b'Applicability of the Presidential Records Act to the\nWhite House Usher\xe2\x80\x99s Office\nBecause the White House Usher\xe2\x80\x99s Office is part of the President\xe2\x80\x99s \xe2\x80\x9cimmediate staff\xe2\x80\x9d or, alternatively,\nwould be \xe2\x80\x9ca unit . . . of the Executive Office of the President whose function is to advise and assist\nthe President,\xe2\x80\x9d any documentary materials \xe2\x80\x9ccreated or received [by the Office] in the course of\nconducting activities which relate to or have an effect upon the carrying out of constitutional,\nstatutory, or other official or ceremonial duties of the President\xe2\x80\x9d constitute \xe2\x80\x9cPresidential records\xe2\x80\x9d\nunder the Presidential Records Act, 44 U.S.C. \xc2\xa7 2201(2).\n\nJuly 13, 2007\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether the Usher\xe2\x80\x99s Office is subject to the recordkeeping requirements of the Presidential Records Act (\xe2\x80\x9cPRA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), 44 U.S.C. \xc2\xa7\xc2\xa7 2201\xe2\x80\x93\n2207 (2006). As discussed below, we believe that, for the purposes of the PRA, the\nUsher\xe2\x80\x99s Office is either part of the \xe2\x80\x9cimmediate staff\xe2\x80\x9d of the President or is \xe2\x80\x9ca unit . . .\nof the Executive Office of the President whose function is to advise and assist the\nPresident.\xe2\x80\x9d Id. \xc2\xa7 2201(2). Therefore, records of the Usher\xe2\x80\x99s Office are subject to the\nAct to the extent that they are \xe2\x80\x9ccreated or received . . . in the course of conducting\nactivities which relate to or have an effect upon the carrying out of constitutional,\nstatutory, or other official or ceremonial duties of the President.\xe2\x80\x9d Id.\nI.\nYou have informed us that the Usher\xe2\x80\x99s Office is generally responsible for managing and operating the Executive Residence of the President\xe2\x80\x94a function that\nincludes preparing and serving meals to the First Family and their guests, performing housekeeping and maintenance services on the Executive Residence, providing\ncuratorial services, greeting visitors, and assisting the President in his performance\nof certain official and ceremonial duties. Letter for Steven G. Bradbury, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, from Fred F.\nFielding, Counsel to the President at 1 (June 6, 2007). In performing its functions,\nthe Usher\xe2\x80\x99s Office generates and receives various paper and electronic materials,\nincluding \xe2\x80\x9cthe daily diary of the First Family, First Family personal access lists,\nevent guest lists, equipment, staffing, and food/beverage orders and invoices, and\nExecutive Residence project work orders and invoices.\xe2\x80\x9d Id. Furthermore, the\nUsher\xe2\x80\x99s Office is operationally part of the Executive Residence and supervises the\nstaff of the Executive Residence. Because the Executive Residence is an entity\nwithin the Executive Office of the President, see Memorandum for Gary Walters,\nChief Usher of the Executive Residence, from Andrew H. Card, Jr., White House\nChief of Staff (June 11, 2002), the Usher\xe2\x80\x99s Office is as well.\n\n194\n\n\x0cApplicability of the Presidential Records Act to the White House Usher\xe2\x80\x99s Office\n\nCongress enacted the PRA in 1978 in order to preserve and make publicly\navailable certain official records generated or received by the President and certain\nindividuals in his service. See H.R. Rep. No. 95-1487, at 2 (1978). Accordingly,\nthe Act mandates the preservation of \xe2\x80\x9cPresidential records,\xe2\x80\x9d which are defined as:\ndocumentary materials, or any reasonably segregable portion thereof,\ncreated or received by the President, his immediate staff, or a unit or\nindividual of the Executive Office of the President whose function is\nto advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.\n44 U.S.C. \xc2\xa7 2201(2). Excluded from the definition of presidential records are\n\xe2\x80\x9cdiaries, journals, or other personal notes . . . which are not prepared or utilized for,\nor circulated or communicated in the course of, transacting Government business.\xe2\x80\x9d\nId. \xc2\xa7 2201(3)(A). Also excluded are \xe2\x80\x9cmaterials relating to private political associations,\xe2\x80\x9d id. \xc2\xa7 2201(3)(B), \xe2\x80\x9cmaterials relating exclusively to the President\xe2\x80\x99s own\nelection[,] . . . and materials directly relating to the election of a particular individual\nor individuals,\xe2\x80\x9d id. \xc2\xa7 2201(3)(C), that have \xe2\x80\x9cno relation to or direct effect upon the\ncarrying out of constitutional, statutory, or other official or ceremonial duties of the\nPresident,\xe2\x80\x9d id. \xc2\xa7 2201(3)(B), (3)(C).\nThe PRA also explicitly excludes from its coverage any \xe2\x80\x9cdocumentary materials\xe2\x80\x9d\nthat are \xe2\x80\x9cofficial records of an agency,\xe2\x80\x9d as the term \xe2\x80\x9cagency\xe2\x80\x9d is defined in the\nFreedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 552(f)(1) (2006). 44 U.S.C.\n\xc2\xa7 2201(2)(B)(i). Such records are covered instead by FOIA and the Federal Records\nAct (\xe2\x80\x9cFRA\xe2\x80\x9d), 44 U.S.C. \xc2\xa7\xc2\xa7 3101\xe2\x80\x933107, 3301\xe2\x80\x933314 (2006), which operate in tandem\nto complement the PRA. Specifically, the FRA requires federal agencies to preserve\ncertain agency records and FOIA requires federal agencies to make such records\npublicly available subject to application of various statutory exemptions. As the\nCourt of Appeals for the D.C. Circuit has explained, \xe2\x80\x9cthe coverage of the FRA is\ncoextensive with the definition of \xe2\x80\x98agency\xe2\x80\x99 in the FOIA . . . . As a result, . . . \xe2\x80\x98[t]he\nFRA describes a class of materials that are federal records subject to its provisions,\nand the PRA describes another, mutually exclusive set of materials that are subject to\na different . . . regime.\xe2\x80\x99\xe2\x80\x9d Armstrong v. Exec. Office of the President, 90 F.3d 553,\n556 (D.C. Cir. 1996) (quoting Armstrong v. Exec. Office of the President, 1 F.3d\n1274, 1293 (D.C. Cir. 1993)). Congress applied the PRA to the President and those\nExecutive Office of the President (\xe2\x80\x9cEOP\xe2\x80\x9d) entities that are not \xe2\x80\x9cagencies\xe2\x80\x9d subject to\nFOIA and the FRA, see H.R. Rep. No. 95-1487, at 3 (1978), and the Supreme Court\nhas held that FOIA\xe2\x80\x94and by implication the FRA\xe2\x80\x94does not apply to \xe2\x80\x9c\xe2\x80\x98the President\xe2\x80\x99s immediate personal staff or units in the Executive Office whose sole function\nis to advise and assist the President.\xe2\x80\x99\xe2\x80\x9d Kissinger v. Reporters Comm. for Freedom of\nthe Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 93-1380, at 15\n\n195\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n(1974)) (legislative history of 1974 amendments to FOIA); Armstrong, 1 F.3d at\n1295; see also Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993).\nII.\nAs discussed below, we conclude that records created or received by the Usher\xe2\x80\x99s Office are covered by the PRA because the Usher\xe2\x80\x99s Office must be viewed\neither as part of the \xe2\x80\x9cimmediate staff\xe2\x80\x9d of the President or as \xe2\x80\x9ca unit . . . of the\nExecutive Office of the President whose function is to advise and assist the\nPresident.\xe2\x80\x9d 44 U.S.C. \xc2\xa7 2201(2).\nA.\nThe PRA provides no definition of the President\xe2\x80\x99s \xe2\x80\x9cimmediate staff,\xe2\x80\x9d and we\nare aware of no judicial decisions interpreting the term in the context of the PRA.\nIn enacting the PRA, however, Congress specifically relied upon and incorporated\nthe conference report on the 1974 amendments to FOIA, which had become law\nonly four years earlier. See H.R. Rep. No. 95-1487, at 11 (1978) (the term\n\xe2\x80\x9cExecutive Office of the President,\xe2\x80\x9d to which FOIA applies, \xe2\x80\x9c\xe2\x80\x98is not interpreted as\nincluding the President\xe2\x80\x99s immediate personal staff or units in the Executive Office\nwhose sole function is to advise and assist the President\xe2\x80\x99\xe2\x80\x9d) (quoting H.R. Conf.\nRep. No. 93-1380, at 15 (1974)). Thus, in determining whether the Usher\xe2\x80\x99s Office\nis part of the President\xe2\x80\x99s \xe2\x80\x9cimmediate staff\xe2\x80\x9d for purposes of the PRA, we look to\nhow courts have interpreted the phrase \xe2\x80\x9cimmediate personal staff\xe2\x80\x9d of the President\nin cases involving the applicability of FOIA. See Smith v. City of Jackson, 544\nU.S. 228, 233 (2005) (\xe2\x80\x9c[W]hen Congress uses the same language in two statutes\nhaving similar purposes, particularly when one is enacted shortly after the other, it\nis appropriate to presume that Congress intended that text to have the same\nmeaning in both statutes.\xe2\x80\x9d).\nNo court has precisely described the composition of the President\xe2\x80\x99s \xe2\x80\x9cimmediate\nstaff\xe2\x80\x9d or \xe2\x80\x9cimmediate personal staff.\xe2\x80\x9d The D.C. Circuit, however, has indicated that\nin the FOIA context \xe2\x80\x9cimmediate personal staff\xe2\x80\x9d includes \xe2\x80\x9cat least those . . .\nindividuals employed in the White House Office.\xe2\x80\x9d Meyer, 981 F.2d at 1293 n.3.\nThe court explained that \xe2\x80\x9c[p]roximity to the President, in the sense of continuing\ninteraction, is surely in part what Congress had in mind when it exempted the\nPresident\xe2\x80\x99s \xe2\x80\x98immediate personal staff\xe2\x80\x99 [from FOIA\xe2\x80\x99s requirements] without\nrequiring a careful examination of its function.\xe2\x80\x9d Id. at 1293. Like the White House\nOffice staff, employees of the Usher\xe2\x80\x99s Office directly interact with the President\non a continuing basis. The Usher\xe2\x80\x99s Office manages the President\xe2\x80\x99s official\nresidence and is closely involved in various daily activities\xe2\x80\x94including preparing\nthe President\xe2\x80\x99s food, greeting his guests, and helping him perform certain official\nand ceremonial functions.\n\n196\n\n\x0cApplicability of the Presidential Records Act to the White House Usher\xe2\x80\x99s Office\n\nMoreover, the Executive Residence\xe2\x80\x94which includes the Usher\xe2\x80\x99s Office\xe2\x80\x94and\nthe White House Office are treated similarly under federal law. Congress has granted\nthe President broad discretion in hiring the employees of both units. The President is\nspecifically authorized to \xe2\x80\x9cappoint and fix the pay of employees\xe2\x80\x9d in the White House\nOffice and the Executive Residence \xe2\x80\x9cwithout regard to any other provision of law\nregulating the employment or compensation of persons in the Government service.\xe2\x80\x9d\n3 U.S.C. \xc2\xa7\xc2\xa7 105(a)(1), (b)(1) (2006). These provisions reflect Congress\xe2\x80\x99s judgment\nthat the President should have complete discretion in hiring staff with whom he\ninteracts on a continuing basis. See Haddon v. Walters, 836 F. Supp. 1, 3 (D.D.C.\n1993) (\xe2\x80\x9cAttempts to limit the President\xe2\x80\x99s power to hire and fire those who work in\nhis own home must be carefully and thoughtfully drawn. We speak here of individuals who occupy positions in close physical proximity to the President.\xe2\x80\x9d); see also\nS. Rep. No. 95-868, at 7 (1978) (explaining that section 105 of title 3 grants the\nPresident \xe2\x80\x9ctotal discretion in the employment, removal, and compensation (within\nthe limits established by this bill) of all employees\xe2\x80\x9d in both the White House Office\nand the Executive Residence). In addition, employees of both the White House\nOffice and the Executive Residence must \xe2\x80\x9cperform such official duties as the\nPresident may prescribe.