b'Authority to Use Military Force in Libya\nThe President had the constitutional authority to direct the use of military force in Libya\nbecause he could reasonably determine that such use of force was in the national interest.\nPrior congressional approval was not constitutionally required to use military force in the\nlimited operations under consideration.\nApril 1, 2011\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis memorandum memorializes advice this Office provided to you,\nprior to the commencement of recent United States military operations in\nLibya, regarding the President\xe2\x80\x99s legal authority to conduct such operations. For the reasons explained below, we concluded that the President\nhad the constitutional authority to direct the use of force in Libya because\nhe could reasonably determine that such use of force was in the national\ninterest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under\nconsideration.\nI.\nIn mid-February 2011, amid widespread popular demonstrations seeking governmental reform in the neighboring countries of Tunisia and\nEgypt, as well as elsewhere in the Middle East and North Africa, protests\nbegan in Libya against the autocratic government of Colonel Muammar\nQadhafi, who has ruled Libya since taking power in a 1969 coup. Qadhafi\nmoved swiftly in an attempt to end the protests using military force. Some\nLibyan government officials and elements of the Libyan military left the\nQadhafi regime, and by early March, Qadhafi had lost control over much\nof the eastern part of the country, including the city of Benghazi. The\nLibyan government\xe2\x80\x99s operations against its opponents reportedly included\nstrafing of protesters and shelling, bombing, and other violence deliberately targeting civilians. Many refugees fled to Egypt and other neighboring countries to escape the violence, creating a serious crisis in the region.\nOn February 26, 2011, the United Nations Security Council (\xe2\x80\x9cUNSC\xe2\x80\x9d)\nunanimously adopted Resolution 1970, which \xe2\x80\x9c[e]xpress[ed] grave con20\n\n\x0cAuthority to Use Military Force in Libya\n\ncern at the situation in the Libyan Arab Jamahiriya,\xe2\x80\x9d \xe2\x80\x9ccondemn[ed] the\nviolence and use of force against civilians,\xe2\x80\x9d and \xe2\x80\x9c[d]eplor[ed] the gross\nand systematic violation of human rights\xe2\x80\x9d in Libya. S.C. Res. 1970, U.N.\nDoc. S/RES/1970 (Feb. 26, 2011); Press Release, Security Council, In\nSwift, Decisive Action, Security Council Imposes Tough Measures on\nLibyan Regime, Adopting Resolution 1970 in Wake of Crackdown on\nProtesters, U.N. Press Release SC/10187/Rev. 1 (Feb. 26, 2011). The\nresolution called upon member states, among other things, to take \xe2\x80\x9cthe\nnecessary measures\xe2\x80\x9d to prevent arms transfers \xe2\x80\x9cfrom or through their\nterritories or by their nationals, or using their flag vessels or aircraft\xe2\x80\x9d; to\nfreeze the assets of Qadhafi and certain other close associates of the\nregime; and to \xe2\x80\x9cfacilitate and support the return of humanitarian agencies\nand make available humanitarian and related assistance\xe2\x80\x9d in Libya. S.C.\nRes. 1970, \xc2\xb6\xc2\xb6 9, 17, 26. The resolution did not, however, authorize members of the United Nations to use military force in Libya.\nThe Libyan government\xe2\x80\x99s violence against civilians continued, and\neven escalated, despite condemnation by the UNSC and strong expressions of disapproval from other regional and international bodies. See,\ne.g., African Union, Communique of the 265th Meeting of the Peace and\nSecurity Council, PSC/PR/COMM.2(CCLXV) (Mar. 10, 2011) (describing the \xe2\x80\x9cprevailing situation in Libya\xe2\x80\x9d as \xe2\x80\x9cpos[ing] a serious threat to\npeace and security in that country and in the region as a whole\xe2\x80\x9d and\n\xe2\x80\x9c[r]eiterat[ing] AU\xe2\x80\x99s strong and unequivocal condemnation of the indiscriminate use of force and lethal weapons\xe2\x80\x9d); News Release, Organization\nof the Islamic Conference, OIC General Secretariat Condemns Strongly\nthe Excessive Use of Force Against Civilians in the Libyan Jamahiriya\n(Feb. 22, 2011), http://www.oic-oci.org/topic_detail.asp?t_id=4947&x_\nkey= (last visited ca. Apr. 2011) (reporting that \xe2\x80\x9cthe General Secretariat\nof the Organization of the Islamic Conference (OIC) voiced its strong\ncondemnation of the excessive use of force against civilians in the Arab\nLibyan Jamahiriya\xe2\x80\x9d). On March 1, 2011, the United States Senate passed\nby unanimous consent Senate Resolution 85. Among other things, the\nResolution \xe2\x80\x9cstrongly condemn[ed] the gross and systematic violations of\nhuman rights in Libya, including violent attacks on protesters demanding\ndemocratic reforms,\xe2\x80\x9d \xe2\x80\x9ccall[ed] on Muammar Gadhafi to desist from\nfurther violence,\xe2\x80\x9d and \xe2\x80\x9curge[d] the United Nations Security Council to\ntake such further action as may be necessary to protect civilians in Libya\n21\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nfrom attack, including the possible imposition of a no-fly zone over Libyan territory.\xe2\x80\x9d S. Res. No. 112-85, \xc2\xa7\xc2\xa7 2, 3, 7 (as passed by Senate, Mar. 1,\n2011). On March 12, the Council of the League of Arab States similarly\ncalled on the UNSC \xe2\x80\x9cto take the necessary measures to impose immediately a no-fly zone on Libyan military aviation\xe2\x80\x9d and \xe2\x80\x9cto establish safe\nareas in places exposed to shelling as a precautionary measure that allows\nthe protection of the Libyan people and foreign nationals residing in\nLibya, while respecting the sovereignty and territorial integrity of neighboring States.\xe2\x80\x9d League of Arab States, The Outcome of the Council of the\nLeague of Arab States Meeting at the Ministerial Level in Its Extraordinary Session on the Implications of the Current Events in Libya and the\nArab Position, Res. No. 7360, \xc2\xb6 1 (Mar. 12, 2011).\nBy March 17, 2011, Qadhafi\xe2\x80\x99s forces were preparing to retake the city\nof Benghazi. Pledging that his forces would begin an assault on the city\nthat night and show \xe2\x80\x9cno mercy and no pity\xe2\x80\x9d to those who would not give\nup resistance, Qadhafi stated in a radio address: \xe2\x80\x9cWe will come house by\nhouse, room by room. It\xe2\x80\x99s over. The issue has been decided.\xe2\x80\x9d Dan\nBilefsky & Mark Landler, Military Action Against Qaddafi Is Backed by\nU.N., N.Y. Times, Mar. 18, 2011, at A1. Qadhafi, President Obama later\nnoted, \xe2\x80\x9ccompared [his people] to rats, and threatened to go door to door\nto inflict punishment. . . . We knew that if we . . . waited one more day,\nBenghazi, a city nearly the size of Charlotte, could suffer a massacre that\nwould have reverberated across the region and stained the conscience of\nthe world.\xe2\x80\x9d Press Release, Office of the Press Secretary, The White\nHouse, Remarks by the President in Address to the Nation on Libya\n(Mar. 28, 2011) (\xe2\x80\x9cMarch 28, 2011 Address\xe2\x80\x9d), http://www.whitehouse.\ngov/the-press-office/2011/03/28/remarks-president-address-nation-libya\n(last visited ca. Apr. 2014).\nLater the same day, the UNSC addressed the situation in Libya again\nby adopting, by a vote of 10-0 (with five members abstaining), Resolution\n1973, which imposed a no-fly zone and authorized the use of military\nforce to protect civilians. See S.C. Res. 1973, U.N. Doc. S/RES/1973\n(Mar. 17, 2011); Press Release, Security Council, Security Council Approves \xe2\x80\x98No-Fly Zone\xe2\x80\x99 Over Libya, Authorizing \xe2\x80\x98All Necessary Measures\xe2\x80\x99\nto Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, U.N.\nPress Release SC/10200 (Mar. 17, 2011). In this resolution, the UNSC\ndetermined that the \xe2\x80\x9csituation\xe2\x80\x9d in Libya \xe2\x80\x9ccontinues to constitute a threat\n22\n\n\x0cAuthority to Use Military Force in Libya\n\nto international peace and security\xe2\x80\x9d and \xe2\x80\x9cdemand[ed] the immediate\nestablishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians.\xe2\x80\x9d S.C. Res. 1973. Resolution 1973\nauthorized member states, acting individually or through regional organizations, \xe2\x80\x9cto take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya,\nincluding Benghazi, while excluding a foreign occupation force of any\nform on any part of Libyan territory.\xe2\x80\x9d Id. \xc2\xb6 4. The resolution also specifically authorized member states to enforce \xe2\x80\x9ca ban on all [unauthorized]\nflights in the airspace of the Libyan Arab Jamahiriya in order to help\nprotect civilians\xe2\x80\x9d and to take \xe2\x80\x9call measures commensurate to the specific\ncircumstances\xe2\x80\x9d to inspect vessels on the high seas suspected of violating\nthe arms embargo imposed on Libya by Resolution 1970. Id. \xc2\xb6\xc2\xb6 6\xe2\x80\x938, 13.