APPLICABILITY OF THE FOREIGN INTELLIGENCE SURVEILLANCE 

ACT’S NOTIFICATION PROVISION TO SECURITY CLEARANCE 

ADJUDICATIONS BY THE DEPARTMENT 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 intends to use information obtained from electronic 

surveillance against an aggrieved person in an adjudication 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 national 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 Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. 

§ 1806(c) (2006), requires the Government to notify 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 Government intends to use “against” 

that person any information “obtained or derived from [such] electronic 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 requirement applies when the Department of Justice intends to use 

information obtained from such electronic surveillance against an aggrieved person in an 

adjudication before the Access Review Committee (“ARC”) concerning the Department’s 

revocation of an employee’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 as1 See Memorandum for David Barron, Acting Assistant Attorney 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 Attorney 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 Provision 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 would require disclosure of sensitive national 

security information protected by executive privilege. 

I. 

Section 106(c) of FISA provides: 

Whenever the Government intends to enter into evidence or otherwise use or 

disclose in any trial, hearing, or other proceeding in or before any court, 

department, officer, agency, regulatory body, or other authority of the United 

States, against an aggrieved person, any information obtained or derived from 

an electronic surveillance of that aggrieved 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 information 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, provides that the aggrieved person “may move 

to suppress the evidence obtained or derived from such electronic surveillance on the grounds 

that—(1) the information was unlawfully acquired; or (2) the surveillance 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; that 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 course of the ARC adjudication, the 

Department intends to justify the clearance revocation with the use of information it has 

“obtained . . . from an electronic surveillance” 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 clearance for a Department employee 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 part 3 of Executive Order 12968, 3 C.F.R. 391, 397 

3

 Because the circumstances you posit involve the use of information obtained 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 person” as a “person who is the 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). 

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Applicability 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 materials may be granted only to those employees 

for whom an appropriate investigation has been completed and whose personal 

and professional history affirmatively indicates loyalty to the United States, 

strength of character, trustworthiness, honesty, reliability, discretion, and sound 

judgment, as well as freedom from conflicting allegiances and potential for 

coercion, and willingness and ability to abide by regulations governing the use, 

handling, and protection of classified 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 indicate 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 national security.” 28 C.F.R. § 17.41(b).6 

If a Department component denies an employee a security clearance—that is, if the 

component determines that the employee is not eligible for access to classified information—or 

if the component revokes such eligibility, the component must provide the employee “with a 

comprehensive and detailed written explanation of the basis” for the decision, to the extent that 

“the national security interests of the United 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 entire 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 Information 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 § 17.47(a)(3)—whichever is 

later—the employee may file a written reply and request 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., having a security clearance—does not mean that 

an employee will necessarily be afforded 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 information 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 agencies must “ensure that access 

to classified information 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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Opinions of the Office of Legal Counsel in Volume 35 

Id. § 17.47(b). Thereafter, the employee must be provided a written notice of the results of the 

requested review, including the reasons for the results, along with the identity 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 receiving that written notice, appeal an adverse decision to the ARC 

and may request the opportunity to appear personally before the 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 relevant materials to the ARC in support of the 

security clearance denial or revocation, and may appear personally 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 Attorney General for Administration—each of whom 

may name a designee, subject to the 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 the 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 facts 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 the ARC and “personally 

exercises appeal authority.” Id. § 17.15(a). 

II. 

Because the ARC is composed of three high-ranking Department officials or their 

designees and its decisions are final unless the Attorney General personally exercises appeal 

authority over them, an ARC adjudication challenging revocation of a security clearance takes 

place before a “department, officer[s], . . . or other 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 executive 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 for an entity to be an authority 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 give final decisions”). Thus, section 106(c)’s 

notification requirement would generally be applicable in an ARC adjudication if that 

adjudication is a “trial, hearing, or other proceeding.” 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 statutory 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 several broad definitions, including, most 

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Applicability 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 particular step or series of steps 

adopted for doing or accomplishing 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 some 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 proceeding” in section 106(c) is best read to 

include processes “before any court, department, 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 proceedings before a “department, officer, agency, 

regulatory body, or other authority” strongly suggests that Congress 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 electronic surveillance for foreign intelligence purposes was 

introduced in 1976, the original version of section 106(c) would have limited its scope to a 

“trial, hearing, or other proceeding in a Federal 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 altered 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 including non-judicial proceedings.”).7

 To be sure, some of the 

language used in the relevant congressional reports 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) (explaining that the notice provision, as well 

as the provisions governing motions for suppression, “establish 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 the statutory provision, coupled with the legislative 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” and 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 States 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. 

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Opinions of the Office of Legal Counsel in Volume 35 

statement that the terms “trial, hearing, or other proceeding” were not limited to judicial 

proceedings, indicates that references to legal proceedings 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 language of section 106(c) supports the broad 

reading indicated by the plain meaning of the phrase “other proceeding,”9

 and we conclude 

that an ARC adjudication of a Department component’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 Government to notify an “aggrieved person” when it 

intends to use information “obtained 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 before 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 enforcement context uses the narrower phrase—rejected in the 

FISA notification provision—“trial, hearing, or other proceeding 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 provision 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 jury 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 Richard 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 characterizes a trial, these are not 

its only meanings. Thus, an ARC adjudication may 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 derived 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. 

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Applicability of FISA’s Notification Provision to Security Clearance Adjudications 

III. 

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

asked. The FBI notes that the President’s authority to control access to national security 

information, and thus to make security clearance determinations for Executive Branch 

employees, “flows primarily” from the President’s constitutional powers, Dep’t of the Navy v. 

Egan, 484 U.S. 518, 527 (1988), and, further, that federal 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 restrictions on the Executive’s 

authority and decision-making process in the security clearance context,” and suggests that 

perhaps section 106(c) is therefore unconstitutional as applied to ARC adjudications. Caproni 

Memo at 1-2. 

We agree with the FBI that the President’s constitutional authority to classify information 

concerning the national defense and foreign relations of the United States and to determine 

whether particular individuals should be given access to such information “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 Legal 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 disclosure 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 required to be kept secret in the interest of the 

national defense] or it could have established its own procedures—subject only to whatever 

limitations the Executive privilege may be held to impose upon such congressional 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 pursuant to section 106(e), section 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 General files such an affidavit, the district court is to “review in camera and ex parte the 

application, order, and such other materials relating to the surveillance as may be necessary to determine whether 

the surveillance of the aggrieved person was 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 designation 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 exercise 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 security 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 security clearance revocations. 

The doctrine of separation of powers, however, places some limits on Congress’s 

authority to participate in regulating the system for protecting classified information. The key 

question in identifying such limits is whether Congress’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 example, provide Executive Branch employees 

with independent authority to countermand or evade the President’s determinations as to when it 

is lawful and appropriate to disclose 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 Executive 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 require notice in proceedings such as ARC 

adjudications, could give rise to as-applied constitutional concerns under this separation-ofpowers framework. There may, for example, be cases in which providing 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

 Principal Deputy Assistant Attorney General 

8