\xe2\x80\x9d 3 U.S.C. \xc2\xa7\xc2\xa7 105(a)(1) & (b)(1). Due to the similar\nproximity to the President shared by the White House Office and the Usher\xe2\x80\x99s Office,\nwe conclude that the Usher\xe2\x80\x99s Office falls within the President\xe2\x80\x99s \xe2\x80\x9cimmediate staff\xe2\x80\x9d\nfor purposes of the PRA.\nB.\nAlternatively, if the staff of the Usher\xe2\x80\x99s Office were not viewed as part of the\n\xe2\x80\x9cimmediate staff\xe2\x80\x9d of the President, we believe that it would constitute a \xe2\x80\x9cunit . . .\nof the Executive Office of the President whose function is to advise and assist the\nPresident.\xe2\x80\x9d 44 U.S.C. \xc2\xa7 2201(2). This phrase, too, stems from the conference\nreport on the 1974 Freedom of Information Act Amendments, upon which\nCongress specifically relied when it enacted the PRA. See H.R. Conf. Rep. No. 951487, at 11 (1978) (FOIA \xe2\x80\x9c\xe2\x80\x98is not interpreted as including the President\xe2\x80\x99s immediate personal staff or units in the Executive Office whose sole function is to advise\nand assist the President\xe2\x80\x99\xe2\x80\x9d) (quoting H.R. Rep. No. 93-1380, at 15 (1974)).\nCongress intended for the PRA to apply to \xe2\x80\x9call White House and Executive Office\nrecords, except those of a purely private or nonpublic nature, which, as a consequence of the Conference Report language, fall outside the scope of the FOIA\nbecause they are not agency records.\xe2\x80\x9d H.R. Conf. Rep. No. 95-1487, at 11.\nThe D.C. Circuit has held that the staff of the Executive Residence is not an\nagency under FOIA because the sole function of the Executive Residence is to\nadvise and assist the President. See Sweetland v. Walters, 60 F.3d 852, 853\xe2\x80\x9355\n(D.C. Cir. 1995). The court explained that it reached this decision based on the\nfact that the Executive Residence did not exercise any substantial authority\n\n197\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nindependent of the President. Id. at 854 (\xe2\x80\x9c[E]very one of the EOP units that we\nfound to be subject to FOIA has wielded substantial authority independently of the\nPresident. . . . The staff of the Executive Residence exercises none of the independent authority that we found to be critical . . . .\xe2\x80\x9d). Because the Executive\nResidence includes the Usher\xe2\x80\x99s Office, under Sweetland the Usher\xe2\x80\x99s Office is\nlikewise exempt from FOIA as part of an EOP unit whose sole function is to\nadvise and assist the President.\nThe decision in Sweetland contains no discussion of whether the staff of the\nExecutive Residence functions to \xe2\x80\x9cadvise\xe2\x80\x9d the President, strongly suggesting that\nas long as a unit of the EOP exercises no substantial authority independently of the\nPresident, it should be classified as a unit that functions to advise and assist the\nPresident for purposes of being exempt from the FRA and FOIA\xe2\x80\x94and, by\nimplication, being subject to the PRA\xe2\x80\x94regardless of whether the unit in fact\n\xe2\x80\x9cadvises\xe2\x80\x9d the President on official or ceremonial matters. However, even if the\nPRA requires that a unit of the EOP both \xe2\x80\x9cadvise\xe2\x80\x9d and \xe2\x80\x9cassist\xe2\x80\x9d the President in\norder to be covered by the Act, the Usher\xe2\x80\x99s Office would still satisfy this test.\nFirst, the Usher\xe2\x80\x99s Office certainly assists the President. The core functions of the\nUsher\xe2\x80\x99s Office include \xe2\x80\x9cassisting the President in maintaining his home and\ncarrying out his various ceremonial duties.\xe2\x80\x9d Sweetland, 60 F.3d at 854. Second,\nthe Usher\xe2\x80\x99s Office also advises the President in carrying out his ceremonial duties.\nFor example, the Usher\xe2\x80\x99s Office advises the President on what food to serve and\nwhat formalities to follow at an official White House state dinner depending, for\nexample, on cultural sensitivities and differences. Furthermore, the Chief Usher\nadvises the President by serving on the Committee for the Preservation of the\nWhite House, which reports to the President recommendations regarding, inter\nalia, the articles of furniture, fixtures, and decorative objects which shall be used\nor displayed in certain areas of the White House. Exec. Order No. 11145, \xc2\xa7\xc2\xa7 2\xe2\x80\x933,\n3 C.F.R. 123, 123\xe2\x80\x9324 (1964 Supp.).\nIII.\nBecause the Usher\xe2\x80\x99s Office is thus part of the President\xe2\x80\x99s \xe2\x80\x9cimmediate staff\xe2\x80\x9d or,\nalternatively, would be \xe2\x80\x9ca unit . . . of the Executive Office of the President whose\nfunction is to advise and assist the President,\xe2\x80\x9d any documentary materials \xe2\x80\x9ccreated\nor received [by the Office] in the course of conducting activities which relate to or\nhave an effect upon the carrying out of constitutional, statutory, or other official or\nceremonial duties of the President\xe2\x80\x9d constitute \xe2\x80\x9cPresidential records.\xe2\x80\x9d 44 U.S.C.\n\xc2\xa7 2201(2). As noted above, we understand that the Usher\xe2\x80\x99s Office does create and\nreceive documentary materials in the course of conducting activities related to the\nPresident\xe2\x80\x99s various official and ceremonial duties. Such materials constitute\n\xe2\x80\x9cPresidential records\xe2\x80\x9d under the PRA, and, consequently, the Usher\xe2\x80\x99s Office is\n\n198\n\n\x0cApplicability of the Presidential Records Act to the White House Usher\xe2\x80\x99s Office\n\nresponsible for complying with the relevant recordkeeping provisions of the Act\nwith respect to those materials. See id. \xc2\xa7 2203.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n199\n\n\x0c'


b"September 26, 1977\n\n78-86\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nConsultants\xe2\x80\x94 Employment to Assist Presidential\nNominee at His Confirmation Hearing\n(5 U.S.C. \xc2\xa7 3190, 31 U.S.C. \xc2\xa7 628)\n\nThis responds to your request for our opinion as to the legality of paying a\nconsultant (an attorney) from funds appropriated to the W hite House Office to\nassist a nominee to a regulatory agency in his confirmation hearing and to\nprepare the individual to assume his position, if appointed. The question\nappears to be a novel one.\nAuthority to hire consultants is found in 5 U .S.C . \xc2\xa7 3109 (1976) which\nprovides in pertinent part:\n\xc2\xa3\n\n$\n\n$\n\n$\n\n$\n\n(b) W hen authorized by an appropriation or other statute, the head of\nan agency may procure by contract the temporary (not in excess of 1\nyear) or intermittent services of experts or consultants or an organiza\xc2\xad\ntion thereof . . . .\nThe current appropriation for the W hite House authorizes the hiring of\nconsultants in the following terms:\nFor expenses necessary for the White House Office as authorized by\nlaw, including not to exceed $3,850,000 for services as authorized by\n5 U .S.C . 31 09 ,iat such per diem rates for individuals as the President\nmay specify and other personal services without regard to the\nprovisions of law regulating the employment and compensation of\npersons in the Governm ent serv ice.1\nThe Civil Service Commission construes \xc2\xa7 3109 as authorizing the em ploy\xc2\xad\nment of consultants to obtain advice of a specialized nature unavailable within\nthe agency itself, to obtain outside viewpoints, or to acquire the services of\nexperts who are not needed or available full tim e.2 Conversely, the Commis'E xecutive Office A ppropriations A ct, 1977, 90 Stat. 966.\n\n2Federal Personnel Manual. Ch. 304, par. l-3a. W e do not necessarily imply that the White\nHouse Office is subject to the Civil Service C om m ission\xe2\x80\x99s jurisdiction in this respect by citing its\n(Continued)\n\n376\n\n\x0csion disapproves of the use of consultants to do what can be done as well by\nregular em ployees.3 Section 3109 would thus appear to encompass the\nemployment of outside counsel to assist the nominee if, in your judgm ent,\nthis would provide expert or professional services not available within the\nWhite House Office.\nBut \xc2\xa7 3109 does not in itself resolve the problem. We must consider whether\nservices of this type are subject to any other statutory prohibition. Funds\nappropriated to the White House Office are subject, as are agency funds, to the\ngeneral restriction of 31 U .S.C . \xc2\xa7 628 (1976) which provides:\nExcept as otherwise provided by law, sums appropriated for the\nvarious branches of expenditure in the public service shall be applied\nsolely to the objects for which they are respectively made, and for no\nothers.\nWith respect to a general appropriation for necessary expenses, the Comptroller\nGeneral has consistently ruled that expenditures are authorized \xe2\x80\x9c if reasonably\nnecessary or incident\xe2\x80\x9d to the activity for which the funds are appropriated. See,\ne.g ., 50 Comp. Gen. 534 (1971); 29 Comp. Gen. 419 (1950). However,\nexpenditures primarily for the personal benefit of present or prospective\nemployees, rather than for a governmental activity, have been disapproved.4\nThe question is whether assisting a nominee is a \xe2\x80\x9c reasonably necessary\xe2\x80\x9d\nactivity of the White House Office.\nTo our knowledge, neither the Comptroller General nor any other authority\nhas passed on the question. No objection has been raised to the practice of the\nDepartment of Justice of utilizing its own personnel to assist nominees to\npositions in the Department and to the Federal bench by briefing them on their\nprospective duties and by on occasion presenting their background to the Senate\nin the best light. An important function of the White House Office is to assist the\nPresident in presenting his viewpoints to Congress. This would seem to cover\nreasonable advocacy of his nominations. It therefore appears that assisting a\nnominee to be confirmed can be viewed as an ordinary and necessary activity of\nthe White House Office. If the issue were now to be raised with the Comptroller\nGeneral, it may be that he would defer to this longstanding administrative\npractice, particularly since Congress is almost certainly aware of it. Cf. 38\nComp. Gen. 758, 767 (1959); 28 Comp. Gen. 673 (1950).\nThere is, however, a line of Comptroller General decisions holding that \xe2\x80\x9c an\nofficer or employee has on his shoulders the duty o f qualifying him self for the\n(Continued)\ninterpretation o f the statute. The C om m ission's construction is m erely the best available\ninterpretation.\n^Federal Personnel Manual, Ch. 304, par. I-3b.\n\xe2\x80\x9cFor exam ple, medical exam inations o f em ployees at Governm ent expense may be provided\nwithout specific authorization when necessary to the safety o f other em ployees or to prevent loss of\nservices from occupational disease but not when there is no prospect o f harm to the Governm ent\nfrom the em ployee\xe2\x80\x99s illness. Compare 30 Com p. Gen. 387 (1951); 22 Comp. Gen. 32 (1942); with\n33 Com p. Gen. 231 (1953). Sim ilarly, special clothing or equipm ent may be provided at\nGovernm ent expense only if the G overnm ent, rather than the em ployee, receives the prim ary\nbenefit from its use. See 45 Com p. G en. 215 (1965); 3 Comp. Gen. 433 (1924).\n\n377\n\n\x0cperformance o f his official d u ties.\xe2\x80\x9d 22 Comp. Gen. 460, 461 (1942). Thus, the\nCom ptroller General has disapproved paym ent of bar admission fees,5\nreimbursement for preem ploym ent examinations by private doctors,6 and use\nof a general appropriation to employ a doctor to give preemployment\nexaminations on a regular basis.7 We doubt that these decisions apply to the\npresent case because obtaining Senate confirmation for a Presidential appoint\xc2\xad\nment differs from ordinary employment. W hile assisting a nominee may serve\nthe nom inee\xe2\x80\x99s personal interest, it also advances the official interests of the\nPresidency. The confirmation process can therefore be viewed as more than\nsimply personal qualification o f the nominee. On that basis, we think that\nWhite House Office funds may be expended to protect the official interest\ninvolved.\n\nL eon U lm an\n\nD epu ty A ssistant Attorney G eneral\nOffice o f L egal Counsel\n\nS51 Com p. G en. 701 (1972); 47 C om p. G en. 116 (1967); 22 C om p. G en. 460 (1942).\n631 C om p. G en. 465 (1952).\n722 Com p. G en. 243 (1942).\n\n378\n\n\x0c"