\nIn remarks on March 18, 2011, President Obama stated that, to avoid\nmilitary intervention to enforce Resolution 1973, Qadhafi needed to:\nimplement an immediate ceasefire, including by ending all attacks on\ncivilians; halt his troops\xe2\x80\x99 advance on Benghazi; pull his troops back\nfrom three other cities; and establish water, electricity, and gas supplies\nto all areas. Press Release, Office of the Press Secretary, The White\nHouse, Remarks by the President on the Situation in Libya (Mar. 18,\n2011) (\xe2\x80\x9cMarch 18, 2011 Remarks\xe2\x80\x9d), http://www.whitehouse.gov/thepress-office/2011/03/18/remarks-president-situation-libya (last visited\nca. Apr. 2011). The President also identified several national interests\nsupporting United States involvement in the planned operations:\nNow, here is why this matters to us. Left unchecked, we have every\nreason to believe that Qaddafi would commit atrocities against his\npeople. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilized, endangering many of\nour allies and partners. The calls of the Libyan people for help would\ngo unanswered. The democratic values that we stand for would be\noverrun. Moreover, the words of the international community would\nbe rendered hollow.\nId. President Obama further noted the broader context of the Libyan\nuprising, describing it as \xe2\x80\x9cjust one more chapter in the change that is\nunfolding across the Middle East and North Africa.\xe2\x80\x9d Id.\n\n23\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nDespite a statement from Libya\xe2\x80\x99s Foreign Minister that Libya would\nhonor the requested ceasefire, the Libyan government continued to conduct offensive operations, including attacks on civilians and civilianpopulated areas. See Press Release, Office of the Press Secretary, The\nWhite House, Letter from the President Regarding Commencement of\nOperations in Libya: Text of a Letter from the President to the Speaker of\nthe House of Representatives and the President Pro Tempore of the Senate (Mar. 21, 2011) (\xe2\x80\x9cMarch 21, 2011 Report to Congress\xe2\x80\x9d), http://www.\nwhitehouse.gov/the-press-office/2011/03/21/letter-president-regardingcommencement-operations-libya (last visited ca. Apr. 2011). In response,\non March 19, 2011, the United States, with the support of a number of its\ncoalition partners, launched airstrikes against Libyan targets to enforce\nResolution 1973. Consistent with the reporting provisions of the War\nPowers Resolution, 50 U.S.C. \xc2\xa7 1543(a) (2006), President Obama provided a report to Congress less than forty-eight hours later, on March 21,\n2011. The President explained:\nAt approximately 3:00 p.m. Eastern Daylight Time, on March 19,\n2011, at my direction, U.S. military forces commenced operations to\nassist an international effort authorized by the United Nations (U.N.)\nSecurity Council and undertaken with the support of European allies\nand Arab partners, to prevent a humanitarian catastrophe and address\nthe threat posed to international peace and security by the crisis in\nLibya. As part of the multilateral response authorized under U.N.\nSecurity Council Resolution 1973, U.S. military forces, under the\ncommand of Commander, U.S. Africa Command, began a series of\nstrikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in\ntheir nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the\nterms of U.N. Security Council Resolution 1973. These limited U.S.\nactions will set the stage for further action by other coalition partners.\nMarch 21, 2011 Report to Congress. The report then described the background to the strikes, including UNSC Resolution 1973, the demand for a\nceasefire, and Qadhafi\xe2\x80\x99s continued attacks.\n\n24\n\n\x0cAuthority to Use Military Force in Libya\n\nThe March 21 report also identified the risks to regional and international peace and security that, in the President\xe2\x80\x99s judgment, had justified\nmilitary intervention:\nQadhafi\xe2\x80\x99s continued attacks and threats against civilians and civilian\npopulated areas are of grave concern to neighboring Arab nations\nand, as expressly stated in U.N. Security Council Resolution 1973,\nconstitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby\ndestabilizing the peace and security of the region. Left unaddressed,\nthe growing instability in Libya could ignite wider instability in the\nMiddle East, with dangerous consequences to the national security\ninterests of the United States. Qadhafi\xe2\x80\x99s defiance of the Arab\nLeague, as well as the broader international community . . . represents a lawless challenge to the authority of the Security Council and\nits efforts to preserve stability in the region. Qadhafi has forfeited\nhis responsibility to protect his own citizens and created a serious\nneed for immediate humanitarian assistance and protection, with any\ndelay only putting more civilians at risk.\nId. Emphasizing that \xe2\x80\x9c[t]he United States has not deployed ground forces\ninto Libya,\xe2\x80\x9d the President explained that \xe2\x80\x9cUnited States forces are conducting a limited and well-defined mission in support of international\nefforts to protect civilians and prevent a humanitarian disaster\xe2\x80\x9d and thus\nhad targeted only \xe2\x80\x9cthe Qadhafi regime\xe2\x80\x99s air defense systems, command\nand control structures, and other capabilities of Qadhafi\xe2\x80\x99s armed forces\nused to attack civilians and civilian populated areas.\xe2\x80\x9d Id. The President\nalso indicated that \xe2\x80\x9c[w]e will seek a rapid, but responsible, transition of\noperations to coalition, regional, or international organizations that are\npostured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.\xe2\x80\x9d Id. As authority for the military operations in Libya, President Obama invoked his\n\xe2\x80\x9cconstitutional authority to conduct U.S. foreign relations\xe2\x80\x9d and his authority \xe2\x80\x9cas Commander in Chief and Chief Executive.\xe2\x80\x9d Id.\nBefore the initiation of military operations in Libya, White House and\nother executive branch officials conducted multiple meetings and brief25\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nings on Libya with members of Congress and testified on the Administration\xe2\x80\x99s policy at congressional hearings. See Press Release, Office of\nthe Press Secretary, Press Gaggle by Press Secretary Jay Carney,\n3/14/2011 (Mar. 24, 2011), http://www.whitehouse.gov/the-press-office/\n2011/03/24/press-gaggle-press-secretary-jay-carney-3242011 (last visited ca. Apr. 2011). President Obama invited Republican and Democratic\nleaders of Congress to the White House for consultation on March 18,\n2011 before launching United States military operations, see id., and\npersonally briefed members of Congress on the ongoing operations\non March 25, 2011. Press Release, Office of the Press Secretary,\nReadout of the President\xe2\x80\x99s Meeting with Members of Congress on Libya\n(Mar. 25, 2011), http://www.whitehouse.gov/the-press-office/2011/03/\n25/readout-presidents-meeting-members-congress-libya (last visited ca.\nApr. 2011). Senior executive branch officials are continuing to brief\nSenators and members of Congress on U.S. operations and events in\nLibya as they develop.\nOn March 28, 2011, President Obama addressed the nation regarding\nthe situation in Libya. The President stated that the coalition had succeeded in averting a massacre in Libya and that the United States was now\ntransferring \xe2\x80\x9cthe lead in enforcing the no-fly zone and protecting civilians\non the ground . . . to our allies and partners.\xe2\x80\x9d March 28, 2011 Address. In\nfuture coalition operations in Libya, the President continued, \xe2\x80\x9cthe United\nStates will play a supporting role\xe2\x80\x94including intelligence, logistical\nsupport, search and rescue assistance, and capabilities to jam regime\ncommunications.\xe2\x80\x9d Id. The President also reiterated the national interests\nsupporting military action by the United States. \xe2\x80\x9c[G]iven the costs and\nrisks of intervention,\xe2\x80\x9d he explained, \xe2\x80\x9cwe must always measure our interests against the need for action.\xe2\x80\x9d Id. But, \xe2\x80\x9c[i]n this particular country\xe2\x80\x94\nLibya\xe2\x80\x94at this particular moment, we were faced with the prospect of\nviolence on a horrific scale,\xe2\x80\x9d and \xe2\x80\x9c[w]e had a unique ability to stop that\nviolence.\xe2\x80\x9d Id. Failure to prevent a slaughter would have disregarded\nAmerica\xe2\x80\x99s \xe2\x80\x9cimportant strategic interest in preventing Qaddafi from overrunning those who oppose him\xe2\x80\x9d:\nA massacre would have driven thousands of additional refugees\nacross Libya\xe2\x80\x99s borders, putting enormous strains on the peaceful\xe2\x80\x94\nyet fragile\xe2\x80\x94transitions in Egypt and Tunisia. The democratic impulses that are dawning across the region would be eclipsed by the\n26\n\n\x0cAuthority to Use Military Force in Libya\n\ndarkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power. The writ of the United\nNations Security Council would have been shown to be little more\nthan empty words, crippling that institution\xe2\x80\x99s future credibility to\nuphold global peace and security. So while I will never minimize the\ncosts involved in military action, I am convinced that a failure to act\nin Libya would have carried a far greater price for America.\nId. As of March 31, 2011, the United States had transferred responsibility\nfor all ongoing coalition military operations in Libya to the North Atlantic\nTreaty Alliance (\xe2\x80\x9cNATO\xe2\x80\x9d).