b'Reimbursement for Defense Department Assistance\nto Civilian Law Enforcement Officials\nT he D epartm ent o f D efense A uthorization Act of 1982 authorizes the Secretary of Defense to seek\nreim bursem ent from civilian law enforcem ent agencies to whom the Departm ent provides various\nform s o f assistance, and the Secretary of D efense m ay condition his D epartm ent\xe2\x80\x99s provision of\nassistance on such reim bursem ent. However, the Act also gives the Secretary discretion to waive a\nrequirem ent o f reim bursem ent for assistance provided under its authority.\nT he E conom y A ct, 31 U .S .C . \xc2\xa7 686 (1976), provides general authority for one agency to request\nassistance from another agency for an activity o r operation that the requesting agency has authority\nto p erfo rm , and a perform ing agency should seek reim bursem ent for the actual cost o f services\nprovided under that A ct. However, w here there is specific authonty for one agency to assist\nanother, the provisions o f the Econom y Act do not apply.\n\nJuly 24, 1982\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis responds to your request for an opinion regarding reimbursement for\nassistance provided by the Department of Defense to civilian law enforcement\nofficials under the Department o f Defense Authorization Act, 1982.1 This Act\nprovided the Defense Department with express authorization to provide certain\nassistance to civilian law enforcement officials. With such express authorization,\nthe provision of such assistance cannot be said to violate the Posse Comitatus\nAct, a Reconstruction-era law generally limiting the role of the Nation\xe2\x80\x99s military\nforces in executing the law.2The narrow issue upon which you have requested our\nopinion is whether the Defense Department is required to seek reimbursement\nfrom civilian law enforcement agencies for authorized assistance it provides\npursuant to this Act, or whether, under this Act, that Department is authorized to\ncondition assistance on reimbursement although it need not do so.\nIt is our opinion, after reviewing the Act and its legislative history as well as a\nnumber of memoranda prepared by the Defense Department,3 that the Act\n\n1 The Department of Defense Authorization Act, 1982, is Pub L No 97-86, 95 Stat. 1099 (1981).\n2 The Posse Comitatus Act is codified at 18 U .S.C \xc2\xa7 1385. That Act\xe2\x80\x99s general restriction on the Defense\nDepartment\'s authonty to execute the laws is made inapplicable under \xc2\xa7 1385 itself if use of the Armed Forces is\n\xe2\x80\x9c expressly authorized by .\nAct of Congress. . .\n3 We have received five main documents from the Defense Department stating its view. (1) a Memorandum for\nthe Deputy Secretary of Defense from the General Counsel, Defense Department, dated March 11, 1982, to which\nis attached a background discussion of the Act\xe2\x80\x99s legislative history; (2) a Memorandum for the Deputy Secretary of\nDefense from the General Counsel, Defense Department, dated March 18, 1982; (3) Enclosure 5 of Defense\nDepartment Directive No 5525.5, dated March 22, 1982, entitled \xe2\x80\x9c DoD Cooperation with Civilian Law EnforceC o ntinued\n\n464\n\n\x0cauthorizes but does not require that Department to seek reimbursement from\ncivilian law enforcement agencies. Our reasons for reaching this conclusion are\nset forth in section II below. The Defense Department\xe2\x80\x99s position on the matter at\nissue is summarized in section I.\n\nI. The Defense Department\xe2\x80\x99s Interpretation\nTo understand the matter at hand, it is first necessary to set forth the major\nprovisions of the Department of Defense Authorization Act, 1982. They are the\nfollowing new \xc2\xa7\xc2\xa7 371 through 377 of Title 10, United States Code (Supp. V),\ncontained in \xc2\xa7 905, Title IX, of the Act:\n\xc2\xa7 371. Use o f information collected during military operations\nThe Secretary c f Defense may, in accordance with other ap\xc2\xad\nplicable law, provide to Federal, State, or local civilian law\nenforcement officials any information collected during the normal\ncourse of military operations that may be relevant to a violation of\n\nany Federal or State law within the jurisdiction of such officials.\n\xc2\xa7 372. Use c f military equipment and facilities\nThe Secretary of Defense may, in accordance with other ap\xc2\xad\nplicable law, make available any equipment, base facility, or\nresearch facility of the Army, Navy, Air Force, or Marine Corps\nto any Federal, State, or local civilian law enforcement official for\n\nlaw enforcement purposes.