b'Centralizing Border Control Policy Under the\nSupervision of the Attorney General\nIn general, the President may not transfer the functions of an agency statutorily created within one\nCabinet department to another Cabinet department without an act of Congress.\nThe President may not delegate his presidential authority to supervise and control the executive\ndepartments to a particular member of the Cabinet where no statutory authority exists to do so.\nThe President may exercise his own power to establish a comprehensive border control policy for the\nfederal government and direct a single Cabinet member to lead and coordinate the efforts of all\nCabinet agencies to implement that policy.\n\nMarch 20, 2002\n\nLETTER OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked us to provide our views concerning what actions the President\ncan take unilaterally and without congressional consent towards centralizing\nborder control policy for the United States Government under the supervision of\nthe Attorney General of the United States.\nUnder current law, * the federal government\xe2\x80\x99s control over the flow of people\nand goods into and out of the United States is divided among several agencies in\ndifferent Cabinet departments, rather than centralized in a single department. The\nImmigration and Naturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) is statutorily housed in the\nDepartment of Justice, the U.S. Customs Service in the Department of the\nTreasury, and the U.S. Coast Guard in the Department of Transportation. Thus,\neach agency is headed by a different Cabinet secretary, each of whom, as principal\nofficers of the federal government, reports directly to the President.\nIn general, the President may not transfer the functions of an agency statutorily\ncreated within one Cabinet department to another Cabinet department without an\nact of Congress. We likewise believe that the President may not effectuate that\nvery same transfer simply by delegating his presidential authority to supervise and\ncontrol the executive departments to a particular member of the Cabinet, at least\nwhere no statutory authority exists to do so. However, the President may exercise\nhis own power to establish a comprehensive border control policy for the federal\n\n*\nEditor\xe2\x80\x99s Note: The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, established the Department of Homeland Security (\xe2\x80\x9cDHS\xe2\x80\x9d) as a Cabinet-level department and reorganized\nthe allocation of statutory duties respecting border control policy that were the subject of this opinion.\nSee 6 U.S.C. \xc2\xa7 111(a) (Supp. II 2002) (establishing DHS); id. \xc2\xa7 202(2)-(6) (listing DHS\xe2\x80\x99s border\ncontrol responsibilities); id. \xc2\xa7 211(a) (establishing within DHS the United States Customs Service); id.\n\xc2\xa7 251 (transferring to DHS certain functions of the Immigration and Naturalization Service); id.\n\xc2\xa7 291(a) (abolishing the Immigration and Naturalization Service); id. \xc2\xa7 468(b) (transferring to DHS the\nfunctions of the Coast Guard).\n\n22\n\n227-329 VOL_26_PROOF.pdf 32\n\n10/22/12 11:13 AM\n\n\x0cCentralizing Border Control Policy Under the Attorney General\n\ngovernment, and then direct a single Cabinet member to lead and coordinate the\nefforts of all Cabinet agencies to implement that policy.\nI.\nThe Constitution expressly provides that \xe2\x80\x9c[t]he executive Power shall be vested\nin a President of the United States of America.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 1, cl. 1. He\nalone is charged with the power to nominate the principal officers, id. art. II, \xc2\xa7 2,\ncl. 2, and to \xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d id. art. II, \xc2\xa7 3. It is\nthus well established that the President is \xe2\x80\x9cnot only the depositary of the executive\npower, but the responsible executive minister of the United States.\xe2\x80\x9d Relation of the\nPresident to the Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. 453, 463 (1855).\nThe scope of the President\xe2\x80\x99s executive power is limited, however, by the terms\nof all valid acts of Congress. Under the Constitution, it is Congress, not the\nPresident, that \xe2\x80\x9cmake[s] all Laws which shall be necessary and proper for carrying\ninto Execution . . . all . . . Powers vested by this Constitution in the Government of\nthe United States, or in any Department or Officer thereof.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8,\ncl. 18.\nAccordingly, Congress may prescribe that a particular executive function may\nbe performed only by a designated official within the Executive Branch, and not\nby the President. The executive power confers upon the President the authority to\nsupervise and control that official in the performance of those duties, but the\nPresident is not constitutionally entitled to perform those tasks himself. It has long\nbeen established that, \xe2\x80\x9c[i]f the laws . . . require a particular officer by name to\nperform a duty, not only is that officer bound to perform it, but no other officer\ncan perform it without a violation of the law; and were the President to perform it,\nhe would not only be not taking care that the laws were faithfully executed, but he\nwould be violating them himself.\xe2\x80\x9d The President and Accounting Officers, 1 Op.\nAtt\xe2\x80\x99y Gen. 624, 625 (1823). Instead the President may control the officer through\nvarious means such as the threat of removal. See, e.g., The Jewels of the Princess\nof Orange, 2 Op. Att\xe2\x80\x99y Gen. 482, 489 (1831) (although the President \xe2\x80\x9ccould only\nact through his subordinate officer . . . who is responsible to him, and who holds\nhis office at his pleasure,\xe2\x80\x9d the power of \xe2\x80\x9cremoval of the disobedient officer, and\nthe substitution of one more worthy in his place, would enable the President,\nthrough him, faithfully to execute the law\xe2\x80\x9d).\nWe therefore conclude that the President may not transfer the statutory duties\nand functions of a bureau in one Cabinet department to another Cabinet department without an act of Congress. This Office has long held that transfers of\nstatutory authority from one department to another \xe2\x80\x9cmay normally be accomplished only by legislation or by executive reorganization under the Reorganization Act.\xe2\x80\x9d Litigating Authority of the Office of Federal Inspector, Alaska Natural\nGas Transportation System, 4B Op. O.L.C. 820, 823 (1980); see also Department\n\n23\n\n227-329 VOL_26_PROOF.pdf 33\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nof Labor Jurisdiction to Investigate Certain Criminal Matters, 10 Op. O.L.C. 130,\n132 (1986) (same). The Reorganization Act, 5 U.S.C. \xc2\xa7\xc2\xa7 901 et seq., once\nprovided the President with a mechanism for instituting \xe2\x80\x9cexecutive reorganization\xe2\x80\x9d\nplans, subject to congressional veto, but Congress retired that authority at the end\nof 1984, see 5 U.S.C. \xc2\xa7 905(b).\nII.\nIt has been suggested that the President might reorganize government operations without running afoul of the law simply by delegating to a particular\nindividual the President\xe2\x80\x99s own constitutionally based executive power to supervise\nand control certain executive functions. Under this theory, the President could\neffectively transfer power over a particular matter from one Cabinet department to\nanother by delegating to the head of that department the President\xe2\x80\x99s power to\nsupervise and control the actions of a subCabinet official in another department,\nand to enforce that control through the removal power.\nWe believe that courts could well decide, however, that the President\xe2\x80\x99s delegation powers do not extend so far because some \xe2\x80\x9cspecific things must be done by\nthe President himself.\xe2\x80\x9d Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. at 464. Moreover, we caution that an unlawful delegation of power could present serious\nconsequences for law enforcement in future cases. See, e.g., United States v. SotoSoto, 598 F.2d 545, 549-50 (9th Cir. 1979) (where FBI agent was not authorized\nby statute to search trucks at border, customs authority had not been delegated to\nagent, and agent conducted search to discover if truck was stolen rather than to\nenforce importation law, agent\xe2\x80\x99s warrantless search of truck was improper and\nevidence seized from search was inadmissible under exclusionary rule).\nWith regard to the President\xe2\x80\x99s statutory duties, \xe2\x80\x9cit is well settled that there\nexists in the President an inherent right of delegation.\xe2\x80\x9d Memorandum for the Files,\nOffice of Legal Counsel, Re: Delegation of Presidential Functions at ii (Sept. 1,\n1955) (\xe2\x80\x9c1955 Memo\xe2\x80\x9d). As stated in Myers v. United States, 272 U.S. 52 (1926),\n\xe2\x80\x9c[t]he vesting of the executive power in the President was essentially a grant of the\npower to execute the laws. But the President alone and unaided could not execute\nthe laws. He must execute them by the assistance of subordinates.\xe2\x80\x9d Id. at 117; see\nalso 3 U.S.C. \xc2\xa7 301 (authorizing President to delegate \xe2\x80\x9cany function which is\nvested in the President by law\xe2\x80\x9d or \xe2\x80\x9cany function which [an] officer is required or\nauthorized by law to perform only with or subject to the approval, ratification, or\nother action of the President\xe2\x80\x9d).\nGenerally speaking, however, \xe2\x80\x9cacts performable by the President[] as prescribed by the Constitution are not susceptible of delegation.\xe2\x80\x9d 1955 Memo at ii\n(emphasis added). As the Supreme Court has noted,\n\n24\n\n227-329 VOL_26_PROOF.pdf 34\n\n10/22/12 11:13 AM\n\n\x0cCentralizing Border Control Policy Under the Attorney General\n\n[t]here are, undoubtedly, official acts which the Constitution and\nlaws require to be performed by the President personally, and the\nperformance of which may not be delegated to heads of departments,\nor to other officers in the executive branch of the Government.\nMcElrath v. United States, 102 U.S. 426, 436 (1880). Thus, the Executive Branch\nhas always understood that the President may not delegate his pardon power to\n\xe2\x80\x9canother man, the Attorney General or anybody else.