\nII.\nThe President explained in his March 21, 2011 report to Congress that\nthe use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and\neffectiveness of the United Nations Security Council. The President also\nstated that he intended the anticipated United States military operations in\nLibya to be limited in nature, scope, and duration. The goal of action by\nthe United States was to \xe2\x80\x9cset the stage\xe2\x80\x9d for further action by coalition\npartners in implementing UNSC Resolution 1973, particularly through\ndestruction of Libyan military assets that could either threaten coalition\naircraft policing the UNSC-declared no-fly zone or engage in attacks on\ncivilians and civilian-populated areas. In addition, no U.S. ground forces\nwould be deployed, except possibly for any search and rescue missions,\nand the risk of substantial casualties for U.S. forces would be low. As we\nadvised you prior to the commencement of military operations, we believe\nthat, under these circumstances, the President had constitutional authority,\nas Commander in Chief and Chief Executive and pursuant to his foreign\naffairs powers, to direct such limited military operations abroad, even\nwithout prior specific congressional approval.\nA.\nEarlier opinions of this Office and other historical precedents establish\nthe framework for our analysis. As we explained in 1992, Attorneys\nGeneral and this Office \xe2\x80\x9chave concluded that the President has the power\nto commit United States troops abroad,\xe2\x80\x9d as well as to \xe2\x80\x9ctake military\n27\n\n\x0c35 Op. O.L.C. 20 (2011)\n\naction,\xe2\x80\x9d \xe2\x80\x9cfor the purpose of protecting important national interests,\xe2\x80\x9d even\nwithout specific prior authorization from Congress. Authority to Use\nUnited States Military Forces in Somalia, 16 Op. O.L.C. 6, 9 (1992)\n(\xe2\x80\x9cMilitary Forces in Somalia\xe2\x80\x9d). This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it, see Deployment of United States Armed Forces Into Haiti, 18\nOp. O.L.C. 173, 176 n.4, 178 (1994) (\xe2\x80\x9cHaiti Deployment I\xe2\x80\x9d), derives\nfrom the President\xe2\x80\x99s \xe2\x80\x9cunique responsibility,\xe2\x80\x9d as Commander in Chief and\nChief Executive, for \xe2\x80\x9cforeign and military affairs,\xe2\x80\x9d as well as national\nsecurity. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993);\nU.S. Const. art. II, \xc2\xa7 1, cl. 1; id. \xc2\xa7 2, cl. 2.\nThe Constitution, to be sure, divides authority over the military between the President and Congress, assigning to Congress the authority to\n\xe2\x80\x9cdeclare War,\xe2\x80\x9d \xe2\x80\x9craise and support Armies,\xe2\x80\x9d and \xe2\x80\x9cprovide and maintain a\nNavy,\xe2\x80\x9d as well as general authority over the appropriations on which any\nmilitary operation necessarily depends. U.S. Const. art. I, \xc2\xa7 8, cls. 1, 11\xe2\x80\x93\n14. Yet, under \xe2\x80\x9cthe historical gloss on the \xe2\x80\x98executive Power\xe2\x80\x99 vested in\nArticle II of the Constitution,\xe2\x80\x9d the President bears the \xe2\x80\x9c\xe2\x80\x98vast share of\nresponsibility for the conduct of our foreign relations,\xe2\x80\x99\xe2\x80\x9d Am. Ins. Ass\xe2\x80\x99n v.\nGaramendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube\nCo. v. Sawyer, 343 U.S. 579, 610\xe2\x80\x9311 (1952) (Frankfurter, J., concurring)),\nand accordingly holds \xe2\x80\x9cindependent authority \xe2\x80\x98in the areas of foreign\npolicy and national security.\xe2\x80\x99\xe2\x80\x9d Id. at 429 (quoting Haig v. Agee, 453 U.S.\n280, 291 (1981)); see also, e.g., Youngstown Sheet & Tube Co., 343 U.S.\nat 635\xe2\x80\x9336 n.2 (Jackson, J., concurring) (noting President\xe2\x80\x99s constitutional\npower to \xe2\x80\x9cact in external affairs without congressional authority\xe2\x80\x9d). Moreover, the President as Commander in Chief \xe2\x80\x9csuperintend[s] the military,\xe2\x80\x9d\nLoving v. United States, 517 U.S. 748, 772 (1996), and \xe2\x80\x9cis authorized to\ndirect the movements of the naval and military forces placed by law at his\ncommand.\xe2\x80\x9d Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); see also\nPlacing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 184 (1996). The President also\nholds \xe2\x80\x9cthe implicit advantage . . . over the legislature under our constitutional scheme in situations calling for immediate action,\xe2\x80\x9d given that\nimminent national security threats and rapidly evolving military and\ndiplomatic circumstances may require a swift response by the United\nStates without the opportunity for congressional deliberation and action.\n28\n\n\x0cAuthority to Use Military Force in Libya\n\nPresidential Power to Use the Armed Forces Abroad Without Statutory\nAuthorization, 4A Op. O.L.C. 185, 187 (1980) (\xe2\x80\x9cPresidential Power\xe2\x80\x9d);\nsee also Haig, 453 U.S. at 292 (noting \xe2\x80\x9c\xe2\x80\x98the changeable and explosive\nnature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly\npresented to, evaluated by, and acted upon by the legislature\xe2\x80\x99\xe2\x80\x9d) (quoting\nZemel v. Rusk, 381 U.S. 1, 17 (1965). Accordingly, as Attorney General\n(later Justice) Robert Jackson observed over half a century ago, \xe2\x80\x9cthe\nPresident\xe2\x80\x99s authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of\ngoodwill or rescue, or for the purpose of protecting American lives or\nproperty or American interests.\xe2\x80\x9d Training of British Flying Students in the\nUnited States, 40 Op. Att\xe2\x80\x99y Gen. 58, 62 (1941).\nThis understanding of the President\xe2\x80\x99s constitutional authority reflects\nnot only the express assignment of powers and responsibilities to the\nPresident and Congress in the Constitution, but also, as noted, the \xe2\x80\x9chistorical gloss\xe2\x80\x9d placed on the Constitution by two centuries of practice. Garamendi, 539 U.S. at 414. \xe2\x80\x9cOur history,\xe2\x80\x9d this Office observed in 1980, \xe2\x80\x9cis\nreplete with instances of presidential uses of military force abroad in the\nabsence of prior congressional approval.\xe2\x80\x9d Presidential Power, 4A Op.\nO.L.C. at 187; see generally Richard F. Grimmett, Cong. Research Serv.,\nR41677, Instances of Use of United States Armed Forces Abroad, 1798\xe2\x80\x93\n2010 (2011) (\xe2\x80\x9cGrimmet\xe2\x80\x9d). Since then, instances of such presidential initiative have only multiplied, with Presidents ordering, to give just a few\nexamples, bombing in Libya (1986), an intervention in Panama (1989),\ntroop deployments to Somalia (1992), Bosnia (1995), and Haiti (twice,\n1994 and 2004), air patrols and airstrikes in Bosnia (1993\xe2\x80\x931995), and a\nbombing campaign in Yugoslavia (1999), without specific prior authorizing legislation. See Grimmett at 13\xe2\x80\x9331. This historical practice is an\nimportant indication of constitutional meaning, because it reflects the two\npolitical branches\xe2\x80\x99 practical understanding, developed since the founding\nof the Republic, of their respective roles and responsibilities with respect\nto national defense, and because \xe2\x80\x9c[m]atters intimately related to foreign\npolicy and national security are rarely proper subjects for judicial intervention.\xe2\x80\x9d Haig, 453 U.S. at 292. In this context, the \xe2\x80\x9cpattern of executive\nconduct, made under claim of right, extended over many decades and\nengaged in by Presidents of both parties, \xe2\x80\x98evidences the existence of\n29\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nbroad constitutional power.\xe2\x80\x99\xe2\x80\x9d Haiti Deployment I, 18 Op. O.L.C. at 178\n(quoting Presidential Power, 4A Op. O.L.C. at 187); see also Proposed\nDeployment of United States Armed Forces into Bosnia, 19 Op. O.L.C.\n327, 330\xe2\x80\x9331 (1995) (\xe2\x80\x9cProposed Bosnia Deployment\xe2\x80\x9d) (noting that \xe2\x80\x9c[t]he\nscope and limits\xe2\x80\x9d of Congress\xe2\x80\x99s power to declare war \xe2\x80\x9care not well defined by constitutional text, case law, or statute,\xe2\x80\x9d but the relationship\nbetween that power and the President\xe2\x80\x99s authority as Commander in Chief\nand Chief Executive has been instead \xe2\x80\x9cclarified by 200 years of practice\xe2\x80\x9d).\nIndeed, Congress itself has implicitly recognized this presidential authority. The War Powers Resolution (\xe2\x80\x9cWPR\xe2\x80\x9d), 50 U.S.C. \xc2\xa7\xc2\xa7 1541\xe2\x80\x931548\n(2006), a statute Congress described as intended \xe2\x80\x9cto fulfill the intent of\nthe framers of the Constitution of the United States,\xe2\x80\x9d id. \xc2\xa7 1541(a), provides that, in the absence of a declaration of war, the President must\nreport to Congress within 48 hours of taking certain actions, including\nintroduction of U.S. forces \xe2\x80\x9cinto hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.\xe2\x80\x9d\nId. \xc2\xa7 1543(a). The Resolution further provides that the President generally\nmust terminate such use of force within 60 days (or 90 days for military\nnecessity) unless Congress extends this deadline, declares war, or \xe2\x80\x9cenact[s] a specific authorization.