\n\xc2\xa7 373. Training and advising civilian law enforcement officials\nThe Secretary c f Defense may assign members of the Army,\nNavy, Air Force, and Marine Corps to train Federal, State, and\nlocal civilian law enforcement officials in the operation and\nmaintenance c f equipment made available under section 372 of\n\nthis title and to provide expert advice relevant to the purposes of\nthis chapter.\n\xc2\xa7 374. Assistance by Department c f Defense personnel\n( a ) . . . the Secretary c f Defense, upon request from the head of\nan agency with jurisdiction to enforce\xe2\x80\x94\n(1)\nthe Controlled Substances Act (21 U.S.C. 801 et seq.) or\nthe Controlled Substances Import and Export Act (21 U.S.C. 951\net seq.);\nment Officials", (4) a letter from the Deputy Secretary of Defense to the Attorney General, dated March 26, 1982;\nand (5) a letter from the General Counsel, Defense Department, to Theodore B Olson, Assistant Attorney General,\nOffice of Legal Counsel, dated June 11, 1982.\nIn additton, we have received a copy of testtmony by the Defense Department\xe2\x80\x99s General Counsel before the\nSubcommittee on C nm e o f the House Committee on the Judiciary, dated June 3,1981, which relates generally to the\nissue before us Rirther, we have received a copy of a memorandum prepared by this Department\xe2\x80\x99s Office of Legal\nPolicy on the issue at hand, dated April 30, 1982.\n\n465\n\n\x0c(2) any of sections 274 through 278 of the Immigration and\nNationality Act (8 U.S.C. 1324\xe2\x80\x941328); or\n(3) a law relating to the arrival or departure of merchandise (as\ndefi ned in section 401 o f the Tariff A cto fl9 3 0 (1 9 U .S .C . 1401))\ninto or out of the customs territory of the United States (as defined\nin general headnote 2 o f the Tariff Schedules of the United States\n(19 U .S.C . 1202)) or any other territory or possession of the\nUnited States, may assign personnel o f the Department of Defense\nto operate and maintain or assist in operating and maintaining\nequipment made available under section 372 of this title with\n\nrespect to any criminal violation of any such provision of law.\n\xc2\xa7 375. Restriction on direct participation by military personnel.\nThe Secretary cf Defense shall issue such regulations as may be\nnecessary to insure that the provision cfany assistance (including\nthe provision of any equipment or facility or the assignment of any\npersonnel) to any civilian law enforcement official under this\nchapter does not include or perm it direct participation by a\nm em ber o f the Army, Navy, A ir Force, or Marine Corps in an\n\ninterdiction of a vessel o r aircraft, a search and seizure, arrest, or\nother similar activity unless participation in such activity by such\nm em ber is otherwise authorized by law.\n\n\xc2\xa7 376. Assistance not to affect adversely military preparedness\nAssistance (including the provision of any equipment or facili\xc2\xad\nty or the assignment of any personnel) may not be provided to any\ncivilian law enforcement official under this chapter if the provi\xc2\xad\nsion of such assistance will adversely affect the military prepared\xc2\xad\nness of the United States. . . .\n\xc2\xa7 377. Reimbursement\nThe Secretary of Defense shall issue regulations providing that\nreimbursement may be a condition c f assistance to a civilian law\nenforcement official under this chapter.\n\n(Emphasis added.)\nThe foregoing provisions authorize the Defense Department to provide various\nforms of assistance to civilian law enforcement officials, although certain general\nlimitations must be observed. First, Congress took care to prevent \xe2\x80\x9c direct\xe2\x80\x9d\ninvolvement of military forces in civilian law enforcement activities, see \xc2\xa7 375.\nSecond, Congress sought to assure that assistance under the Act would not\nadversely affect the Nation\xe2\x80\x99s military preparedness, see \xc2\xa7 376. In \xc2\xa7 377, Con\xc2\xad\ngress specifically provided that the Secretary of Defense shall issue regulations\n466\n\n\x0c\xe2\x80\x9c providing that reimbursement may be a condition of assistance to a civilian law\nenforcement official under this chapter.\xe2\x80\x9d (Emphasis added.)