\xe2\x80\x9d Executive Departments,\n7 Op. Att\xe2\x80\x99y Gen. at 464-65. Nor can the President delegate his power to appoint\nand remove Executive Branch officials. See id. at 465; 1955 Memo at 1-2 (listing\n\xe2\x80\x9c[o]rders removing Government Officials from office\xe2\x80\x9d among those \xe2\x80\x9cactions not\ndelegable\xe2\x80\x9d).\nTo be sure, \xe2\x80\x9c[w]hether a particular act belongs to one or the other of these\nclasses may sometimes be very difficult to determine.\xe2\x80\x9d McElrath, 102 U.S. at 436.\nWe think it likely, however, that the President\xe2\x80\x99s authority to control and supervise\nExecutive Branch officials in one Cabinet department could not be delegated to a\nseparate Cabinet department. After all, such authority rests substantially on the\nPresident\xe2\x80\x99s removal power, a power that has long been understood not to be\ndelegable. In addition, further support for our conclusion is found in our earlier\nopinion in which we raised doubts about the President\xe2\x80\x99s ability to delegate his\npower to issue \xe2\x80\x9cDirectives and Memorandums to Heads of Executive Departments\nand Agencies.\xe2\x80\x9d In that opinion, we stated that \xe2\x80\x9c[i]t is certainly questionable\nwhether any one [sic] but the President personally could issue such a directive.\xe2\x80\x9d\n1955 Memo at *65-66. Likewise, we have opined that, where \xe2\x80\x9cthe head of a\ndepartment or agency is authorized to take [a particular action] by law but . . . does\nnot wish to take the action . . . without the President\xe2\x80\x99s approval or advice[,] the\nsituation is one that normally calls for the personal attention of the President\xe2\x80\x9d and\nis therefore nondelegable. Id. at *67. * We see no meaningful difference between\nthese presidential authorities and the supervisory power over executive departments sought to be delegated in the present circumstance.\nIII.\nWe believe that there are other ways, however, for the President to take steps to\ncentralize and coordinate the border control policy of the United States or to direct\n\n*\nEditor\xe2\x80\x99s Note: We refer here to star pages in the 1955 Memo because the original memo preserved\nin our day books is missing some pages at the end. The star pages that we cite in text are from a\ndigitized copy that we used to replace the missing pages in our day books.\nIt should be noted that the 1955 Memo does not appear to have been a formal opinion or advice\nissued to a client but an internal reference. The Memo was also equivocal in its bottom-line assessment\nof whether the head of a department could actually delegate a statutory authority to the President. The\nquestion, the Memo said, was \xe2\x80\x9ctoo indefinite in nature to permit any conclusion to be made.\xe2\x80\x9d Id.\n\n25\n\n227-329 VOL_26_PROOF.pdf 35\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nthe Attorney General to lead that effort. That the President\xe2\x80\x99s constitutional\nauthority to supervise all Executive Branch agencies engaged in border control\noperations is probably not subject to delegation does not necessarily mean that the\nPresident may not formally and publicly designate certain Cabinet officers to assist\nhim in that effort.\nThe President may tap advisers within the White House or even outside the\nExecutive Office of the President to work on his behalf. See Memorandum for\nMargaret McKenna, Deputy Counsel to the President, from John M. Harmon,\nAssistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers at 2 (Aug. 11, 1977) (\xe2\x80\x9c1977 Memo\xe2\x80\x9d) (unlike \xe2\x80\x9cheads of departments\nor agencies,\xe2\x80\x9d who \xe2\x80\x9chave statutory obligations\xe2\x80\x9d and \xe2\x80\x9ccan and do act independently\xe2\x80\x9d\nof the President, the \xe2\x80\x9csole function\xe2\x80\x9d of certain White House advisers \xe2\x80\x9cis to advise\nthe President relative to his statutory and constitutional responsibilities,\xe2\x80\x9d and such\nadvisers only \xe2\x80\x9cact at the direction of the President\xe2\x80\x9d). Although they carry no\nformal legal authority, in practice such advisers may exercise substantial authority\nover Executive Branch officials if it is well understood that they speak on behalf\nof the President. Cf. Ass\xe2\x80\x99n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d\n898, 905 (D.C. Cir. 1993) (recognizing \xe2\x80\x9c[t]he President\xe2\x80\x99s implicit authority to\nenlist his spouse in aid of the discharge of his federal duties\xe2\x80\x9d).\nThe President similarly may designate Cabinet officers to advise him on his\nexecution of nondelegable presidential duties. We have previously noted that\nindividuals \xe2\x80\x9cwho . . . have statutory obligations\xe2\x80\x9d as \xe2\x80\x9cheads of departments or\nagencies\xe2\x80\x9d may also be called upon to \xe2\x80\x9cadvise the president and act at his direction.\xe2\x80\x9d 1977 Memo at 2. See also Am. Physicians, 997 F.2d at 908 (noting that\n\xe2\x80\x9cPresidents have created advisory groups composed of . . . Government officials . . . to meet periodically and advise them . . . on matters such as the conduct\nof a war\xe2\x80\x9d).\nThus, the President may designate the Attorney General to serve as his chief\nadviser on issues relating to border control and instruct all other departments that\nthe Attorney General speaks for him with respect to such policies. To be sure, the\nAttorney General could not exercise any nondelegable, presidential legal power\nover such agencies. For example, an official of that agency would not be subject to\nremoval by the Attorney General. But the President could inform the heads of\nrelevant agencies that he has directed the Attorney General to coordinate the\nimplementation of specific border policies that the President has developed upon\nthe advice of the Attorney General.\nThere is precedent for formalizing such informal arrangements through the\nissuance of an executive order. Such orders make no explicit delegations of legal\npower, but instead implicitly announce allocations of authority by designating a\nparticular Cabinet official as a presidential adviser or leader and coordinator of\npresidential policy. Executive Order 12250 of November 2, 1980, styled \xe2\x80\x9cLeadership and Coordination of Nondiscrimination Laws,\xe2\x80\x9d delegated certain statutory\n\n26\n\n227-329 VOL_26_PROOF.pdf 36\n\n10/22/12 11:13 AM\n\n\x0cCentralizing Border Control Policy Under the Attorney General\n\npresidential powers to the Attorney General. Id. \xc2\xa7 1-1. But the Order also directed\nthe Attorney General to \xe2\x80\x9ccoordinate the implementation and enforcement by\nExecutive agencies of various nondiscrimination provisions\xe2\x80\x9d contained in federal\nlaw, in order to further the President\xe2\x80\x99s policy of \xe2\x80\x9cconsistent and effective implementation of various laws prohibiting discriminatory practices in Federal programs\nand programs receiving Federal Financial assistance.\xe2\x80\x9d Id. \xc2\xa7 1-201, pmbl. The\nOrder further directed all agencies to cooperate with the Attorney General and to\nissue only regulations that are \xe2\x80\x9cconsistent with the requirements prescribed by the\nAttorney General pursuant to this Order\xe2\x80\x9d to the extent permitted by law. Id.\n\xc2\xa7 1-402.\nAnother model is Executive Order 13228 of October 8, 2001, which established\nthe Office of Homeland Security within the Executive Office of the President.\nAlthough that office has no statutory approval, the President directed the office to\n\xe2\x80\x9cdevelop and coordinate the implementation of a comprehensive national strategy\nto secure the United States from terrorist threats or attacks\xe2\x80\x9d and to \xe2\x80\x9cwork with\nexecutive departments and agencies, State and local governments, and private\nentities to ensure the adequacy of the national strategy.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 2, 3(a). Moreover,\nthe order expressly states that it \xe2\x80\x9cdoes not alter the existing authorities of United\nStates Government departments and agencies.\xe2\x80\x9d Id. \xc2\xa7 7. These orders thus merely\ncreate informal arrangements through which presidential policies are developed;\nthey do nothing to disturb the statutory allocation of authorities amongst different\nagencies. Cf. Proposed Executive Order Entitled \xe2\x80\x9cFederal Regulation,\xe2\x80\x9d 5 Op.\nO.L.C. 59, 63 (1981) (approving executive order authorizing Director of the Office\nof Management and Budget to take certain oversight actions with regard to the\nadministrative process and noting that \xe2\x80\x9c[t]he order does not empower the Director . . . to displace the relevant agencies in discharging their statutory functions or\nin assessing and weighing the costs and benefits of proposed actions\xe2\x80\x9d).\nAccordingly, the President could issue an executive order that announces the\nPresident\xe2\x80\x99s intention to develop a comprehensive national strategy to control the\nflow of people and goods across United States borders. This order would be\nundertaken to protect the national security and promote enforcement of federal\nlaw. The order could state the President\xe2\x80\x99s intention to develop and maintain his\nborder control policy only in close consultation with the Attorney General. The\norder could further require the Attorney General to lead and coordinate the effort\nof all federal agencies to comply with the President\xe2\x80\x99s evolving policy, and direct\nall agencies to cooperate with the Attorney General.\nSuch an order would not vest the Attorney General with legal authority to\ncontrol the actions of, for example, the Customs Service. The Customs Service\nwould still take its orders from the Secretary of the Treasury, who in turn would\nreceive policy direction from the President, acting through the Attorney General. If\nthe Commissioner of the Customs Service or the Treasury Secretary were to refuse\nto carry out a specific directive from the Attorney General, the Attorney General\n\n27\n\n227-329 VOL_26_PROOF.pdf 37\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nwould have no authority to remove them or otherwise compel their acquiescence.\nAt the same time, however, they would be contravening a presidential order and\ncould be subject to presidential removal or other sanction. We believe that if the\nCommissioner or the Treasury Secretary disagreed with a policy communication\nfrom the Attorney General, the more likely course of action would be to appeal to\nthe President to seek a clarification or modification of policy.\nFinally, we note the existence of certain statutory authorities for improving\ncoordination between border control agencies which the order might direct the\nAttorney General to utilize. For example, under 8 U.S.C. \xc2\xa7 1103(a)(6), the\nAttorney General may, with the consent of the head of another department, use an\nemployee of that department to assist in performing the border control functions of\nthe INS. The order thus could direct certain agencies to consent to such an\narrangement. Similarly, 14 U.S.C. \xc2\xa7 141 authorizes the Coast Guard both to lend\nits services and facilities to other agencies, and to avail itself of the resources of\nother agencies. The order might direct such cooperation between the Coast Guard\nand the Attorney General. We are not aware of any such authorities with respect to\nthe Customs Service, however.\nJOHN C. YOO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n28\n\n227-329 VOL_26_PROOF.pdf 38\n\n10/22/12 11:13 AM\n\n\x0c'