\xe2\x80\x9d Id. \xc2\xa7 1544(b). As this Office has explained, although the WPR does not itself provide affirmative statutory\nauthority for military operations, see id. \xc2\xa7 1547(d)(2), the Resolution\xe2\x80\x99s\n\xe2\x80\x9cstructure . . . recognizes and presupposes the existence of unilateral\npresidential authority to deploy armed forces\xe2\x80\x9d into hostilities or circumstances presenting an imminent risk of hostilities. Haiti Deployment I,\n18 Op. O.L.C. at 175; see also Proposed Bosnia Deployment, 19 Op.\nO.L.C. at 334. That structure\xe2\x80\x94requiring a report within 48 hours after the\nstart of hostilities and their termination within 60 days after that\xe2\x80\x94\xe2\x80\x9cmakes\nsense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.\xe2\x80\x9d Haiti Deployment I, 18 Op. O.L.C. at 175\xe2\x80\x9376; see also Proposed Bosnia Deployment, 19 Op. O.L.C. at 334\xe2\x80\x9335. 1\nA policy statement in the WPR states that \xe2\x80\x9c[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or\ninto situations where imminent involvement in hostilities is clearly indicated by the\ncircumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statuto1\n\n30\n\n\x0cAuthority to Use Military Force in Libya\n\nWe have acknowledged one possible constitutionally based limit on\nthis presidential authority to employ military force in defense of important\nnational interests\xe2\x80\x94a planned military engagement that constitutes a \xe2\x80\x9cwar\xe2\x80\x9d\nwithin the meaning of the Declaration of War Clause may require prior\ncongressional authorization. See Proposed Bosnia Deployment, 19 Op.\nO.L.C. at 331; Haiti Deployment I, 18 Op. O.L.C. at 177. But the historical practice of presidential military action without congressional approval\nprecludes any suggestion that Congress\xe2\x80\x99s authority to declare war covers\nevery military engagement, however limited, that the President initiates.\nIn our view, determining whether a particular planned engagement constitutes a \xe2\x80\x9cwar\xe2\x80\x9d for constitutional purposes instead requires a fact-specific\nassessment of the \xe2\x80\x9canticipated nature, scope, and duration\xe2\x80\x9d of the planned\nmilitary operations. Haiti Deployment I, 18 Op. O.L.C. at 179. This standard generally will be satisfied only by prolonged and substantial military\nengagements, typically involving exposure of U.S. military personnel to\nsignificant risk over a substantial period. Again, Congress\xe2\x80\x99s own key\nenactment on the subject reflects this understanding. By allowing United\nStates involvement in hostilities to continue for 60 or 90 days, Congress\nsignaled in the WPR that it considers congressional authorization most\ncritical for \xe2\x80\x9cmajor, prolonged conflicts such as the wars in Vietnam and\nKorea,\xe2\x80\x9d not more limited engagements. Id. at 176.\nApplying this fact-specific analysis, we concluded in 1994 that a\nplanned deployment of up to 20,000 United States troops to Haiti to oust\nmilitary leaders and reinstall Haiti\xe2\x80\x99s legitimate government was not a\n\xe2\x80\x9cwar\xe2\x80\x9d requiring advance congressional approval. Id. at 174 n.1, 178\xe2\x80\x9379 &\n\nry authorization, or (3) a national emergency created by attack upon the United States, its\nterritories or possessions, or its armed forces.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1541(c). But this policy\nstatement \xe2\x80\x9cis not to be viewed as limiting presidential action in any substantive manner.\xe2\x80\x9d\nPresidential Power, 4A Op. O.L.C. at 190. The conference committee report accompanying the WPR made clear that \xe2\x80\x9c[s]ubsequent sections of the [Resolution] are not dependent\nupon the language of\xe2\x80\x9d the policy statement. H.R. Rep. No. 93-547, at 8 (1973). Moreover,\nin a later, operative provision, the Resolution makes clear that nothing in it \xe2\x80\x9cis intended to\nalter the constitutional authority . . . of the President.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1547(d). As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many\nother examples, \xe2\x80\x9cthe President\xe2\x80\x99s power to deploy armed forces into situations of actual\nor indicated hostilities is not restricted to the three categories specifically marked out by\nthe Resolution.\xe2\x80\x9d Proposed Bosnia Deployment, 19 Op. O.LC. at 335; see also Haiti\nDeployment I, 18 Op. O.L.C. at 176 & n.3.\n\n31\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nn.10; see also Address to the Nation on Haiti, 30 Weekly Comp. Pres.\nDoc. 1799 (Sept. 18, 1994); Maureen Taft-Morales & Clare Ribando\nSeelke, Cong. Research Serv., RL32294, Haiti: Developments and U.S.\nPolicy Since 1991 and Current Congressional Concerns 4 (2008). \xe2\x80\x9cIn\ndeciding whether prior Congressional authorization for the Haitian deployment was constitutionally necessary,\xe2\x80\x9d we observed, \xe2\x80\x9cthe President\nwas entitled to take into account the anticipated nature, scope, and duration of the planned deployment, and in particular the limited antecedent\nrisk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment.\xe2\x80\x9d Haiti Deployment I, 18 Op. O.L.C. at 179. Similarly, a year\nlater we concluded that a proposed deployment of approximately 20,000\nground troops to enforce a peace agreement in Bosnia and Herzegovina\nalso was not a \xe2\x80\x9cwar,\xe2\x80\x9d even though this deployment involved some \xe2\x80\x9crisk\nthat the United States [would] incur (and inflict) casualties.\xe2\x80\x9d Proposed\nBosnia Deployment, 19 Op. O.L.C. at 333. For more than two years preceding this deployment, the United States had undertaken air operations\nover Bosnia to enforce a UNSC-declared \xe2\x80\x9cno-fly zone,\xe2\x80\x9d protect United\nNations peacekeeping forces, and secure \xe2\x80\x9csafe areas\xe2\x80\x9d for civilians, including one two-week operation in which NATO attacked hundreds of targets\nand the United States alone flew over 2300 sorties\xe2\x80\x94all based on the\nPresident\xe2\x80\x99s \xe2\x80\x9cconstitutional authority to conduct the foreign relations of the\nUnited States and as Commander in Chief and Chief Executive,\xe2\x80\x9d without\na declaration of war or other specific prior approval from Congress. Letter\nto Congressional Leaders Reporting on the Deployment of United States\nAircraft to Bosnia-Herzegovina (Sept. 1, 1995), 2 Pub. Papers of Pres.\nWilliam J. Clinton 1279, 1280 (1995); see also, e.g., Letter to Congressional Leaders on Bosnia, 30 Weekly Comp. Pres. Doc. 2431, 2431 (Nov.\n22, 1994); Letter to Congressional Leaders on Bosnia-Herzegovina, 30\nWeekly Comp. Pres. Doc. 1699, 1700 (Aug. 22, 1994); Letter to Congressional Leaders on Protection of United Nations Personnel in BosniaHerzegovina, 30 Weekly Comp. Pres. Doc. 793, 793 (Apr. 12, 1994);\nLetter to Congressional Leaders Reporting on NATO Action in Bosnia, 30\nWeekly Comp. Pres. Doc. 406, 406 (Mar. 1, 1994); Letter to Congressional Leaders on the Conflict in the Former Yugoslavia, 30 Weekly\nComp. Pres. Doc. 324, 325 (Feb. 17, 1994); Letter to Congressional\nLeaders Reporting on the No-Fly Zone Over Bosnia, 29 Weekly Comp.\n32\n\n\x0cAuthority to Use Military Force in Libya\n\nPres. Doc. 586, 586 (Apr. 13, 1993); Proposed Bosnia Deployment, 19\nOp. O.L.C. at 328\xe2\x80\x9329; Deliberate Force: A Case Study in Effective Air\nCampaigning 334, 341\xe2\x80\x9344 (Col. Robert C. Owen ed., 2000), http://purl.\naccess.gpo.gov/GPO/LPS20446 (last visited ca. Apr. 2011). This Office\nacknowledged that \xe2\x80\x9cdeployment of 20,000 troops on the ground is an\nessentially different, and more problematic, type of intervention,\xe2\x80\x9d than\nair or naval operations because of the increased risk of United States\ncasualties and the far greater difficulty of withdrawing United States\nground forces. But we nonetheless concluded that the anticipated risks\nwere not sufficient to make the deployment a \xe2\x80\x9c\xe2\x80\x98war\xe2\x80\x99 in any sense of the\nword.\xe2\x80\x9d Proposed Bosnia Deployment, 19 Op. O.L.C. at 333\xe2\x80\x9334 (emphasis\nin original).\nB.\nUnder the framework of these precedents, the President\xe2\x80\x99s legal authority to direct military force in Libya turns on two questions: first, whether\nUnited States operations in Libya would serve sufficiently important\nnational interests to permit the President\xe2\x80\x99s action as Commander in Chief\nand Chief Executive and pursuant to his authority to conduct U.S. foreign\nrelations; and second, whether the military operations that the President\nanticipated ordering would be sufficiently extensive in \xe2\x80\x9cnature, scope, and\nduration\xe2\x80\x9d to constitute a \xe2\x80\x9cwar\xe2\x80\x9d requiring prior specific congressional\napproval under the Declaration of War Clause.