\nThe Defense Department\xe2\x80\x99s interpretation of its authority to waive reimburse\xc2\xad\nment may be summarized in terms of two major propositions. First, the Depart\xc2\xad\nment contends that when its authority for assisting civilian law enforcement\nofficials was based on the Economy Act, 31 U.S.C. \xc2\xa7 686 (1976), as it was prior\nto the passage of the Department of Defense Authorization Act, 1982, the\nSecretary of Defense was legally required to request reimbursement in most\nsituations. This contention rests on an analysis of the Economy Act and decision\xc2\xad\nal law, particularly that of the Comptroller General, under it. Second, the\nDepartment argues that nothing in the Department of Defense Authorization Act,\n1982, changed that result. In short, the Defense Department urges that the\nprinciples of the Economy Act as applied prior to the recent Act\xe2\x80\x99s passage still\napply.\nThe Defense Department\xe2\x80\x99s position is expressed in the letter of the Deputy\nSecretary of Defense to you dated March 27, 1982, where it is stated that \xe2\x80\x9c [t]he\nauthority of the Secretary of Defense to make reimbursement a condition of\nassistance under 10 U.S.C. \xc2\xa7 377 permits waiver of reimbursement only to the\nextent that reimbursement is not required by other applicable laws, such as the\nEconomy Act.\xe2\x80\x9d The letter proceeds to urge that Congress\xe2\x80\x99 intent in enacting the\nrecent Act was \xe2\x80\x9c to leave in place existing laws governing the provision of\nassistance to other agencies,\xe2\x80\x9d and \xe2\x80\x9c did not intend . . . to provide a new basis for\nDoD funding of civilian law enforcement activities.\xe2\x80\x9d (Page 1.)\nAs a result of the Defense Department\xe2\x80\x99s analysis of the reimbursement issue, it\nconcludes that the recent Act does not accord the Department any new discretion\nor any general authority to waive reimbursement for assistance provided to\ncivilian law enforcement officials.\n\nII. Analysis of the Defense Department\xe2\x80\x99s Interpretation\nIn responding in this section to the major points underlying the Defense\nDepartment\xe2\x80\x99s interpretation, we will set forth our own analysis of the reimburse\xc2\xad\nment issue.\n(1) First, we find no reason to agree or disagree with the Defense Department\xe2\x80\x99s\nargument about the requirement, prior to the passage of the recent Act, to seek\nreimbursement from civilian law enforcement agencies for assistance provided\nto them. It is correct that the Economy Act, 31 U.S.C. \xc2\xa7 686, is a source of\nauthority for one agency to request assistance from another agency for an activity\nor operation that the requesting agency has authority to \xe2\x80\xa2perform.4 It also is\n4 As the Comptroller General has stated, the purpose o f 31 U .S.C . \xc2\xa7 686, which is \xc2\xa7 601 of the Economy Act of\n1932, as amended, is to authorize inter-agency procurement of work, materials, or equipment 57 Comp. Gen. 674,\n676-77 (1978). Congress intended that economies could be achieved by providing such authority to \xe2\x80\x9c enable all\nbureaus and activities of the Government to be utilized to their fullest \xe2\x80\x9d Id. at 680, quoting H.R. Rep No 2 2 0 1 ,71st\nCong., 2d Sess 2 -3 (1931) (a report on a predecessor bill) The Economy Act, 31 U.S C. \xc2\xa7 686, does not give the\nperforming agency any new authority to perform any function; it only gives the requesting agency authonty to\nrequest the performing agency to assist the requesting agency if the requesting agency otherwise has authonty to\nperform the function.\n\n467\n\n\x0cgenerally correct that, under the Comptroller General\xe2\x80\x99s opinions interpreting the\nEconomy Act, a performing agency should seek reimbursement for the actual\ncost of services provided to a requesting agency under the Economy Act.5\nHowever, in our view, these propositions and the argument employing them as\nadvanced by the Defense Department are essentially beside the point in the\npresent context.\nThe Economy Act, 31 U.S.C. \xc2\xa7 686, is needed only when there is no specific\nauthority for one agency to assist another agency, or no authority for the\nperforming agency to take the action in the course of fulfilling its own statutory\nduties. In such circumstances, under the terms of the Economy Act, an agency\nmay \xe2\x80\x9c place orders with any other such department, establishment, bureau, or\noffice for materials, supplies, equipment, work, or services, of any kind that such\nrequisitioned Federal agency may be in a position to supply or equipped to\nrender. . . .\xe2\x80\x9d However, where there is specific authority for one agency to assist\nanother, there is simply no need to rely on the Economy Act in the first place.