b'Applicability of the Hatch Act to the Chairman of the Native\nHawaiians Study Commission\nT he Native Hawaiians Study Commission is an \xe2\x80\x9c Executive agency\xe2\x80\x9d whose employees are covered by\nthe H atch A ct, even though its functions are by statute confined to advising Congress. The parttim e C hairm an o f the Commission is covered by the Hatch Act on the days she is paid to perform\ngovernm ent services,\n\nJune 3, 1982\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, LAND AND NATURAL RESOURCES DIVISION\nThis responds to your request regarding the applicability of the Hatch Act to\nthe Chairman of the Native Hawaiians Study Commission (Commission). Based\non the memorandum accompanying your request, and on subsequent con\xc2\xad\nversations with attorneys in the Lands Division, it is our understanding that the\nChairman intends to announce her candidacy for Lieutenant Governor of Hawaii.\nShe currently serves as a delegate to the State Legislature of Hawaii.\nThe Commission was established in 1980 pursuant to the Native Hawaiians\nStudy Commission Act (NHSCA). Pub. L. No. 96-565, Title III, 94 Stat. 3321,\n3324-3327 (1980), 42 U.S.C. \xc2\xa7 2991a note (Supp. V 1981). The NHSCA directs\nthe Commission to \xe2\x80\x9c conduct a study of the culture, needs, and concerns of Native\nHawaiians.\xe2\x80\x9d \xc2\xa7 303(a). The Commission is to publish \xe2\x80\x9c a draft report of the\nfindings of the Study,\xe2\x80\x9d to distribute the draft to \xe2\x80\x9c appropriate\xe2\x80\x9d federal and state\nagencies, native Hawaiian organizations, and the interested public, and to solicit\ntheir written comments. \xc2\xa7 303(c). The Commission is also directed to issue a\n\xe2\x80\x9c final report of the results of this Study\xe2\x80\x9d and to send copies to the President and\nto two congressional committees.1 \xc2\xa7 303(d). Finally the NHSCA directs the\nCommission to \xe2\x80\x9c make recommendations to the Congress based on its findings\nand conclusions [from the Study].\xe2\x80\x9d \xc2\xa7 303(e). See generally Memorandum Opin\xc2\xad\nion for the Chairman, Native Hawaiians Study Commission, from Theodore B.\nOlson, Assistant Attorney General, Office of Legal Counsel (Jan. 4, 1982).*\n\n1 The two committees are the Committee on Energy and Natural Resources of the Senate and the Committee on\nInterior and Insular Affairs of the House o f Representatives\n* N o t e - The January 4, 1982, opinion (\xe2\x80\x9cApplicability of the Federal Advisory Committee Act and the Govern\xc2\xad\nment in the Sunshine Act to the Native Hawaiians Study Commission\xe2\x80\x9d ) appears in this volume at p. 39, supra. Ed.\n\n292\n\n\x0cThe members of the Commission were appointed by the President, who\ndesignated the Chairman and Vice Chairman. These appointments were not\nsubject to the advice and consent of the Senate. \xc2\xa7 302(b), (c). Commission\nmembers who are not otherwise fulltime officers or employees of the United\nStates receive $100 for each day they are engaged in performing Commission\nduties. \xc2\xa7 302(g). All Commission members also receive travel expenses.\n\xc2\xa7 302(h).\nBased on our review of the materials forwarded to us and the NHSCA, we\nconclude that the Commission Chairman is subject to the Hatch Act on the days\nshe is compensated for Commission business. We note, however, that the Special\nCounsel, Office of Personnel Management, is charged with primary jurisdiction\nover the Hatch Act, and that more particular advice regarding application of the\nHatch Act to Commission members may be obtained from that Office. We have\nalso addressed briefly certain other statutory or regulatory provisions that may be\napplicable.\nI. The Hatch Act\nThe Hatch Act, 5 U.S.C. \xc2\xa7 7324 (1976), provides in relevant part:\n(a) An employee in an Executive agency . . . may not\xe2\x80\x94\n(1) use his official authority or influence for the purpose of\ninterfering with or affecting the result of an election; or\n(2) take an active part in political management or in political\ncampaigns.\nTwo initial questions are raised by this provision: (1) Is the Commission an\n\xe2\x80\x9c Executive agency\xe2\x80\x9d within the meaning of the Act; and (2) Is the Chairman a\ncovered employee?\nA. Is the Commission an "Executive Agency\xe2\x80\x9d ?\n\nAn \xe2\x80\x9cExecutive agency\xe2\x80\x9d is defined in 5 U.S.C. \xc2\xa7 105 (1976) as \xe2\x80\x9c an Executive\ndepartment, a Government Corporation, or an independent establishment.\xe2\x80\x9d The\nCommission is neither an executive department, see 5 U.S.C. \xc2\xa7 101 (1976), nor\na government corporation, see 5 U.S.C. \xc2\xa7 103 (1976). However, an \xe2\x80\x9c independ\xc2\xad\nent establishment\xe2\x80\x9d is essentially any other organization within the Executive\nBranch. See 5 U.S.C. \xc2\xa7 104 (1976).2Thus, if the Commission is an entity within\nthe Executive Branch, it is an \xe2\x80\x9c Executive agency\xe2\x80\x9d within the meaning of the\nHatch Act.\n2 5 U S C. \xc2\xa7 104 provides\nFor the purposes of this title, \xe2\x80\x9c independent establishment\xe2\x80\x9d means\xe2\x80\x94\n(1) an establishment m the executive branch (other than the United States Postal Service or the\nPostal Rate Commission) which is not an Executive department, military department, Govern\xc2\xad\nment corporation, or part thereof, or part of an independent establishment, and\n(2) the General Accounting Office.\n\n293\n\n\x0cWhether the Commission falls within the Executive Branch or the Legislative\nBranch is a difficult question because of the Commission\xe2\x80\x99s hybrid nature. Several\nfactors point to its being non-executive. First, the Commission was established to\nadvise Congress rather than the President or executive agencies. See Gannett\nNews Service, Inc. v. Native Hawaiians Study Commission, Civ. No. 82-0163,\nslip op. at 5 (D.D.C. June 1, 1982) (holding that the Commission is not advisory\nto the Executive and is therefore not subject to the Federal Advisory Committee\nAct); January 4, 1982 Memorandum Opinion, supra. Second, the Commission\nwas initially funded from the contingent fund of the Senate, \xc2\xa7 307(a), thus\nindicating its close ties with the Legislative Branch.\nOur prior conclusion that the Commission was not \xe2\x80\x9c established\xe2\x80\x9d to advise the\nPresident or federal agencies pointed out that the Commission would nonetheless\nbe subject to the Federal Advisory Committee Act (FACA) were it so utilized by\nthe President or federal agencies. See January 4, 1982 Memorandum Opinion,\nsupra. In other words, the Commission could become advisory to the Executive\nby its actions or the ways in which it was used in the Executive Branch. This\npossibility serves to point out that there is not always a bright line dividing the\nLegislative and Executive Branches, and that an advisory function to one branch\ndoes not preclude a similar function to another. Thus, while the fact that the\nCommission was established as advisory to Congress deserves special weight in\nassessing whether the Commission falls within the Executive Branch, this factor\nalone need not be conclusive.\nOther factors, in fact, suggest that the Commission is in the Executive Branch.\nFirst, the members of the Commission are appointed solely by the President,\n\xc2\xa7 302(b), who also designates the Chairman and Vice Chairman, \xc2\xa7 302(c), and\nwho is responsible for calling its first meeting, \xc2\xa7 302(e). Several Commission\nmembers are fulltime employees in the Executive Branch. Second, although the\nCommission is advisory only to Congress because it makes recommendations\nonly to Congress, \xc2\xa7 303(e), its final report and written comments are submitted\nto the President as well as to Senate and House committees, \xc2\xa7 303(d). Third, the\nCommission is now funded from appropriations for the Executive Branch out of\nthe Unanticipated Needs Fund, which is an item in the appropriations for the\nExecutive Office of the President. Executive Office Appropriations Act of 1980,\nPub. L. No. 96-74, 93 Stat. 565 (1979). Finally, the Commission\xe2\x80\x99s office space is\nlocated in an executive department, the Department of the Interior, from which it\nreceives staff support. These factors tend to support a conclusion that the\nCommission is established within the Executive Branch.\nNot all committees in the Executive Branch are advisory in nature, as the\nOffice of Legal Counsel has previously recognized. See Memorandum Opinion\nfor the Acting Director, Executive Office of United States Attorneys, 5 Op.\nO.L.C. 283 (1981) (possible to construct committee that is not advisory but is\nrather intended to exchange information and data). Furthermore, a commission\nmay have dual responsibilities\xe2\x80\x94 as in this case, advisory to Congress, fact\xc2\xad\nfinding and reporting to the President\xe2\x80\x94 without necessarily losing its character as\nan executive entity.\n294\n\n\x0cOh the one hand, therefore, we are faced with a body established to advise\nCongress, whose role in conducting a study, publishing a report, and making\nrecommendations to Congress might be viewed as merely in aid of Congress\xe2\x80\x99\nlegislative functions. See Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam).\nOn the other hand, however, the Commission\xe2\x80\x99s members are appointed solely by\nthe President and include executive officers; it is funded out of and physically\nlocated in the Executive Branch; and its responsibilities include fact-finding and\nreporting to the President. Furthermore, the making of recommendations to\nCongress is not a purely legislative function, but falls squarely within the duties\nand powers of the Executive. See U.S. Const. Art. 2, cl. 3. Thus, even the\nmandate of the Commission to make recommendations to Congress need not be\nviewed as inconsistent with executive functions. Although we recognize that this\nis a difficult question, we conclude that the circumstances viewed as a whole\npoint to the Commission as an entity within the Executive Branch.\nB. Are Commission Members Covered Employees?\n\nThe Hatch Act applies generally to employees in executive agencies, with\ncertain specified exceptions. See 5 U.S.C. \xc2\xa7 7324(c) & (d); Federal Personnel\nManual at 733-5 (\xe2\x80\x9cIn the absence of specific statutory exemption, the basic\npolitical activity restrictions apply to any person employed in the executive\nbranch of the Federal Government. . . .\xe2\x80\x9d ). The Chairman is clearly not a fulltime\nemployee of an executive agency. Nevertheless, the Hatch Act applies to em\xc2\xad\nployees who work on an irregular or occasional basis on those days for which\nthey are paid to perform government services. See 5 C.F.R. \xc2\xa7 733.123(b)(4)\n(1981). As explained in the Federal Personnel Manual, \xe2\x80\x9c [p]ersons who are\nemployed on an irregular or occasional basis, e .g ., experts and consultants on a\nper diem basis, . . . are subject to the political activity restrictions of the law\nwhile in an active duty status only and for the entire 24 hours of any day of actual\nemployment.\xe2\x80\x9d Federal Personnel Manual at 733-5. Employees in both the\ncompetitive service and the excepted service are subject to the restrictions of the\nHatch Act. See 5 C.F.R. \xc2\xa7 733.201.\nThere are several exceptions to Hatch Act coverage. The prohibition against\ntaking an active part in political management or political campaigns does not\napply to \xe2\x80\x9c an employee paid from the appropriation for the office of the Presi\xc2\xad\ndent.