing, or other proceeding” for purposes of either section 106(c) or analogous, similarly worded notice statutes, we believe the ordinary meaning of the statutor y language encompasses such an adjudication, and the legislative history is consistent with our understanding.

We consider first whether the ARC process is a “proceeding” within the meaning of section 106(c). Id . The term “proceeding” has severa l broad definitions, including, most

4Applicability of FISA’s Notification Provision to Security Clearance Adjudications

importantly for present purposes, a “procedural means for seeking redress from a tribunal or agency.” Black’s Law Dictionary 1324 (9th ed. 2009); see also Webster’s Third New International Dictionary at 1807 (defining “proceeding” as “a pa rticular step or series of steps adopted for doing or a ccomplishing something”); Random House Dictionary of the English Language 1542 (2d ed. 1987) (defining “proceeding” as “a particular action or course or manner of action”). In order for that term to have so me independent effect in section 106(c)—which we assume Congress intended, see, e.g. , Carcieri v. Salazar , 129 S. Ct. 1058, 1066 (2009) (“‘we are obliged to give effect, if possible, to every word Congress used’”) (quoting Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979))—the term “other proceed ing” in section 106(c) is best read to include processes “before any court, depart ment, officer, agency, regulatory body, or other authority of the United States” that are distinct from, and in addition to, trials and hearings.

See 50 U.S.C. § 1806(c). The reference to procee dings before a “department, officer, agency, regulatory body, or other authority ” strongly suggests that Congr ess did not intend to limit the application of this provision to judicial proceedings. See id . Accordingly, although we need not determine the outer bounds of the meaning of “proceeding,” the breadth of the dictionary definition of the term and the surrounding text in section 106(c) lead us to believe that “proceeding” would encompass the ARC’s process for adjudicating an appeal from a decision by a Department of Justice component to revoke an employee’s security clearance.

The legislative history is consistent with this broad reading of “proceeding.” When proposed legislation concerning el ectronic surveillance for forei gn intelligence purposes was introduced in 1976, the original ve rsion of section 106(c) would have limited its scope to a “trial, hearing, or other proceeding in a Fede ral or State court,” S. Rep. No. 94-1035, at 64 (1976); S. Rep. No. 94-1161, at 41, 65 (1976). When a revised version of the bill was introduced in the next Congress, the language was altere d to cover non-judicial proceedings expressly,

see S. Rep. No. 95-604, at 56 (1977) (“This provision has been broadened in S. 1566 over its counterpart in S. 3197 by includi ng non-judicial proceedings.”). 7 To be sure, some of the language used in the relevant congressional report s echoes language used in the context of trials or court proceedings. See, e.g. , H.R. Rep. No. 95-1720, at 31 (1978) (Conf. Rep.) (explaining that the Senate bill “provided for notification to the court when information derived from

electronic surveillance is to be used in legal proceedings”); id . (explaining that early notice would allow for “the disposition of any motions concerning evidence derived from electronic surveillance”); S. Rep. No. 95-701, at 62 (1978) (explaini ng that the notice provision, as well as the provisions govern ing motions for suppression, “establis h the procedural mechanisms by which such information may be used in formal proceedings”) (emphasis added); H.R. Rep. No. 95-1283, pt. I, at 89 (1978) (same). Nevertheless , Congress’s decision to eliminate the reference

to federal or state courts in th e statutory provision, c oupled with the legislat ive history’s explicit

7 The relevant draft statutory language discussed in Senate Report 95-604 is similar, although not identical to, the language actually passed a year later. The revised language proposed in 1977 did not explicitly include proceedings before a “regulatory body,” and would have applied not only to authorities of the United States, but also to those of a State or political subdivision. See S. Rep. No. 95-604, at 80. In 1978, the House Permanent Select Committee on Intelligence proposed the language that was adopted later that year and remains the current statutory text—adding the reference to “regulatory body” an d focusing the section on federal authorities. See H.R. Rep. No. 95-1283, pt. I, at 9 (1978). Although the House Report setting out the language of section 106(c) as finally adopted explains that the notice requirements are imposed on the St ates through a separate section, it does not provide a reason for the change, nor does it explain the reason for the addition of the term “regulatory body.” See id . at 89.