\nThis point is clear not only from the Economy Act\xe2\x80\x99s language, but also from its\nlegislative history, which makes plain that the chief purpose of enacting the\nprovision was to establish general authority for one agency to assist another\nagency when specific authority did not satisfy the requesting agency\xe2\x80\x99s needs for\nassistance. See, e .g ., 57 Comp. Gen. 675, 678-80 (1978) (reviewing the legis\xc2\xad\nlative history of the Economy Act, and noting that prior to its passage, some\nagencies had specific authority to perform certain classes of work for other\nagencies, but there was no general authority under which agencies could assist\nother agencies); H.R. Rep. No. 1126, 72d Cong., 1st Sess. 15\xe2\x80\x9416 (1932).\nAccordingly, we cannot accept the suggestions that the Economy Act applies\nin the present context and that it requires reimbursement for assistance provided\nby the Defense Department. O ur chief difficulty with these suggestions is, in\nshort, that the Economy Act no longer applies since there is no longer any need to\nuse its general authority as the basis on which the Defense Department provides\nassistance to civilian law enforcement officials. In its plain terms, the Depart\xc2\xad\nment of Defense Authorization Act, 1982, authorizes the Defense Department to\nprovide certain forms of assistance to civilian law enforcement officials. In such a\nsituation, the law concerning reimbursement under the Economy Act is\ninapplicable.6\n(2)\nSecond, the Defense Department\xe2\x80\x99s suggestion that nothing in the recent\nAct countermands its conclusion that reimbursement is required under the\nEconomy Act cannot be reconciled with the plain language of \xc2\xa7 377, the\nreimbursement provision. This provision states specifically that the Secretary of\nDefense \xe2\x80\x9c shall issue regulations providing that reimbursement may be a con\xc2\xad\n5 See, e.g .. 57 Comp Gen. 674 (1978), 56 Comp. Gen. 275 (1977); 46 Comp Gen. 73, 76 (1966); 18 Comp.\nGen. 262, 266 (1938).\n6 We would emphasize that this conclusion follows directly from the existence in the Department of Defense\nAuthorization Act, 1982, of specific authority for the Defense Department to assist civilian law enforcement\nagencies. The existence of this specific authority makes it unnecessary to rely on the Economy Act, 31 U .S.C\n\xc2\xa7 686, as the authority for such assistance. Accordingly, even if \xc2\xa7 377 of the recent Act had not been enacted, the\nEconomy Act would be inapplicable in (he present context.\n\n468\n\n\x0cdition of assistance to a civilian law enforcement official under this chapter.\xe2\x80\x9d\n(Emphasis added.) It is difficult to imagine how Congress could have indicated\nmore clearly that the Secretary may\xe2\x80\x94 but need not\xe2\x80\x94 condition assistance on\nreimbursement.7\nThis conclusion is supported by the ordinary meaning of \xe2\x80\x9c may,\xe2\x80\x9d which\nnormally indicates that one has permission or liberty to do something, not that\none is required or compelled to do something. See Webster\xe2\x80\x99s Third New Interna\xc2\xad\ntional Dictionary 1396 (1976). A statute\xe2\x80\x99s terms are ordinarily to be interpreted in\nlight of the usual or customary meaning of the words themselves. See, e .g .,\nSoutheastern Community College v. Davis, 442 U.S. 397, 405 (1979). More\xc2\xad\nover, it is significant that in \xc2\xa7 377, Congress spoke of reimbursement in terms of\nwhat the Secretary \xe2\x80\x9c may\xe2\x80\x9d do, whereas it spoke of the issuance of regulations\ndealing with reimbursement in terms of what the Secretary \xe2\x80\x9c shall\xe2\x80\x9d do. This\ncontrast in the use of terms suggests strongly that when Congress wanted to\nimpose a mandatory requirement in this statute\xe2\x80\x94 indeed, this very provision\xe2\x80\x94 it\nknew how to do so.\nIf the plain language of \xc2\xa7 377 were an insufficient basis on which to rest the\nconclusion that the Secretary has discretion to decide whether to condition\nassistance under the Act on reimbursement, then we believe that consideration of\nthe provision\xe2\x80\x99s legislative history confirms the foregoing reading of its plain\nmeaning.\nThe predecessor provision in the bill introduced in the Senate, S. 815, 97th\nCong., 1st Sess. (1981), also was permissive on its face with respect to the issue\nof reimbursement. It provided:\nThe Secretary of Defense shall . . . issue such regulations as may\nbe necessary to insure that reimbursement for the provision of\nassistance, including the provision of any equipment or facility,\nunder this chapter to any Federal, State, or local civilian law\nenforcement official may be obtained whenever the Secretary of\nDefense determines such reimbursement to be appropriate.