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7324(d)(1). It has been suggested that this exemption would\napply to Commission members for so long as the Commission is funded from the\nUnanticipated Needs Fund in the Executive Office of the President.\nThe item \xe2\x80\x9c Office of the President,\xe2\x80\x9d as used in appropriation statutes when the\nHatch Act was enacted, has since been replaced by the item \xe2\x80\x9c The White House\nOffice\xe2\x80\x9d in appropriations for the Executive Office of the President. The Office of\nLegal Counsel has previously interpreted the \xe2\x80\x9c Office of the President\xe2\x80\x9d exemp\xc2\xad\ntion to apply only to the White House Office. See 1 Op. O.L.C. 54, 56 (1977).\n(Application of the Hatch Act to the Vice President\xe2\x80\x99s staff: \xe2\x80\x9c the exemption to the\nHatch Act in 5 U.S.C. \xc2\xa7 7324(d)(1) was intended to apply only to persons paid\n295\n\n\x0cfrom the item for the \xe2\x80\x98White House Office,\xe2\x80\x99\xe2\x80\x9d and not to those paid from other\nitems in appropriations for the Executive Office of the President.) This distinction\nreflects the congressional intent to provide an exemption for that \xe2\x80\x9c inner circle of\npersonal advisers to the President\xe2\x80\x9d whose government jobs are essentially \xe2\x80\x9c as\nadjuncts to the President in his role as a political officer.\xe2\x80\x9d Id. at 55-56.\nThe current appropriation for the Executive Office of the President has 12\nseparate items, including items for the White House Office, the Unanticipated\nNeeds Fund, the Office of Management and Budget, the Office of Policy\nDevelopment, etc. The Unanticipated Needs Fund is independent of the White\nHouse Office item. Consistent with prior OLC precedent, therefore, we conclude\nthat funding from the Unanticipated Needs Fund is not sufficient to satisfy the\nHatch Act exemption for those paid from appropriations for the Office of the\nPresident.3See also Memorandum for the Clemency Board from Antonin Scalia,\nAssistant Attorney General, Office of Legal Counsel (Sept. 24, 1974) (Unantici\xc2\xad\npated Personnel Needs Fund of the President does not fall within exemption).\nFinally, the Hatch Act also does not apply to \xe2\x80\x9c the head or the assistant head of\nan Executive department or military department.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7324(d)(2). This\nexception is inapplicable to the Chairman, however, because the Commission is\nnot an \xe2\x80\x9c Executive department.\xe2\x80\x9d See 5 U.S.C. \xc2\xa7 101. Nor is the Chairman\nexempt under \xc2\xa7 7324(d)(3), which applies to persons appointed by the President,\n\xe2\x80\x9c by and with the advice and consent of the Senate.\xe2\x80\x9d Thus, none of the arguably\nrelevant statutory exceptions applies to the Chairman of the Commission.4\nWe therefore conclude that the Chairman of the Commission is subject to the\nprovisions of the Hatch Act, as set forth in more detail at 5 C.F.R. \xc2\xa7 733.122, on\nthe days for which she is paid to perform government services. According to\ninformal advice from the legal staff of the Office of Personnel Management\n(OPM), these prohibitions go to the Chairman directly, but would not prohibit\nbillboard or other advertisements on her behalf on those days. We suggest,\nhowever, that the Chairman obtain further advice as to particular prohibitions\nfrom the Office of the Special Counsel at OPM, which has primary jurisdiction\nover Hatch Act matters.\nII. Other Statutory and Regulatory Provisions\nThere are several other statutory and regulatory provisions of which the\nChairman should be aware. Pursuant to 18 U.S.C. \xc2\xa7 602, for example, it is a\ncrime for \xe2\x80\x9c a person receiving any salary or compensation for services from\nmoney derived from the Treasury of the United States to knowingly solicit any\n3 It might be argued that when the President uses Unanticipated Needs Rinds for the White House Office itself, the\nHatch Act exemption should apply nonetheless We need not address this possibility, however, because it is clear in\nthis case that Commission members are not located in the White House Office as advisers to the President.\n4 \xe2\x80\x9c ftrso n s who are retained from time to time to perform special services on a fee basis and who take no Oath of\nOffice\xe2\x80\x9d also enjoy exemption from the Hatch Act See Federal Personnel Manual at 733-6. We have assumed that\nthe Commission members take an oath o f office, but in any event we do not believe this exception applies to a\nCommission Chairman appointed for a term . It is intended instead to apply to those receiving a fee, such as\nattorneys\n\n296\n\n\x0ccontribution within the meaning of section 301(8) of the Federal Election\nCampaign Act of 1971 from any other such officer, employee, or person.\xe2\x80\x9d 18\nU.S.C. \xc2\xa7 602(4) (Supp. V 1981).5 Additionally, no officer or employee of the\nUnited States, or a person receiving any salary or compensation from the United\nStates Treasury may make such a contribution to his or her employer or employ\xc2\xad\ning authority. 18 U.S.C. \xc2\xa7 603 (Supp. V 1981). Presumably, this latter provision\nwould prohibit Commission staff from making any contribution to the Chair\xc2\xad\nman\xe2\x80\x99s campaign efforts.6\nFinally, the Chairman should also be cognizant of the standards of conduct\nembodied in 3 C.F.R. \xc2\xa7 100.735 for the Executive Office of the President, which\nwill presumably apply for so long as Commission expenses are paid from\nExecutive Office appropriations,7 and those embodied in 5 C.F.R. \xc2\xa7 735, which\nrepresent the minimum standards of conduct applicable to federal employees. Of\nparticular concern during a campaign for state office is the following prohibition:\n(1) An employee shall avoid any action, whether or not specifi\xc2\xad\ncally prohibited . . ., which might result in, or create the\nappearance of:\n(1) Using public office for private gain. . . .\n3 C.F.R. \xc2\xa7 100.735-4(c)(l); accord 5 C.F.R. \xc2\xa7 735.201a(a). Copies of the\nstandards of conduct embodied in Titles 3 and 5 of the Code of Federal Regula\xc2\xad\ntions are attached.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n5 \xe2\x80\x9c Contribution\xe2\x80\x9d is defined in detail at 2 U.S C \xc2\xa7 431(e).\n6 For the purposes of the criminal conflict of interest laws, 18 U S C \xc2\xa7\xc2\xa7 202-209, the Chairman is a \xe2\x80\x9c special\nGovernment employee,\xe2\x80\x9d see I8 U .S .C \xc2\xa7 202, to whom some, but not all. of those provisions apply. See, e g.. 18\nU.S.C. \xc2\xa7 208 (prohibiting personal and substantial participation in a particular matter in which employee or his or\nher family or organization has a financial interest)\n7 The standards of conduct found at 3 C F R \xc2\xa7 100 735 apply not only to the White House Office, but also to\nother entities in the Executive Office of the President, including \xe2\x80\x9c any committee, board, commission, or similar\ngroup established in the Executive Office of the President 3 C F R \xc2\xa7 100 735-2(a).\n\n297\n\n\x0c'


b'Status of Taliban Forces Under Article 4 of the Third\nGeneva Convention of 1949\nThe President has reasonable factual grounds to determine that no members of the Taliban militia are\nentitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the\nTreatment of Prisoners of War.\n\nFebruary 7, 2002\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked for our Office\xe2\x80\x99s views concerning the status of members of the\nTaliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the\nTreatment of Prisoners of War (\xe2\x80\x9cGPW\xe2\x80\x9d). Assuming the accuracy of various facts\nprovided to us by the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d), we conclude that the\nPresident has reasonable factual grounds to determine that no members of the\nTaliban militia are entitled to prisoner of war (\xe2\x80\x9cPOW\xe2\x80\x9d) status under GPW. First,\nwe explain that the Taliban militia cannot meet the requirements of Article\n4(A)(2), because it fails to satisfy at least three of the four conditions of lawful\ncombat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV)\nRespecting the Laws and Customs of War on Land (\xe2\x80\x9cHague Convention\xe2\x80\x9d), which\nare expressly incorporated into Article 4(A)(2). Second, we note that neither\nArticle 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of\nlawful combat contained in the Hague Convention also govern Article 4(A)(1) and\n(3) determinations in any case. Finally, we explain why there is no need to\nconvene a tribunal under Article 5 to determine the status of the Taliban detainees.\nI.\nArticle 4(A) of GPW defines the types of persons who, once they have fallen\nunder the control of the enemy, are entitled to the legal status of POWs. The first\nthree categories are the only ones relevant to the Taliban. Under Article 4(A)(1),\nindividuals who are \xe2\x80\x9cmembers of the armed forces of a Party to the conflict,\xe2\x80\x9d are\nentitled to POW status upon capture. Article 4(A)(3) includes as POWs members\nof \xe2\x80\x9cregular armed forces who profess allegiance to a government or an authority\nnot recognized by the Detaining Power.\xe2\x80\x9d\nArticle 4(A)(2) includes as POWs members of \xe2\x80\x9cother militias\xe2\x80\x9d and \xe2\x80\x9cvolunteer\ncorps,\xe2\x80\x9d including \xe2\x80\x9corganized resistance movements\xe2\x80\x9d that belong to a Party to the\nconflict. In addition, members of militias and volunteer corps must \xe2\x80\x9cfulfill\xe2\x80\x9d four\nconditions: (a) \xe2\x80\x9cbeing commanded by a person responsible for his subordinates\xe2\x80\x9d;\n(b) \xe2\x80\x9chaving a fixed distinctive sign recognizable at a distance\xe2\x80\x9d; (c) \xe2\x80\x9ccarrying arms\nopenly\xe2\x80\x9d; and (d) \xe2\x80\x9cconducting their operations in accordance with the laws and\ncustoms of war.\xe2\x80\x9d Those four conditions reflect those required in the 1907 Hague\n\n1\n\n227-329 VOL_26_PROOF.pdf 11\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nConvention IV. See Commentary to the Geneva Convention Relative to the\nTreatment of Prisoners of War 49 (Red Cross 1952) (\xe2\x80\x9cRed Cross Commentary\xe2\x80\x9d)\n(\xe2\x80\x9c[D]uring the 1949 Diplomatic Conference . . . there was unanimous agreement\nthat the categories of persons to whom the Convention is applicable must be\ndefined, in harmony with the Hague Regulations.\xe2\x80\x9d).\nShould \xe2\x80\x9cany doubt arise as to whether persons, having committed a belligerent\nact and having fallen into the hands of the enemy, belong to any of the categories\nenumerated in Article 4,\xe2\x80\x9d GPW Article 5 requires that these individuals \xe2\x80\x9cenjoy the\nprotections of\xe2\x80\x9d the Convention until a tribunal has determined their status.\nThus, in deciding whether members of the Taliban militia qualify for POW\nstatus, the President must determine whether they fall within any of these three\ncategories. Under Article II of the Constitution, the President possesses the power\nto interpret treaties on behalf of the Nation. Memorandum for John Bellinger, III,\nSenior Associate Counsel and Legal Adviser to the National Security Council,\nfrom John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty,\nSpecial Counsel, Office of Legal Counsel, Re: Authority of the President to\nSuspend Certain Provisions of the ABM Treaty (Nov. 15, 2001). This includes, of\ncourse, the power to apply treaties to the facts of a given situation. Thus, the\nPresident may interpret GPW, in light of the known facts concerning the operation\nof Taliban forces during the Afghanistan conflict, to find that all of the Taliban\nforces do not fall within the legal definition of POW. A presidential determination\nof this nature would eliminate any legal \xe2\x80\x9cdoubt\xe2\x80\x9d as to the prisoners\xe2\x80\x99 status, as a\nmatter of domestic law, and would therefore obviate the need for Article 5\ntribunals.