5Opinions of the Office of Legal Counsel in Volume 35

statement that the terms “trial, hearing, or ot her proceeding” were not limited to judicial proceedings, indicates that references to legal pr oceedings in the legislative history should not be understood as limiting section 106(c)’s reach to court proceedings. 8

In sum, Congress’s expansion of the langua ge of section 106(c) supports the broad reading indicated by the plain meani ng of the phrase “other proceeding,” 9 and we conclude that an ARC adjudication of a Department comp onent’s revocation of an employee’s security clearance is an “other proceeding” within the meaning of FISA’s notification provision. 10
Section 106(c) thus generally requires the Gove rnment to notify an “aggrieved person” when it

intends to use information “obtaine d or derived from . . . electronic surveillance of that aggrieved person” against that person in such an ARC adjudication. 11 50 U.S.C. § 1806(c).

8 Analogous provisions in the statutory scheme governing wiretaps for law enforcement purposes also strongly suggest that Congress intended the phrase “trial, hearing, or other proceeding” to be quite broad. In one provision, using language nearly identical in relevant part to that in section 106(c), Congress authorized any “aggrieved person in any trial, hearing, or proceeding in or befo re any court, department, officer, agency, regulatory body, or other authority of the United States” to “move to suppress the contents” of interceptions. 18 U.S.C. § 2518(10)(a) (2006). According to the legislative history, “the scope of the provision [wa]s intended to be comprehensive,” although it would not include grand jury proceedings or Congressional hearings. S. Rep. No. 90

- 1097, at 106 (1968). The statutory scheme in the law enfo rcement context uses the narrower phrase—rejected in the FISA notification provision—“trial, hearing, or other proceedi ng in a Federal or State court” to require that certain information be provided to parties before the contents of a wiretap are used in such proceedings. 18 U.S.C. § 2518(9) (2006). The legislative history of that provisi on makes clear that the phrase was limited to “adversary type hearings,” and would not include a grand jury hearing. S. Rep. No. 90-1097, at 105.

9 Whether the term “proceeding” as used in section 106(c) refers only to an adversarial process is a question we need not decide. Cf. In re Grand Jury Proceedings , 856 F.2d 685, 690 & n.9 (4th Cir. 1988) (concluding that notice under section 106(c) was not required in the grand ju ry context because Congress explicitly included grand juries in certain provisions governing domestic wiretaps, demonstrating that Congress “knew how to include grand jury investigations as proceedings before which notice must be given to overheard persons” and because the legislative history of the domestic wiretap provisions demonstrated that “the term ‘proceeding’ was limited to include only adversary hearings”). The ARC adjudication at issue here is distinguishable from a federal grand jury proceeding because it is an adversarial process in which both sides are provided an opportunity to present

their cases to a decision-maker. See 28 C.F.R. § 17.47.

10 Because we conclude that the ARC process is an “other proceeding,” we need not decide whether it is also a “hearing.” We note, however, that the term “hearing” can—and in federal law often does—refer to any “opportunity to be heard or to present one’s side of a case.” Webster’s Third New International Dictionary at 1044;

see also Black’s Law Dictionary at 788 (defining a “hearing” for purposes of administrative law as “[a]ny setting in which an affected person presents arguments to a decision-maker”); 1 Ri chard J. Pierce, Jr., Administrative Law

Treatise § 8.2, at 708-12 (5th ed. 2010) (collecting and discussing decisions giving deference to various agency interpretations of statutory requirements for a “hearing ”). Although the term may in some instances refer specifically to a particular stage of litigation, see Black’s Law Dictionary at 788 (defining a “hearing” as “[a] judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying”), or to the sort of formal, adversary process that ordinarily charact erizes a trial, these are not its only meanings. Thus, an ARC adjudication ma y be a “hearing” as well as a “proceeding.”

11 Section 106 does not specify the form of notice the Government must provide to an “aggrieved person.”

See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 27:11 (2007) (comparing section 106(c) to other statutory search notice requirements). We have been informed that the ordinary Government practice is simply to state without elaboration that the United States intends to offer into evidence, or otherwise use or disclose, information obtained or derive d from electronic surveillance conducted pursuant to FISA, and not in the first instance to provide any further information, such as the identity of the FISA target, what communications were intercepted, when the information was obtained, or what FISA information the government

intends to use. See Caproni Memo at 2-3. You have not asked us to address the scope of the required notification.

6Applicability of FISA’s Notification Provision to Security Clearance Adjudications

III.

Finally, we address a constitutional issue th at bears on the statutory question you have

asked. The FBI notes that the President’s au thority to control access to national security information, and thus to make security cl earance determinations for Executive Branch employees, “flows primarily” from th e President’s constitutional powers, Dep’t of the Navy v. Egan , 484 U.S. 518, 527 (1988), and, further, that fede ral employees do not have a statutory or constitutional right to a security clearance, see id. at 528. In light of these premises, the FBI questions “whether Congress has the legal authority to impose re strictions on the Executive’s authority and decision-making process in the se curity clearance context,” and suggests that perhaps section 106(c) is therefor e unconstitutional as applied to ARC adjudications. Caproni

Memo at 1-2.