\n\n(Emphasis added.)8 The report of the Senate Committee on Armed Services\nstressed that the bill\xe2\x80\x99s language was intended to authorize the Secretary to provide\ncertain indirect assistance to civilian law enforcement officials without requiring\nthe Defense Department to provide such assistance. The report also noted that the\ndecision whether to request reimbursement for such assistance was within the\nSecretary\xe2\x80\x99s discretion to so act as \xe2\x80\x9c appropriate.\xe2\x80\x9d As the report stated:\nThe Secretary of Defense would be authorized, not required, to\nprovide this aid. And the Department c f Defense could obtain\n7 We note that because \xc2\xa7 377 on its face deals only with "assistance\xe2\x80\x9d provided by Defense \xe2\x80\x9c under this chapter\n[\xc2\xa7\xc2\xa7 371-77],\xe2\x80\x99*any assistance provided by the Department of Defense pursuant lo any other existing authority that\npredated, and is not overlapped by, this Act is nol covered by \xc2\xa7 377. In other words, if assistance is not authonzed by\nthe recent Act, then its provision continues to be governed by the Economy Act\n8 The reimbursement provision in the Senate bill would have been a new \xc2\xa7 374(b) of Title 10, United States Code;\nit appears at pages 64 to 65 of the pnnted Senate bill\n\n469\n\n\x0creimbursement for any assistance provided when the Secretary\ndeterm ined such reimbursement was appropriate.\n\nS. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added).\nThe House bill, H.R. 3519, 97th Cong., 1st Sess. (1981), contained the same\nreimbursement provision as the Senate bill.9 The report of the House Committee\non Armed Services noted specifically that the provision was intended to authorize\nthe Secretary to issue regulations \xe2\x80\x9c to ensure reimbursement for provisions of\nassistance, equipment and facilities whenever he determines reimbursement is\nappropriate. . . .\xe2\x80\x9d (Emphasis added.) H.R. Rep. No. 71, 97th Cong., 1st Sess.\n(pt. 1) 164 (1981).\nThe report of the House Committee on the Judiciary, to which the bill was\nsequentially referred, elaborated upon the permissive nature of the reimburse\xc2\xad\nment authorization:\nThe final subsection of proposed section 374 authorizes the Secre\xc2\xad\ntary of Defense to issue regulations which may condition the\nrendering c f any assistance under this Chapter upon a reimburse\xc2\xad\nment to the military. According to information received from the\n\nCoast Guard, United States Customs Service, and the Depart\xc2\xad\nment of Justice (the Federal agencies most likely to request\nassistance), this reimbursement provision is acceptable and\nshould not require any immediate increase in the budgets of those\nagencies. The availability of this reimbursement option is not\nmeant to serve as an excuse fo r the Secretary c f Defense to decline\nto cooperate in the provision c f assistance. Rather, the reimburse\xc2\xad\n\nment option should serve instead as an informal check of the\nmagnitude and frequency of the requests made by civilian law\nenforcement officials. The availability cf military assistance is\nnot intended by the Committee to be an indirect method c f increas\xc2\xad\ning the budget authority o f the civilian law enforcement agency.\n\nH.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).\nIn the foregoing discussion, the House Judiciary Committee clearly sought to\ntread a careful line between seeming to impose an undue burden on federal\ncivilian law enforcement agencies, on the one hand, and to impose an excessive\nburden on the Department of Defense by indirectly \xe2\x80\x9c increasing the budget\nauthority of the civilian law enforcement agency\xe2\x80\x9d involved, on the other hand.\nAt the same time, the foregoing passage, by referring specifically to \xe2\x80\x9c the\nreimbursement option\xe2\x80\x9d created by the bill (emphasis added), makes plain that\nreimbursement under the House bill would not be required by the bill itself, but\nrather was to be an option available to the Defense Department. The Committee\nacknowledged that the need to pay for assistance authorized by the bill was likely\nto operate as an informal check on the number and size of requests for such\n9 The reimbursement provision appears at page 44 of the printed House bill.\n\n470\n\n\x0cassistance. As the Committee put it, \xe2\x80\x9c the reimbursement option should serve\n. . . as an informal check on the magnitude and frequency of the requests made\nby civilian law enforcement officials.