\nWe believe that, based on the facts provided by the Department of Defense, see\nRear Admiral L.E. Jacoby, U.S. Navy, J-2, Information Paper, Subject: Background Information on Taliban Forces (Feb. 6, 2002), the President has reasonable grounds to conclude that the Taliban, as a whole, is not legally entitled to POW\nstatus under Article 4(A)(1) through (3).\nII.\nAs the Taliban have described themselves as a militia, rather than the armed\nforces of Afghanistan, we begin with GPW\xe2\x80\x99s requirements for militia and\nvolunteer corps under Article 4(A)(2). Based on the facts presented to us by DoD,\nwe believe that the President has the factual basis on which to conclude that the\nTaliban militia, as a group, fails to meet three of the four GPW requirements, and\nhence is not legally entitled to POW status.\nFirst, there is no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions\nof his subordinates. The Taliban lacks a permanent, centralized communications\ninfrastructure. Periodically, individuals declared themselves to be \xe2\x80\x9ccommanders\xe2\x80\x9d\n\n2\n\n227-329 VOL_26_PROOF.pdf 12\n\n10/22/12 11:13 AM\n\n\x0cStatus of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949\n\nand organized groups of armed men, but these \xe2\x80\x9ccommanders\xe2\x80\x9d were more akin to\nfeudal lords than military officers. According to DoD, the Taliban militia functioned more as many different armed groups that fought for their own tribal, local,\nor personal interests.\nMoreover, when the armed groups organized, the core of the organization was\noften al Qaeda, a multinational terrorist organization, whose existence was not in\nany way accountable to or dependent upon the sovereign state of Afghanistan. We\nhave previously concluded, as a matter of law, that al Qaeda members are not\ncovered by GPW. See Memorandum for Alberto R. Gonzales, Counsel to the\nPresident and William J. Haynes II, General Counsel of the Department of\nDefense, from Jay S. Bybee, Assistant Attorney General, Re: Applications of\nTreaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002). After\nOctober 7, when the United States armed forces began aerial bombing of al Qaeda\nand Taliban targets in Afghanistan, the distinction between Taliban and al Qaeda\nbecame even more blurred as al Qaeda assumed the lead in organizing the defense.\nDoD\xe2\x80\x99s facts suggest that to the extent the Taliban militia was organized at all, it\nconsisted of a loose array of individuals who had shifting loyalties among various\nTaliban and al Qaeda figures. According to DoD, the Taliban lacked the kind of\norganization characteristic of the military. The fact that at any given time during\nthe conflict the Taliban were organized into some structured organization does not\nanswer whether the Taliban leaders were responsible for their subordinates within\nthe meaning of GPW. Armed men who can be recruited from other units, as DoD\nstates, through defections and bribery are not subject to a commander who can\ndiscipline his troops and enforce the laws of war.\nSecond, there is no indication that the Taliban militia wore any distinctive\nuniform or other insignia that served as a \xe2\x80\x9cfixed distinctive sign recognizable at a\ndistance.\xe2\x80\x9d DoD has advised us that the Taliban wore the same clothes they wore to\nperform other daily functions, and hence they would have been indistinguishable\nfrom civilians. Some have alleged that members of the Taliban would wear black\nturbans, but apparently this was done by coincidence rather than design. Indeed,\nthere is no indication that black turbans were systematically worn to serve as an\nidentifying feature of the armed group.\nSome of the Taliban militia carried a tribal flag. DoD has stated that there is no\nindication that any individual members of the Taliban wore a distinctive sign or\ninsignia that would identify them if they were not carrying or otherwise immediately identified with a tribal flag. Moreover, DoD has not indicated that tribal flags\nmarked only military, as opposed to civilian, groups.\nThird, the Taliban militia carried arms openly. This fact, however, is of little\nsignificance because many people in Afghanistan carry arms openly. Although\nTaliban forces did not generally conceal their weapons, they also never attempted\nto distinguish themselves from other individuals through the arms they carried or\nthe manner in which they carried them. Thus, the Taliban carried their arms\n\n3\n\n227-329 VOL_26_PROOF.pdf 13\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nopenly, as GPW requires military groups to do, but this did not serve to distinguish\nthe Taliban from the rest of the population. This fact reinforces the idea that the\nTaliban could neither be distinguished by their uniforms and insignia nor by the\narms they carried from Afghani civilians.\nFinally, there is no indication that the Taliban militia understood, considered\nthemselves bound by, or indeed were even aware of, the Geneva Conventions or\nany other body of law. Indeed, it is fundamental that the Taliban followed their\nown version of Islamic law and regularly engaged in practices that flouted\nfundamental international legal principles. Taliban militia groups have made little\nattempt to distinguish between combatants and non-combatants when engaging in\nhostilities. They have killed for racial or religious purposes. Furthermore, DoD\ninforms us of widespread reports of Taliban massacres of civilians, raping of\nwomen, pillaging of villages, and various other atrocities that plainly violate the\nlaws of war.\nBased on the above facts, apparently well known to all persons living in\nAfghanistan and joining the Taliban, we conclude that the President can find that\nthe Taliban militia is categorically incapable of meeting the Hague conditions\nexpressly spelled out in Article 4(A)(2) of GPW.\nIII.\nOne might argue that the Taliban is not a \xe2\x80\x9cmilitia\xe2\x80\x9d under Article 4(A)(2), but\ninstead constitutes the \xe2\x80\x9carmed forces\xe2\x80\x9d of Afghanistan. Neither Article 4(A)(1),\nwhich grants POW status to members of the armed forces of a state party, nor\nArticle 4(A)(3), which grants POW status to the armed forces of an unrecognized\npower, defines the term \xe2\x80\x9carmed forces.\xe2\x80\x9d Unlike the definition of militia in Article\n4(A)(2), these two other categories contain no conditions that these groups must\nfulfill to achieve POW status. Moreover, because GPW does not expressly\nincorporate Article 4(A)(2)\xe2\x80\x99s four conditions into either Article 4(A)(1) or (3),\nsome might question whether members of regular armed forces need to meet the\nHague conditions in order to qualify for POW status under GPW.\nWe conclude, however, that the four basic conditions that apply to militias must\nalso apply, at a minimum, to members of armed forces who would be legally\nentitled to POW status. In other words, an individual cannot be a POW, even if a\nmember of an armed force, unless forces also are: (a) \xe2\x80\x9ccommanded by a person\nresponsible for his subordinates\xe2\x80\x9d; (b) \xe2\x80\x9chav[e] a fixed distinctive sign recognizable\nat a distance\xe2\x80\x9d; (c) \xe2\x80\x9ccarry[] arms openly\xe2\x80\x9d; and (d) \xe2\x80\x9cconduct[] their operations in\naccordance with the laws and customs of war.\xe2\x80\x9d Thus, if the President has the\nfactual basis to determine that Taliban prisoners are not entitled to POW status\nunder Article 4(A)(2) as members of a militia, he has the grounds to also find that\nthey are not entitled to POW status as members of an armed force under either\nArticle 4(A)(1) or Article 4(A)(3).\n\n4\n\n227-329 VOL_26_PROOF.pdf 14\n\n10/22/12 11:13 AM\n\n\x0cStatus of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949\n\nArticle 4(A)\xe2\x80\x99s use of the phrase \xe2\x80\x9carmed force,\xe2\x80\x9d we believe, incorporated by\nreference the four conditions for militia, which originally derived from the Hague\nConvention IV. There was no need to list the four Hague conditions in Article\n4(A)(1) because it was well understood under preexisting international law that all\narmed forces were already required to meet those conditions. As would have been\nunderstood by the GPW\xe2\x80\x99s drafters, use of the term \xe2\x80\x9carmed forces\xe2\x80\x9d incorporated the\nfour criteria, repeated in the definition of militia, that were first used in the Hague\nConvention IV.\nThe view that the definition of an armed force includes the four criteria outlined\nin Hague Convention IV and repeated in GPW is amply supported by commentators. As explained in a recently-issued Department of the Army pamphlet, the four\nHague conditions are\narguably part and parcel of the definition of a regular armed force. It\nis unreasonable to believe that a member of a regular armed force\ncould conduct military operations in civilian clothing, while a member of the militia or resistance groups cannot. Should a member of\nthe regular armed forces do so, it is likely that he would lose his\nclaim to immunity and be charged as a spy or as an illegal combatant.\nMajor Geoffrey S. Corn & Major Michael L. Smidt, \xe2\x80\x9cTo Be Or Not To Be, That Is\nThe Question\xe2\x80\x9d: Contemporary Military Operations and the Status of Captured\nPersonnel, Army Law., June 1999, at 1, 14 n.127 (citation omitted). One scholar\nhas similarly concluded that \xe2\x80\x9c[u]nder the Hague Convention, a person is a member\nof the armed forces of a state only if he satisfies the [four enumerated] criteria.\xe2\x80\x9d\nGregory M. Travalio, Terrorism, International Law, and the Use of Military\nForce, 18 Wis. Int\xe2\x80\x99l L.J. 145, 184 n.140 (2000). See also Michael N. Schmitt,\nBellum Americanum: The U.S. View of Twenty-First Century War and Its Possible\nImplications For the Law of Armed Conflict, 19 Mich. J. Int\xe2\x80\x99l L. 1051, 1078\n(1998) (\xe2\x80\x9c[U]nder the Regulations annexed to Hague Convention IV, combatants\nwere those who were members of the regular armed forces (or formal militia),\nwere commanded by a person responsible for their conduct, wore a fixed distinctive emblem (or uniform), carried their weapons openly, and conducted operations\nin accordance with the law of war. The 1949 Geneva Convention on Prisoners of\nWar extended this status to members of an organized resistance movement which\notherwise complied with the Hague IV requirements.\xe2\x80\x9d).\nFurther, it would be utterly illogical to read \xe2\x80\x9carmed forces\xe2\x80\x9d in Article 4(A)(1)\nand (3) as somehow relieving members of armed forces from the same POW\nrequirements imposed on members of a militia. There is no evidence that any of\nthe GPW\xe2\x80\x99s drafters or ratifiers believed that members of the regular armed forces\nought to be governed by lower standards in their conduct of warfare than those\n\n5\n\n227-329 VOL_26_PROOF.pdf 15\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\napplicable to militia and volunteer forces. Otherwise, a sovereign could evade the\nHague requirements altogether simply by designating all combatants as members\nof the sovereign\xe2\x80\x99s regular armed forces. A sovereign, for example, could evade the\nstatus of spies as unlawful combatants simply by declaring all spies to be members\nof the regular armed forces, regardless of whether they wore uniforms or not.