\nIn prior opinions, this Office has identified a variety of national interests that, alone or in combination, may justify use of military force by the\nPresident. In 2004, for example, we found adequate legal authority for the\ndeployment of U.S. forces to Haiti based on national interests in protecting the lives and property of Americans in the country, preserving \xe2\x80\x9cregional stability,\xe2\x80\x9d and maintaining the credibility of United Nations Security Council mandates. Deployment of United States Armed Forces to Haiti,\n28 Op. O.L.C. 30, 32\xe2\x80\x9333 (2004) (\xe2\x80\x9cHaiti Deployment II\xe2\x80\x9d). In 1995, we\nsimilarly concluded that the President\xe2\x80\x99s authority to deploy approximately\n20,000 ground troops to Bosnia, for purposes of enforcing a peace agreement ending the civil war there, rested on national interests in completing\na \xe2\x80\x9cpattern of inter-allied cooperation and assistance\xe2\x80\x9d established by prior\nU.S. participation in NATO air and naval support for peacekeeping efforts, \xe2\x80\x9cpreserving peace in the region and forestalling the threat of a wider\n33\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nconflict,\xe2\x80\x9d and maintaining the credibility of the UNSC. Proposed Bosnia\nDeployment, 19 Op. O.L.C. at 332\xe2\x80\x9333. And in 1992, we explained the\nPresident\xe2\x80\x99s authority to deploy troops in Somalia in terms of national\ninterests in providing security for American civilians and military personnel involved in UNSC-supported humanitarian relief efforts and (once\nagain) enforcing UNSC mandates. Military Forces in Somalia, 16 Op.\nO.L.C. at 10\xe2\x80\x9312. 2\nIn our view, the combination of at least two national interests that the\nPresident reasonably determined were at stake here\xe2\x80\x94preserving regional\nstability and supporting the UNSC\xe2\x80\x99s credibility and effectiveness\xe2\x80\x94\nprovided a sufficient basis for the President\xe2\x80\x99s exercise of his constitutional authority to order the use of military force. 3 First, the United States has\na strong national security and foreign policy interest in security and stability in the Middle East that was threatened by Qadhafi\xe2\x80\x99s actions in Libya.\nAs noted, we recognized similar regional stability interests as justifications for presidential military actions in Haiti and Bosnia. With respect to\nHaiti, we found \xe2\x80\x9can obvious interest in maintaining peace and stability,\xe2\x80\x9d\n\xe2\x80\x9c[g]iven the proximity of Haiti to the United States,\xe2\x80\x9d and particularly\nconsidering that \xe2\x80\x9cpast instances of unrest in Haiti have led to the mass\nemigration of refugees attempting to reach the United States.\xe2\x80\x9d Haiti\nDeployment II, 28 Op. O.L.C. at 32\xe2\x80\x9333. In the case of Bosnia, we noted\n(quoting prior statements by President Clinton justifying military action)\nthe longstanding commitment of the United States to the \xe2\x80\x9c\xe2\x80\x98principle that\nthe security and stability of Europe is of fundamental interest to the United States,\xe2\x80\x99\xe2\x80\x9d and we identified, as justification for the military action, the\n2 As these examples make clear, defense of the United States to repel a direct and immediate military attack is by no means the only basis on which the President may use\nmilitary force without congressional authorization. Accordingly, the absence of an\nimmediate self-defense interest does not mean that the President lacked authority for the\nmilitary operations in Libya.\n3 Although President Obama has expressed opposition to Qadhafi\xe2\x80\x99s continued leadership of Libya, we understand that regime change is not an objective of the coalition\xe2\x80\x99s\nmilitary operations. See March 28, 2011 Address (\xe2\x80\x9cOf course, there is no question that\nLibya\xe2\x80\x94and the world\xe2\x80\x94would be better off with Qaddafi out of power. I . . . will actively\npursue [that goal] through non-military means. But broadening our military mission to\ninclude regime change would be a mistake.\xe2\x80\x9d). We therefore do not consider any national\ninterests relating to regime change in assessing the President\xe2\x80\x99s legal authority to order\nmilitary operations in Libya.\n\n34\n\n\x0cAuthority to Use Military Force in Libya\n\nPresident\xe2\x80\x99s determination that \xe2\x80\x9c[i]f the war in the former Yugoslavia\nresumes, \xe2\x80\x98there is a very real risk that it could spread beyond Bosnia, and\ninvolve Europe\xe2\x80\x99s new democracies as well as our NATO allies.\xe2\x80\x99\xe2\x80\x9d Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another\nimportant precedent, President Clinton justified extensive airstrikes in the\nFederal Republic of Yugoslavia (\xe2\x80\x9cFRY\xe2\x80\x9d) in 1999\xe2\x80\x94military action later\nratified by Congress but initially conducted without specific authorization,\nsee Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327\n(2000)\xe2\x80\x94based on concerns about the threat to regional security created by\nthat government\xe2\x80\x99s repressive treatment of the ethnic Albanian population\nin Kosovo. \xe2\x80\x9cThe FRY government\xe2\x80\x99s violence,\xe2\x80\x9d President Clinton explained, \xe2\x80\x9ccreates a conflict with no natural boundaries, pushing refugees\nacross borders and potentially drawing in neighboring countries. The\nKosovo region is a tinderbox that could ignite a wider European war with\ndangerous consequences to the United States.\xe2\x80\x9d Letter to Congressional\nLeaders Reporting on Airstrikes Against Serbian Targets in the Federal\nRepublic of Yugoslavia ( Serbia and Montenegro), 35 Weekly Comp. Pres.\nDoc. 527, 527 (Mar. 26, 1999).\nAs his statements make clear, President Obama determined in this case that\nthe Libyan government\xe2\x80\x99s actions posed similar risks to regional peace and\nsecurity. Much as violence in Bosnia and Kosovo in the 1990s risked creating\nlarge refugee movements, destabilizing neighboring countries, and inviting\nwider conflict, here the Libyan government\xe2\x80\x99s \xe2\x80\x9cillegitimate use of force . . .\n[was] forcing many [civilians] to flee to neighboring countries, thereby destabilizing the peace and security of the region.\xe2\x80\x9d March 21, 2011 Report to\nCongress. \xe2\x80\x9cLeft unaddressed,\xe2\x80\x9d the President noted in his report to Congress,\n\xe2\x80\x9cthe growing instability in Libya could ignite wider instability in the Middle\nEast, with dangerous consequences to the national security interests of the\nUnited States.\xe2\x80\x9d Id. Without outside intervention, Libya\xe2\x80\x99s civilian population\nfaced a \xe2\x80\x9chumanitarian catastrophe,\xe2\x80\x9d id.; as the President put it on another\noccasion, \xe2\x80\x9cinnocent people\xe2\x80\x9d in Libya were \xe2\x80\x9cbeing brutalized\xe2\x80\x9d and Qadhafi\n\xe2\x80\x9cthreaten[ed] a bloodbath that could destabilize an entire region.\xe2\x80\x9d Press Release, Office of the Press Secretary, The White House, Weekly Address:\nPresident Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011),\nhttp://www.whitehouse.gov/the-press-office/2011/03/26/weekly-addresspresident-obama-says-mission-libya-succeeding (last visited ca. Apr. 2011).\nThe risk of regional destabilization in this case was also recognized by the\n35\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nUNSC, which determined in Resolution 1973 that the \xe2\x80\x9csituation\xe2\x80\x9d in Libya\n\xe2\x80\x9cconstitute[d] a threat to international peace and security.\xe2\x80\x9d S.C. Res. 1973. As\nthis Office has previously observed, \xe2\x80\x9c[t]he President is entitled to rely on\xe2\x80\x9d\nsuch UNSC findings \xe2\x80\x9cin making his determination that the interests of the\nUnited States justify providing the military assistance that [the UNSC resolution] calls for.\xe2\x80\x9d Military Forces in Somalia, 16 Op. O.L.C. at 12. 4\nQadhafi\xe2\x80\x99s actions not only endangered regional stability by increasing\nrefugee flows and creating a humanitarian crisis, but, if unchecked, also\ncould have encouraged the repression of other democratic uprisings that\nwere part of a larger movement in the Middle East, thereby further undermining United States foreign policy goals in the region. Against the\nbackground of widespread popular unrest in the region, events in Libya\nformed \xe2\x80\x9cjust one more chapter in the change that is unfolding across the\nMiddle East and North Africa.\xe2\x80\x9d March 18, 2011 Remarks. Qadhafi\xe2\x80\x99s\ncampaign of violence against his own country\xe2\x80\x99s citizens thus might have\nset an example for others in the region, causing \xe2\x80\x9c[t]he democratic impulses that are dawning across the region [to] be eclipsed by the darkest\nform of dictatorship, as repressive leaders concluded that violence is the\nbest strategy to cling to power.\xe2\x80\x9d March 28, 2011 Address. At a minimum,\na massacre in Libya could have imperiled transitions to democratic\ngovernment underway in neighboring Egypt and Tunisia by driving\n\xe2\x80\x9cthousands of additional refugees across Libya\xe2\x80\x99s borders.\xe2\x80\x9d Id. Based on\nthese factors, we believe the President could reasonably find a significant\nnational security interest in preventing Libyan instability from spreading\nelsewhere in this critical region.\nThe second important national interest implicated here, which reinforces the first, is the longstanding U.S. commitment to maintaining the\ncredibility of the United Nations Security Council and the effectiveness\nof its actions to promote international peace and security. Since at least\nthe Korean War, the United States government has recognized that\n\xe2\x80\x9c\xe2\x80\x98[t]he continued existence of the United Nations as an effective interna4 We note, however, that, at least for purposes of domestic law, a Security Council\nresolution is \xe2\x80\x9cnot required as a precondition for Presidential action.