We agree with the FBI that the President’s co nstitutional authority to classify information concerning the national defense and foreign rela tions of the United States and to determine whether particular individuals should be given access to such informa tion “exists quite apart from any explicit congressional grant.” Egan , 484 U.S. at 527; see Whistleblower Protections for Classified Disclosures , 22 Op. O.L.C. 92, 94-99 (1998) (statement of Randolph D. Moss, Deputy Assistant Attorney General, Office of Le gal Counsel, before the House Permanent Select Committee on Intelligence). But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon di sclosure of classified information. See EPA v. Mink

, 410 U.S. 73, 83 (1973) (“Congress could certainly have provided that the Executive Branch adopt new procedures [concerning information require d to be kept secret in the interest of the national defense] or it could ha ve established its own proce dures—subject only to whatever limitations the Executive privilege may be held to impose upon such congre ssional ordering.”). For example, we believe Congress’s authority to regulate foreign intelligence surveillance under FISA, 12 and to regulate the terms of federal employment, 13 does, as a general matter, permit

We note, however, that if the aggrieved person moves the relevant authority to suppress evidence or information obtained or derived from such electronic surveillance purs uant to section 106(e), sec tion 106(f) authorizes the Attorney General to file an affidavit under oath to the district court in the same district as the authority stating “that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. § 1806(f) (2006). If the Attorney Genera l files such an affidavit, the district cour t is to “review in camera and ex parte the application, order, and such other ma terials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person wa s lawfully authorized and conducted.” Id .; see also id. § 1801(g) (2006) (defining “Attorney General” for purposes of FISA to include the Attorney General (or the Acting Attorney General); the Deputy Attorney General; and, upon design ation by the Attorney General, the Assistant Attorney General for National Security).

12 See generally Memorandum for Hon. Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel (Apr. 18, 1978), in Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legis. of the H. Permanent Select Comm. on Intelligence , 95th Cong. 31 (1978) (explaining that it would be “unreasonable to conclude that Congress, in the ex ercise of its powers in this area,” could not grant courts the authority under FISA to approve the legality of the Executive’s electronic surveillance); Statement on Signing

S. 1566 into Law, 2 Pub. Papers of Jimmy Carter 1853-54 (Oct. 25, 1978) (explaining that FISA “clarifies the Executive’s authority” and noting no constitutional objections to the Act).

13 See, e.g. , United Pub. Workers v. Mitchell , 330 U.S. 75, 101 (1947); Ex parte Curtis , 106 U.S. 371, 372

- 73 (1882). Various statutes regulate the se curity clearance process more generally. See 50 U.S.C. §§ 435-438 (2006 & Supp. III 2009); 50 U.S.C. §§ 831-835 (2006) (governing employees of the National Security Agency).

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Congress to impose the notification requirement in section 106(c), even when that requirement reaches proceedings concerning s ecurity clearance revocations.

The doctrine of separation of powers, however, places some limits on Congress’s authority to participate in regul ating the system for protecting classified information. The key question in identifying such limits is whether Congr ess’s action is “of such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.” Morrison v. Olson , 487

U.S. 654, 691 (1988). Congress may not, for ex ample, provide Executive Branch employees with independent authority to countermand or evad e the President’s determinations as to when it is lawful and appropriate to di sclose classified information. See Whistleblower Protections for Classified Disclosures , 22 Op. O.L.C. at 100. And, as noted above, Congress’s authority is “subject only to whatever limitations the Executi ve privilege may be held to impose upon such congressional ordering.” Mink , 410 U.S. at 83 (citing United States v. Reynolds , 345 U.S. 1 (1953)).

Section 106(c), by reaching broadly to requi re notice in proceedings such as ARC adjudications, could give rise to as-applied constitutional conc erns under this separation-of

powers framework. There may, for example, be cases in which providi ng notice under section 106(c) would effectively disclose sensitive national security information that is constitutionally privileged. Cf. Whistleblower Protections for Classified Disclosures , 22 Op. O.L.C. at 94-99 (noting historical examples of presidential claims of constitutional privilege to protect national security information). Given our understanding that the information provided when notice is required by section 106(c) is quite limited, see supra n. 11, we expect such as-applied concerns will arise infrequently.

/s/

CAROLINE D. KRASS Principa l Deputy Assistant Attorney General

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