\nFurther, it would make little sense to construe GPW to deny some members of\nmilitias or volunteer corps POW protection for failure to satisfy the Hague\nconditions (under Article 4(A)(2)), while conferring such status upon other\nmembers simply because they have become part of the regular armed forces of a\nparty (under Article 4(A)(1)).\nThis interpretation of \xe2\x80\x9carmed force\xe2\x80\x9d in GPW finds direct support in the International Committee of the Red Cross (\xe2\x80\x9cICRC\xe2\x80\x9d), the non-governmental organization\nprimarily responsible for, and most closely associated with, the drafting and\nsuccessful completion of GPW. After the Conventions were established, the\nCommittee started work on a Commentary on all of the Geneva Conventions. In\nits discussion of Article 4(A)(3) of GPW, the ICRC construed both Article 4(A)(1)\nand (3) to require all regular armed forces to satisfy the four Hague IV (and Article\n4(A)(2)) conditions:\n[t]he expression \xe2\x80\x9cmembers of regular armed forces\xe2\x80\x9d denotes armed\nforces which differ from those referred to in sub-paragraph (1) of\nthis paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the\nconflict. These \xe2\x80\x9cregular armed forces\xe2\x80\x9d have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniform, they have an organized hierarchy\nand they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed\nforces the requirements stated in sub-paragraph (2) (a), (b), (c) and\n(d).\nRed Cross Commentary at 62-63 (emphasis added).\nNumerous scholars have similarly interpreted GPW as applying the four conditions to Article 4(A)(1) and (3) as well as to Article 4(A)(2). As Professor Howard\nS. Levie, a leading expert on the laws of war and the Geneva Conventions in\nparticular, has explained in his authoritative treatise:\nThis enumeration [of the four conditions] does not appear in subparagraph 1, dealing with the regular armed forces. This does not mean\nthat mere membership in the regular armed forces will automatically\nentitle an individual who is captured to prisoner-of-war status if his\nactivities prior to and at the time of capture have not met these\n\n6\n\n227-329 VOL_26_PROOF.pdf 16\n\n10/22/12 11:13 AM\n\n\x0cStatus of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949\n\nrequirements. The member of the regular armed forces wearing civilian clothes who is captured while in enemy territory engaged in an\nespionage or sabotage mission is entitled to no different treatment\nthan that which would be received by a civilian captured under the\nsame circumstances. Any other interpretation would be unrealistic as\nit would mean that the dangers inherent in serving as a spy or saboteur could be immunized merely by making the individual a member\nof the armed forces; and that members of the armed forces could act\nin a manner prohibited by other areas of the law of armed conflict\nand escape the penalties therefore, still being entitled to prisoner-ofwar status.\nHoward S. Levie, 59 International Law Studies: Prisoners of War in International\nArmed Conflict 36-37 (Naval War College 1977). Oxford Professor Ingrid Detter\nhas similarly concluded that, under the 1949 Geneva Conventions,\nto be a combatant, a person would have to be:\n(a) commanded by a person responsible for his subordinates;\n(b) having a fixed distinctive sign recognizable at a distance;\n(c) carrying arms openly;\n(d) conducting their operations in accordance with the laws and\ncustoms of war.\nThe same requirements as apply to irregular forces are presumably also valid for members of regular units. However, this is not\nclearly spelt out: there is no textual support for the idea that members\nof regular armed forces should wear uniform. On the other hand,\nthere is ample evidence that this is a rule of law which has been\napplied to a number of situations to ascertain the status of a person.\nAny regular soldier who commits acts pertaining to belligerence in\ncivilian clothes loses his privileges and is no longer a lawful combatant. \xe2\x80\x9cUnlawful\xe2\x80\x9d combatants may thus be either members of the regular forces or members of resistance or guerilla movements who do\nnot fulfil the conditions of lawful combatants.\nIngrid Detter, The Law of War 136-37 (Cambridge 2d ed. 2000) (footnotes omitted). See also Christopher C. Burris, The Prisoner of War Status of PLO Fedayeen,\n22 N.C. J. Int\xe2\x80\x99l L. & Com. Reg. 943, 987 n.308 (1997) (\xe2\x80\x9cI am using Article\n4A(2)\xe2\x80\x99s four criteria because the armed forces of the Palestinian Authority, over\n\n7\n\n227-329 VOL_26_PROOF.pdf 17\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n30,000 men under arms organized into roughly ten or more separate para-military\nunits, are more characteristic of militia units than the regular armed forces of a\nstate. This is because these units are organized as police/security units, not\nexclusive combat units. See Graham Usher, Palestinian Authority, Israeli Rule,\nThe Nation, Feb. 5, 1996, at 15, 16. Whether the Palestinian Authority\xe2\x80\x99s forces are\nconsidered militia or members of the armed forces, they still must fulfill Article\n4A(2)\xe2\x80\x99s four criteria.\xe2\x80\x9d). 1\nTherefore, it is clear that the term \xe2\x80\x9carmed force\xe2\x80\x9d includes the four\nconditions first identified by Hague Convention IV and expressly\napplied by GPW to militia groups. In other words, in order to be\nentitled to POW status, a member of an armed force must (a) be\n\xe2\x80\x9ccommanded by a person responsible for his subordinates\xe2\x80\x9d; (b)\n\xe2\x80\x9chav[e] a fixed distinctive sign recognizable at a distance\xe2\x80\x9d; (c) \xe2\x80\x9ccarry[] arms openly\xe2\x80\x9d; and (d) \xe2\x80\x9cconduct[] their operations in accordance\nwith the laws and customs of war.\xe2\x80\x9d We believe that the President,\nbased on the facts supplied by DoD, has ample grounds upon which\nto find that members of the Taliban have failed to meet three of these\nfour criteria, regardless of whether they are characterized as members of a \xe2\x80\x9cmilitia\xe2\x80\x9d or of an \xe2\x80\x9carmed force.\xe2\x80\x9d The President, therefore,\n\n1\nThe only federal court we are aware of that has addressed this issue denied Article 4(A)(3) status\nto defendants because they could not satisfy the Hague conditions. In United States v. Buck, 690\nF. Supp. 1291 (S.D.N.Y. 1988), the defendants claimed that they were entitled to POW status as\nmilitary officers of the Republic of New Afrika, \xe2\x80\x9ca sovereign nation engaged in a war of liberation\nagainst the colonial forces of the United States government.\xe2\x80\x9d Id. at 1293. That nation, it was contended,\nincluded \xe2\x80\x9call people of African ancestry living in the United States.\xe2\x80\x9d Id. at 1296. The court refused to\nextend POW status to the defendants. After determining that GPW did not apply at all due to the\nabsence of an armed conflict as understood under Article 2, the court alternatively reasoned that the\ndefendants could not satisfy any of the requirements of Article 4. See id. at 1298 (stating that, even if\nGPW applied, \xe2\x80\x9cit is entirely clear that these defendants would not fall within Article 4, upon which they\ninitially relied\xe2\x80\x9d). The court first concluded that the defendants failed to meet the four Hague conditions\nexpressly spelled out in Article 4(A)(2). The court then rejected POW status under Article 4(A)(3)\n\xe2\x80\x9c[f]or comparable reasons\xe2\x80\x9d:\n\nArticle 4(A)(2) requires that to qualify as prisoners of war, members of \xe2\x80\x9corganized\nresistance movements\xe2\x80\x9d must fulfill the conditions of command by a person responsible for\nhis subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms\nopenly; and conducting their operations in accordance with the laws and customs of war.\nThe defendants at bar and their associates cannot pretend to have fulfilled those conditions.\nFor comparable reasons, Article 4(3)\xe2\x80\x99s reference to members of \xe2\x80\x9cregular armed forces who\nprofess allegiance to a government or an authority not recognized by the Detaining Power,\xe2\x80\x9d\nalso relied upon by defendants, does not apply to the circumstances of this case.\nId. (emphasis added). The court reached this conclusion even though the Hague conditions are not\nexplicitly spelled out in Article 4(A)(3). Nothing in the court\xe2\x80\x99s discussion suggests that it would have\nconstrued Article 4(A)(1) any differently.\n\n8\n\n227-329 VOL_26_PROOF.pdf 18\n\n10/22/12 11:13 AM\n\n\x0cStatus of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949\n\nmay determine that the Taliban, as a group, are not entitled to POW\nstatus under GPW.\nIV.\nUnder Article 5 of GPW, \xe2\x80\x9c[s]hould any doubt arise as to whether persons . . .\nbelong to any of the categories enumerated in Article 4, such persons shall enjoy\nthe protection of the present Convention until such time as their status has been\ndetermined by a competent tribunal.\xe2\x80\x9d As we understand it, DoD in the past has\npresumed prisoners to be entitled to POW status until a tribunal determines\notherwise. The presumption and tribunal requirement are triggered, however, only\nif there is \xe2\x80\x9cany doubt\xe2\x80\x9d as to a prisoner\xe2\x80\x99s Article 4 status.\nUnder Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. * We conclude, in light of the facts submitted\nto us by the Department of Defense and as discussed in parts II and III of this\nmemorandum, that the President could reasonably interpret GPW in such a manner\nthat none of the Taliban forces falls within the legal definition of POWs as defined\nby Article 4. A presidential determination of this nature would eliminate any legal\n\xe2\x80\x9cdoubt\xe2\x80\x9d as to the prisoners\xe2\x80\x99 status, as a matter of domestic law, and would\ntherefore obviate the need for Article 5 tribunals.\nThis approach is also consistent with the terms of Article 5. As the International\nCommittee of the Red Cross has explained, the \xe2\x80\x9ccompetent tribunal\xe2\x80\x9d requirement\nof Article 5 applies \xe2\x80\x9cto cases of doubt as to whether persons having committed a\nbelligerent act and having fallen into the hands of the enemy belong to any of the\ncategories enumerated in Article 4.\xe2\x80\x9d Red Cross Commentary at 77. Tribunals are\nthus designed to determine whether a particular set of facts falls within one of the\nArticle 4 categories; they are not intended to be used to resolve the proper\ninterpretation of those categories. The President, in other words, may use his\nconstitutional power to interpret treaties and apply them to the facts, to make the\ndetermination that the Taliban are unlawful combatants. This would remove any\n\xe2\x80\x9cdoubt\xe2\x80\x9d concerning whether members of the Taliban are entitled to POW status.\nWe therefore conclude that there is no need to establish tribunals to determine\nPOW status under Article 5.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n*\nEditor\xe2\x80\x99s Note: We have deleted a footnote containing a citation to an earlier Office of Legal\nCounsel memorandum that was unnecessary to support the proposition in the text, because the cited\nmemorandum no longer reflects the views of this Office.\n\n9\n\n227-329 VOL_26_PROOF.pdf 19\n\n10/22/12 11:13 AM\n\n\x0c'