\xe2\x80\x9d Military Forces in\nSomalia, 16 Op. O.L.C. at 7. Rather, as we explained in 2004, \xe2\x80\x9cin exercising his authority\nas Commander in Chief and Chief Executive, the President [may] choose to take\xe2\x80\x9d the\nUNSC resolution into account \xe2\x80\x9cin evaluating the foreign policy and national security\ninterests of the United States that are at stake.\xe2\x80\x9d Haiti Deployment II, 28 Op. O.L.C. at 33.\n\n36\n\n\x0cAuthority to Use Military Force in Libya\n\ntional organization is a paramount United States interest.\xe2\x80\x99\xe2\x80\x9d Military\nForces in Somalia, 16 Op. O.L.C. at 11 (quoting Authority of the President to Repel the Attack in Korea, 23 Dep\xe2\x80\x99t of State Bull. 173, 177\n(1950)). Accordingly, although of course the President is not required to\ndirect the use of military force simply because the UNSC has authorized\nit, this Office has recognized that \xe2\x80\x9c\xe2\x80\x98maintaining the credibility of United\nNations Security Council decisions, protecting the security of United\nNations and related relief efforts, and ensuring the effectiveness of United Nations peacekeeping operations can be considered a vital national\ninterest\xe2\x80\x99\xe2\x80\x9d on which the President may rely in determining that U.S.\ninterests justify the use of military force. Proposed Bosnia Deployment,\n19 Op. O.L.C. at 333 (quoting Military Forces in Somalia, 16 Op. O.L.C.\nat 11). Here, the UNSC\xe2\x80\x99s credibility and effectiveness as an instrument\nof global peace and stability were at stake in Libya once the UNSC took\naction to impose a no-fly zone and ensure the safety of civilians\xe2\x80\x94\nparticularly after Qadhafi\xe2\x80\x99s forces ignored the UNSC\xe2\x80\x99s call for a cease\nfire and for the cessation of attacks on civilians. As President Obama\nnoted, without military action to stop Qadhafi\xe2\x80\x99s repression, \xe2\x80\x9c[t]he writ of\nthe United Nations Security Council would have been shown to be little\nmore than empty words, crippling that institution\xe2\x80\x99s future credibility to\nuphold global peace and security.\xe2\x80\x9d March 28, 2011 Address; see also\nMarch 21, 2011 Report to Congress (\xe2\x80\x9cQadhafi\xe2\x80\x99s defiance of the Arab\nLeague, as well as the broader international community . . . represents a\nlawless challenge to the authority of the Security Council and its efforts\nto preserve stability in the region.\xe2\x80\x9d). We think the President could legitimately find that military action by the United States to assist the international coalition in giving effect to UNSC Resolution 1973 was needed to\nsecure \xe2\x80\x9ca substantial national foreign policy objective.\xe2\x80\x9d Military Forces\nin Somalia, 16 Op. O.L.C. at 12.\nWe conclude, therefore, that the use of military force in Libya was supported by sufficiently important national interests to fall within the President\xe2\x80\x99s constitutional power. At the same time, turning to the second\nelement of the analysis, we do not believe that anticipated United States\noperations in Libya amounted to a \xe2\x80\x9cwar\xe2\x80\x9d in the constitutional sense necessitating congressional approval under the Declaration of War Clause. This\ninquiry, as noted, is highly fact-specific and turns on no single factor. See\nProposed Bosnia Deployment, 19 Op. O.L.C. at 334 (reaching conclusion\n37\n\n\x0c35 Op. O.L.C. 20 (2011)\n\nbased on specific \xe2\x80\x9ccircumstances\xe2\x80\x9d); Haiti Deployment I, 18 Op. O.L.C. at\n178 (same). Here, considering all the relevant circumstances, we believe\napplicable historical precedents demonstrate that the limited military\noperations the President anticipated directing were not a \xe2\x80\x9cwar\xe2\x80\x9d for constitutional purposes.\nAs in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999\xe2\x80\x94two military campaigns initiated without a prior declaration of war or other\nspecific congressional authorization\xe2\x80\x94President Obama determined that\nthe use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that\n\xe2\x80\x9c[t]he United States is not going to deploy ground troops in Libya.\xe2\x80\x9d\nMarch 18, 2011 Remarks. The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment\nof ground forces\xe2\x80\x94two factors that this Office has identified as \xe2\x80\x9carguably\xe2\x80\x9d\nindicating \xe2\x80\x9ca greater need for approval [from Congress] at the outset,\xe2\x80\x9d to\navoid creating a situation in which \xe2\x80\x9cCongress may be confronted with\ncircumstances in which the exercise of its power to declare war is effectively foreclosed.\xe2\x80\x9d Proposed Bosnia Deployment, 19 Op. O.L.C. at 333.\nFurthermore, also as in prior operations conducted without a declaration\nof war or other specific authorizing legislation, the anticipated operations\nhere served a \xe2\x80\x9climited mission\xe2\x80\x9d and did not \xe2\x80\x9caim at the conquest or occupation of territory.\xe2\x80\x9d Id. at 332. President Obama directed United States\nforces to \xe2\x80\x9cconduct[] a limited and well-defined mission in support of\ninternational efforts to protect civilians and prevent a humanitarian disaster\xe2\x80\x9d; American airstrikes accordingly were to be \xe2\x80\x9climited in their nature,\nduration, and scope.\xe2\x80\x9d March 21, 2011 Report to Congress. As the President explained, \xe2\x80\x9cwe are not going to use force to go beyond [this] welldefined goal.\xe2\x80\x9d March 18, 2011 Remarks. And although it might not be\ntrue here that \xe2\x80\x9cthe risk of sustained military conflict was negligible,\xe2\x80\x9d the\nanticipated operations also did not involve a \xe2\x80\x9cpreparatory bombardment\xe2\x80\x9d\nin anticipation of a ground invasion\xe2\x80\x94a form of military operation we\ndistinguished from the deployment (without preparatory bombing) of\n20,000 U.S. troops to Haiti in concluding that the latter operation did not\nrequire advance congressional approval. Haiti Deployment I, 18 Op.\nO.L.C. at 176, 179. Considering the historical practice of even intensive\n38\n\n\x0cAuthority to Use Military Force in Libya\n\nmilitary action\xe2\x80\x94such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in\n1999\xe2\x80\x94without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations\nin Libya, we do not think the \xe2\x80\x9canticipated nature, scope, and duration\xe2\x80\x9d of\nthe use of force by the United States in Libya rose to the level of a \xe2\x80\x9cwar\xe2\x80\x9d\nin the constitutional sense, requiring the President to seek a declaration of\nwar or other prior authorization from Congress.\nAccordingly, we conclude that President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya\xe2\x80\x94which were limited in their nature,\nscope, and duration\xe2\x80\x94without prior congressional authorization.\nCAROLINE D. KRASS\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n39\n\n\x0c'


b'Inter-Departmental Disclosure of Information\nSubmitted Under the Shipping Act of 1984\nThe Federal M aritim e Commission is not prohibited by \xc2\xa7 6(j) of the Shipping Act of 1984 (Act)\nfrom disclosing to other Executive Branch departm ents or agencies information concerning\ncarriage agreem ents filed pursuant to the Act, although the Act does prohibit disclosure of\nsuch inform ation to the public.\nSection 6(j) o f the Act is patterned a fte r \xc2\xa7 7A(h) of the Clayton Act, and the legislative history of\nthe latter provision provides some indication that it might prohibit inter-departmental disclo\xc2\xad\nsure o f prem erger information obtained by the Justice Department under the Hart-ScottR odino Act. Nonetheless, in the absence o f evidence o f legislative intent specifically to\nprohibit non-public disclosure o f Shipping Act information, it should not be inferred that\nC ongress intended to override th e general presum ption that information obtained by one\nfederal governm ent agency may be freely shared among federal government agencies.\n\nFebruary 8, 1985\nM\n\nem o ran d um\n\nO p in io n\n\nFederal M\n\nfor th e\n\na r it im e\n\nG\n\neneral\n\nCounsel,\n\nC o m m is s io n\n\nThis responds to your inquiry whether \xc2\xa7 6(j) of the Shipping Act of 1984\n(Act), 46 U.S.C. app. \xc2\xa7 1705(j), prohibits disclosure by the Federal Maritime\nCommission (Commission) of information and documentary material filed\nwith the Commission under \xc2\xa7\xc2\xa7 5 or 6 of the Act to other federal agencies or\nExecutive Branch departments. Your request for an interpretation of \xc2\xa7 6(j)\narises in the context of certain international water carriage agreements filed or\nto be filed with the Commission that involve shipping routes with countries that\nhave entered into bilateral agreements with the United States. The Commission\nmay wish to disclose the information filed with those agreements to the\nDepartments of State and Transportation when the bilateral agreements are\nrenegotiated. Assuming that \xc2\xa7 6(j) does not create an absolute prohibition\nagainst disclosure, your letter also inquires whether \xc2\xa7 6(j) prohibits the Com\xc2\xad\nmission from disclosing such information to other federal agencies or Execu\xc2\xad\ntive Branch departments where there is a showing that the information is\nnecessary for the development of United States foreign policy objectives with\nrespect to international shipping.