\xe2\x80\x9d Nevertheless, such a \xe2\x80\x9c check\xe2\x80\x9d was\nevidently intended to operate as the result of a discretionary decision by the\nSecretary of Defense to request reimbursement in a particular case, not as the\nresult of any requirement of reimbursement under the bill itself.\nThe discussion of the reimbursement provision contained in the House bill by\nthe third House Committee to which the bill was referred, the Committee on\nGovernment Operations, confirms that reimbursement was to be an option, not a\nrequirement:\nSection 908 of H.R. 3519 as reported by the committee of\noriginal jurisdiction contains the following language:\nThe Secretary of Defense may assign members of the armed\nforces to train Federal, State, and local law enforcement officials\nin the operation of military equipm ent. . . and to provide expert\nadvice relevant to the purposes of this chapter, if the provision of\nsuch training or advice will not adversely affect the military\npreparedness of the United States.\n- An additional provision c f the section specifies that the Secre\xc2\xad\ntary c f Defense shall issue such regulations as may be necessary\nto insure that reimbursement fo r the provision c f such assistance\nis obtained when the Secretary deems such reimbursement to be\nappropriate.\n\nH.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981) (emphasis added).10\nDuring floor debate on the House bill, it was acknowledged once again that\nreimbursement for assistance provided to civilian law enforcement officials by\nthe Defense Department would be an option of the Secretary of Defense.\nCongressman Bennett, for instance, stated that:\nSection 374 requires the Secretary c f Defense to issue regula\xc2\xad\ntions: First, to insure that the provision of assistance, equipment,\n\nor facilities does not impair military training or operations neces\xc2\xad\nsary to the military preparedness of the United States; and second,\nto insure reimbursement fo r the provision c f assistance obtained\nfrom the Department c f Defense when the Secretary determines it\nis appropriate. The regulations provided by this section will\n\ninsure that the cooperation with the civilian law enforcement\nofficials does not interfere with carrying out the primary mission\nof our Armed Forces, that is, military preparedness. The regula\xc2\xad\ntion will also insure that the law enforcement cooperation is not\ndone at the expense c f defense activities.\n"\xe2\x96\xa0 In another passage of the report of the House Committee on Government Operations, it is reaffirmed that the\nHouse bill would extend authority to the Secretary of Defense to provide training services and advice \xe2\x80\x9c without\nreimbursement, if he determined that to be appropriate.\xe2\x80\x9d H R Rep. No 7 1,97th Cong., 1st Sess. (pt. 3)37(1981).\n\n471\n\n\x0cThe results of the Armed Forces work should not be used at the\ncost of defense budgets to support the activities of other agencies\nof Government regardless of how laudable those activities might\nbe. I understand the Department c f Defense has always required\nreimbursement in the p a st, and it will continue to do so under\nthese provisions.\n\n127 Cong. Rec. H 4056-57 (d^ily ed. July 8, 1981) (emphasis added). These\nremarks reflect sensitivity to the potential problems that could arise if the Defense\nD epartm ent were not allowed to seek reimbursement for the assistance it\nprovides to civilian law enforcement agencies. The reimbursement option evi\xc2\xad\ndently was designed to \xe2\x80\x9c insure that the law enforcement cooperation [as autho\xc2\xad\nrized by the bill] is not done at the expense of defense activities.\xe2\x80\x9d In this context,\nCongressman Bennett noted that \xe2\x80\x9c in the past\xe2\x80\x9d the Defense Department had\nrequired reimbursement, and that it intended to do so in the future. At the same\ntime, these remarks do not purport to, and they do not, state any legal require\xc2\xad\nment that reimbursement be sought under the bill. To the contrary, the remarks\nare directly tailored to protect the Defense Department\xe2\x80\x99s authority to obtain\nreimbursement when the Secretary deems it \xe2\x80\x9c appropriate.\xe2\x80\x9d\nAnother pertinent discussion o f reimbursement during the House debate is the\nfollowing by Congressman Hughes:\nMr. C hairm an,. . . under the provisions of the bill any loaning\nof equipment or any loaning of personnel is reimbursable. It does\nnot come out c f the Department c f Defense budget. We are not\nasking the Defense Department to use their amounts set aside for\nthe m ilitary mission for law enforcement purposes.