\nIn this memorandum, we consider the language and legislative history of\n\xc2\xa7 6(j). We also consider \xc2\xa7 7A of the Clayton Act, 15 U.S.C. \xc2\xa7 18a, upon which\nthe Shipping Act is expressly modeled. For the reasons discussed below, we do\n48\n\n\x0cnot believe \xc2\xa7 6(j) prohibits disclosure of Shipping Act information to other\nfederal government agencies in general or, in particular, disclosure in further\xc2\xad\nance of the development of the Executive\xe2\x80\x99s foreign policy objectives in inter\xc2\xad\nnational shipping.\nI. Section 6(j) of the Shipping Act of 1984\nThe Shipping Act of 1984 authorizes the Commission to receive for filing\ncertain agreements that, if not declared unlawful by the Commission or the\ncourts, are exempt from the antitrust laws. 46 U.S.C. app. \xc2\xa7\xc2\xa7 1703-1706. The\nAct also authorizes the Commission to describe the form and manner in which\nan agreement is to be filed and, under \xc2\xa7 6(d), to require the submission of such\ninformation and documents as may be necessary to evaluate the agreement\nunder the substantive standard set forth in \xc2\xa7 6(g).146 U.S.C. app. \xc2\xa7\xc2\xa7 1704-1705.\nSection 6(j) of the Act provides:\nNondisclosure o f submitted material\nExcept for an agreement filed under [\xc2\xa7 5], information and\ndocumentary material filed with the Commission under [\xc2\xa7 5] is\nexempt from disclosure under section 552 of Title 5 [the Free\xc2\xad\ndom of Information Act] and may not be made public except as\nmay be relevant to an administrative or judicial action or pro\xc2\xad\nceeding. This section does not prevent disclosure to either body\nof Congress or to a duly authorized committee or subcommittee\nof Congress.\nThe Commission has promulgated regulations to implement the Act. See 49\nFed. Reg. 22296 (1984); 49 Fed. Reg. 24697 (1984) (codified at 46 C.F.R. Part\n572). The regulations also provide for the confidential treatment of submitted\nmaterial:\n(a) Except for an agreement filed under section 5 of the Act,\nall information submitted to the Commission by the filing party\nwill be exempt from disclosure under 5 U.S.C. 552. Included in\nthis disclosure exemption is information provided in the Infor\xc2\xad\nmation Form, voluntary submissions of additional information,\nreasons for noncompliance, and replies to requests for addi\xc2\xad\ntional information.\n1Section 6(g) provides:\nSubstantially anticom petitive agreem ents\nIf, at any tim e after the filing or effective date o f an agreem ent, the Commission determ ines\nthat the agreem ent is likely, by a reduction in com petition, to produce an unreasonable reduction\nin transportation service o r an unreasonable increase in transportation cost, it may, after notice to\nthe person filing the agreem ent, seek appropriate injunctive relief under subsection (h) of this\nsection.\n46 U.S.C. app. \xc2\xa7 1705(g).\n\n49\n\n\x0c(b) Information which is confidential pursuant to paragraph\n(a) of this section may be disclosed, however, to the extent: (1) It\nis relevant to an administrative or judicial action or proceeding;\nor (2) It is in response to a request from either body of Congress\nor to a duly authorized committee or subcommittee of Congress.\n46 C.F.R. \xc2\xa7 572.608.2\nOn its face, \xc2\xa7 6(j) merely prohibits public disclosure of information and\nmaterials filed with agreements under the Act.3 Because the Commission\nproposes to disclose Shipping Act information to other federal government\nagencies, the relevant question here is whether \xc2\xa7 6(j) also prohibits non-public\ndisclosure of such information.\nThe legislative history of the Act is not helpful in answering this question.\nThe report of the Senate and House conferees on S. 47, the bill which became\nthe Shipping Act, merely states that \xe2\x80\x9csubsection (j) provides for confidential\ntreatment of any information submitted under this section.\xe2\x80\x9d H.R. Conf. Rep.\nNo. 600, 98th Cong., 2d Sess. 30 (1984), reprinted in 1984 U.S.C.C.A.N. 283,\n286. The House Report to accompany H.R. 1878, which was not enacted,\nexplains that the provision for confidential treatment in that bill grants an\nexemption under the Freedom of Information Act for all information and\ndocumentary materials, other than the agreement itself, that have been submit\xc2\xad\nted to the Commission pursuant to \xc2\xa7\xc2\xa7 4 and 5. H.R. Rep. No. 53 (II), 98th\nCong., 1st Sess. 31 (1983), reprinted in 1984 U.S.C.C.A.N. 167, 251. The\noriginal bill, S. 47, contained no comparable section providing for confidential\ntreatment of submitted materials. No Senate Report was submitted with this\nlegislation. The legislative history otherwise appears to be silent with regard to\nthe confidentiality provision.\nThus, nothing in the language or the legislative history of \xc2\xa7 6(j) expressly\nprohibits the type of non-public disclosure contemplated here of confidential\ninformation submitted under the Shipping Act.\n\n2 T he Federal R egister contains supplem entary inform ation explaining the Shipping Act regulations. The\nd escrip tio n o f S ubpart F o f the Rules, covering A ction on A greem ents, states that \xc2\xa7 6 \xe2\x80\x9cpreserves the\nco n fid en tiality o f inform ation submitted w ith agreem ents.\xe2\x80\x9d 4 9 Fed. Reg. at 22302. It further states, in\nreferen ce to 4 6 C .F.R . \xc2\xa7 572.608, that \xe2\x80\x9c [sjectio n 6(j) o f the A ct provides that all inform ation subm itted by a\nfiling p arty o th er than the agreement itself shall be exem pt from disclosure under the Freedom o f Inform ation\nA ct [5 U .S.C . \xc2\xa7 552]. This section of the ru les im plem ents the A ct\xe2\x80\x99s confidentiality provision \xe2\x80\x9d 49 Fed. Reg.\nat 22303.\n3 Section 6 (j) o f the A ct qualifies as an exem ption (b)(3) statute under the Freedom o f Inform ation Act\n(F O IA ), 5 U .S.C. \xc2\xa7 552(b)(3). FOIA \xe2\x80\x9cd o es not apply to m atters that are specifically exem pted from disclo\xc2\xad\nsure by statute . . . provided that such statute (A) requires that th e matters are withheld from the public in such\na m anner as to leave no discretion on the issue, or (B ) establishes particular criteria for w ithholding or refers\nto p articu lar types o f m atters to be w ithheld.\xe2\x80\x9d Id. The O ffice o f Legal Policy, O ffice o f Information and\nPrivacy, does not interpret exemption (b)(3) statutes, in general, to prohibit inter-agency disclosures o f\ninform ation.\n\n50\n\n\x0cII. Section 7 A of the Clayton Act, 15 U.S.C. \xc2\xa7 18a\nThe agreement review procedure established under \xc2\xa7 6 of the Shipping Act\nis modeled expressly on the procedures governing premerger clearance of\nproposed acquisitions and mergers under \xc2\xa7 7A of the Clayton Act, as added by\nthe Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). See\nH.R. Conf. Rep. No. 600, at 30, reprinted in 1984 U.S.C.C.A.N. at 286; see\nalso 49 Fed. Reg. at 22301. Section 7A(h) of the Clayton Act provides for\nconfidential treatment o f premerger information relevant to a proposed acquisi\xc2\xad\ntion submitted for approval to the Federal Trade Commission. The relevant\nlanguage of \xc2\xa7 7A(h) is identical to \xc2\xa7 6(j) of the Shipping Act.\nThe legislative history of the HSR Act concerning premerger information\nprovides little more elucidation on the scope of the prohibition against public\ndisclosure than the legislative history of \xc2\xa7 6(j) of the Shipping Act. The House\nReport to accompany H.R. 14580, Title II of the HSR Act, merely states that\n\xe2\x80\x9cpremerger information submitted under this section is confidential, and may\nnot be disclosed, except in judicial or administrative proceedings.\xe2\x80\x9d H.R. Rep.\nNo. 1373,94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 2572,\n2638. However, Chairman Rodino\xe2\x80\x99s remarks comparing the confidentiality\nprovision in Title II of the HSR Act to a confidentiality provision in Title I of\nthat Act shed some light on the meaning of the provision in Title I.\nTitle I amended the Antitrust Civil Process Act of 1962 by broadening the\navailability of civil investigative demands (CID) to investigate antitrust viola\xc2\xad\ntions, see generally H.R. Rep. No. 1343, 94th Cong., 2d Sess. 1\xe2\x80\x944 (1976),\nreprinted in 1976 U.S.C.C.A.N. 2596, 2596-98, but retained the prohibition\nthat no information produced in response to a CID \xe2\x80\x9cshall be available for\nexamination, without the consent of the person who produced such [information]\n. . . by any individual other than a duly authorized official, employee, or agent\nof the Department of Justice.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1313(c)(3). Title I also provided that\ninformation produced in response to a CID is exempt from disclosure under the\nFreedom of Information Act. Id. \xc2\xa7 1314(g).\nAgainst this background, Chairman Rodino explained:\nThe House applied the sam e two confidentiality safeguards to\nprem erger data that both the House and Senate bills applied to\nCID file s com piled pursuant to title I of the compromise bill.\nThese two safeguards provide that, first, the premerger data is\nexempt from the Freedom of Information Act, so that the Gov\xc2\xad\nernment cannot be forced to disclose it to the public, and second,\nthe Government agencies them selves cannot discretionarily re\xc2\xad\nlease prem erger data to anyone , but can disclose it only in\n\n\xe2\x80\x9cjudicial or administrative proceedings.\xe2\x80\x9d In contrast, the Senate\nbill made the premerger data \xe2\x80\x9csubject\xe2\x80\x9d to the Freedom of Infor\xc2\xad\nmation Act not exempt from it. The compromise bill adopts the\nHouse provisions because premerger data compiled pursuant to\n51\n\n\x0ctitle II of the compromise bill will, in essence, contain the same\nkind o f information as a CID file compiled in a premerger\ninvestigation pursuant to title I of the compromise bill. The\nHouse conferees see no reason why this data should be exempt\nfrom the Freedom of Information Act in the one case, and\nsubject to the Act in the other.\n122 Cong. Rec. 30877 (1976) (emphasis added).\nWe acknowledge that this statement by Chairman Rodino, one of the spon\xc2\xad\nsors o f the legislation, may support the argument that the confidentiality\nprovision in Title II, \xc2\xa7 7A(h) o f the Clayton Act, when read in conjunction with\nthe comparable provision in Title I, prohibits disclosure of premerger informa\xc2\xad\ntion to anyone outside the Department o f Justice. Indeed, based upon this\nreading of the legislative history, the Department\xe2\x80\x99s Antitrust Division has\ninterpreted \xc2\xa7 7A(h) of the Clayton Act to prohibit even non-public disclosure\no f premerger information except within the Department.4\nThe Antitrust Division\xe2\x80\x99s interpretation as applied to disclosure to state\nofficials was recently upheld in a case involving requests by state attorneys\ngeneral for premerger information submitted by private companies under the\nHSR Act. M attox v. FTC, 752 F.2d 116 (5th Cir. 1985). The court determined\nthat disclosure to state law enforcement agencies is a \xe2\x80\x9cpublic\xe2\x80\x9d disclosure\nwithin the meaning of \xc2\xa7 7A(h). Relying on the legislative history of the HSR\nAct discussed above and the plain language o f the statute, the court concluded\nthat disclosure o f premerger information obtained under the HSR Act is strictly\nprohibited except as provided by \xc2\xa7 7A(h), regardless of any assurance of\nconfidentiality.5 Although the court did not expressly consider whether \xc2\xa7 7A(h)\nalso prohibits inter-agency transfers of premerger information obtained under\nthe HSR Act, such a result may be implicit in its holding.\nW e do not view the Fifth C ircuit\xe2\x80\x99s interpretation o f \xc2\xa7 7A(h) of the Clayton\nAct to preclude a different interpretation of \xc2\xa7 6(j) of the Shipping Act, how\xc2\xad\never. Nor do we view the m ere fact that \xc2\xa7 6(j) is modeled on \xc2\xa7 7A(h) as\ndispositive o f the scope of the prohibition in \xc2\xa7 6(j), at least insofar as that\nprohibition relates to disclosure of information among federal agencies. Rather,\nwithout more definitive evidence of a legislative intent to prohibit non-public\ndisclosure of Shipping Act information specifically, we would not infer a\nlegislative intent to overturn the general presumption that information obtained\n4 See A n titru st D ivision M anual (V II-15). In keeping w ith its narrow reading o f this section, the A ntitrust\nD ivision also has interpreted \xc2\xa7 7A(h) to lim it disclosure o f prem erger information in adm inistrative or\nju d ic ia l proceedings to those proceedings to which eith er the A ntitrust Division or the Federal Trade\nC om m ission is a party. Even in those instances, disclosure rem ains discretionary. See A ntitrust Division\nM anual (III-21).\n5 T he State o f T exas had argued, inter a lia , that \xc2\xa7 7A(h) should be construed in light o f \xc2\xa7 6(f) o f the FTC\nA ct, 15 U .S.C . \xc2\xa7 46(f), w hich authorizes the FTC to release, at its discretion, com m ercial or Financial\ninform ation, including prem erger inform ation obtained under the FTC A ct, to federal or state law enforce\xc2\xad\nm ent agencies upon prior certification \xe2\x80\x9c th at such inform ation will be m aintained in confidence and w ill be\nused o n ly fo r official law enforcement purposes." In another case, the district court found this argum ent\npersuasive and rejected the Antitrust D iv isio n \'s interpretation o f \xc2\xa7 7A(h) o f the C layton Act. See Lieberm an\nv. F T C , 598 F. Supp. 669 (D. Conn. 1984).\n\n52\n\n\x0cby one federal government agency is to be freely shared among federal govern\xc2\xad\nment agencies.6\nIt is axiomatic that all information and documents in the possession of\nExecutive Branch agencies are within the control of the President as the head of\nthe Executive Branch. Just as the President exercises supervisory control over\nthe execution of the laws by his subordinates, U.S. Const, art. II, \xc2\xa7 3, the\nPresident ensures that information within the Executive Branch is protected\nfrom disclosure that would, in his judgment, adversely affect the public inter\xc2\xad\nest. See Memorandum to Heads of Executive Branch Departments and Agen\xc2\xad\ncies from President Reagan (Nov. 4, 1982).\nWe believe it follows from these general constitutional principles that a\ndecision by Congress to restrict the flow of information among federal agen\xc2\xad\ncies when such information relates to the performance of the official duties of\nthese agencies must be executed by legislation that leaves no doubt as to\nCongress\xe2\x80\x99 intent. Particularly regarding the development by the President of\nhis foreign policy, it would be untenable to read into the statute at issue here an\nimplied intent to deny to those subordinates of the President charged with the\nformulation of foreign policy those documents and information deemed rel\xc2\xad\nevant to that formulation.\nWe would add that the President\xe2\x80\x99s authority to control the flow of informa\xc2\xad\ntion within and without the Executive Branch carries with it the power to limit\ndistribution o f such information within the Executive Branch. Thus, unless and\nuntil revised by higher authority, we have no doubt about the validity and\nenforceability of the present policy of the Antitrust Division of this Department\nto refuse to transmit certain information gathered by it beyond this Department.\nWe believe the Commission is free, as a matter of law, to adopt a policy of\nproviding the information at issue here to other federal departments and agen\xc2\xad\ncies that have a need for it in connection with carrying out their official\nresponsibilities.\n\nConclusion\nSection 6(j) of the Shipping Act prohibits only \xe2\x80\x9cpublic\xe2\x80\x9d disclosure of infor\xc2\xad\nmation obtained under that Act. Interpreting the language of that statute and its\n6 W e also have considered w hether the Privacy Act, 5 U S.C \xc2\xa7 552a, prohibits disclosure o f Shipping Act\ninform ation to other federal governm ent agencies. That act governs the circum stances under which inform a\xc2\xad\ntion contained in records m aintained on individuals may be disclosed to the public or to other governm ent\nagencies. The Privacy Act defines the term \xe2\x80\x9cindividual\xe2\x80\x9d as \xe2\x80\x9ca citizen o f the U nited States o r an alien law fully\nadm itted for perm anent residence.\xe2\x80\x9d Id. \xc2\xa7 552a(a)(2). The Act defines the term \xe2\x80\x9crecord\xe2\x80\x9d as\nany item, collection, or grouping o f inform ation about an individual that is m aintained by an\nagency, including, but not lim ited to, his education, financial transactions, medical history, and\ncrim inal o r em ploym ent history and that contains his name, or the identifying number, symbol, or\nother identifying particular assigned to the individual, such as finger or voice print o r a photo\xc2\xad\ngraph.\nId. \xc2\xa7 552a(a)(4) (em phasis added) Your O ffice has informed us that com panies or conferences o f com panies,\nand not individuals, file inform ation and docum entary material under the Shipping Act. Therefore, such\nm aterial would not qualify as a \xe2\x80\x9c record\xe2\x80\x9d covered by the Privacy Act and the Privacy Act would not\nindependently prohibit disclosure o f inform ation filed under \xc2\xa7\xc2\xa7 5 o r 6 o f the Shipping Act.\n\n53\n\n\x0csparse legislative history in light of the President\xe2\x80\x99s constitutional responsibili\xc2\xad\nties regarding the control of information within the Executive Branch, we have\nno difficulty concluding that information and documentary material filed with\nthe Commission under \xc2\xa7\xc2\xa7 5 or 6 of the Shipping Act may be disclosed to other\nfederal agencies or Executive Branch departments without violating \xc2\xa7 6(j).\nL a r r y L . S im m s\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n54\n\n\x0c'