\n\nAll we are doing is, we are trying, first of all, to codify the\nexisting practices relative to the sharing of intelligence, the shar\xc2\xad\ning of base facilities, the sharing of research, and we have taken it\none step further; they need equipment from time to time, but it is\nan empty gesture when you offer equipment and do not offer the\nmanpower to operate the very sophisticated equipment. . . .\nId. at H 4066-67 (emphasis added). Although the foregoing remarks indicate\n\nconcern about using Defense Department funds appropriated for military mis\xc2\xad\nsions to provide assistance to civilian law enforcement agencies, the comments\nare limited in their reference: \xe2\x80\x9cWe are not asking the Defense Department to use\ntheir amounts set aside for the military mission for law enforcement purposes.\xe2\x80\x9d\n(Emphasis added.) We believe that this statement means only that Congress did\nnot intend to require the Defense Department to pay for the assistance it provides\nas authorized by the bill. Indeed, the bill specifically empowers the Defense\nDepartment to seek reimbursement. Congressman Hughes\xe2\x80\x99 comments, like\nthose discussed above, do not purport to establish any legal requirement that\nreimbursement must be sought by the Defense Department, even though they\nindicate an expectation that reimbursement might frequently be sought. This\n472\n\n\x0ccrucial point is further confirmed by the statement of Congressman Sawyer that\n\xe2\x80\x9c the law enforcement agency requesting the military equipment is chargeable\nfor the use of that equipment.\xe2\x80\x9d Id. at 4067 (emphasis added). To say that a civilian\nlaw enforcement agency is \xe2\x80\x9c chargeable\xe2\x80\x9d under the bill is not to say that such an\nagency must be charged for assistance authorized by the bill.\nIf there were any substantial doubt remaining after a survey of the foregoing\ncomments in the legislative record about the conclusion that the Defense Depart\xc2\xad\nment has discretion to decide whether to condition assistance on reimbursement,\nsuch doubt is dispelled by the report of the conference committee, which stated\nthe following about the reimbursement provision:\nThis section authorizes the Secretary of Defense to issue regula\xc2\xad\ntions providing that reimbursement may be a condition c f the\nassistance to civilian law enforcement officials under this chapter.\n\nThis provision was contained, in slightly different form, in both\nbills. The regulation should reflect sufficient flexibility to take into\nconsideration the budgetary resources available to civilian law\nenforcement agencies.\n\nH.R. Rep. No. 311, 97th Cong., 1st Sess. 122 (1981) (emphasis added). If the\nconference committee had sought to require the Secretary of Defense to con\xc2\xad\ndition assistance on reimbursement, it would hardly have been consistent for the\ncommittee to have noted that the reimbursement provision provides \xe2\x80\x9c sufficient\nflexibility to take into consideration the budgetary resources available to civilian\nlaw enforcement agencies.\xe2\x80\x9d Such \xe2\x80\x9c flexibility\xe2\x80\x9d in fact is reflected in the language\nultimately enacted, which provides that the Secretary of Defense \xe2\x80\x9c may\xe2\x80\x9d con\xc2\xad\ndition assistance under the Act on reimbursement.\nIn view of the plain language of \xc2\xa7 377 and the fact that the relevant committee\nreports and floor debates confirm that Congress sought to provide flexibility to\nthe Secretary to determine whether to require reimbursement, we conclude that\nthe Secretary of Defense has discretion under the Act to decide whether to\nrequest reimbursement for assistance rendered pursuant to the Act. Since the\nAct\xe2\x80\x99s fundamental purpose was to provide the express authorization for the\nDefense Department to assist civilian law enforcement officials notwithstanding\nthe general restriction under the Posse Comitatus Act, see note 2, supra, there is\nno longer any need for the Defense Department to rely on the Economy Act in\nproviding the assistance authorized by the Act. In short, since the reimbursement\nprovision of the Department of Defense Authorization Act, 1982, governs, and\nsince that provision is permissive, we conclude that the Secretary of Defense is\nauthorized but not required to seek reimbursement for assistance rendered under\nthe Act.\n(3) In opposition to the foregoing analysis of \xc2\xa7 377 and its legislative history,\nthe Defense Department maintains that Congress intended to retain under this\nAct the strictures of the Economy Act, 31 U.S.C. \xc2\xa7 686. This position rests on\nthree main arguments.\n473\n\n\x0cFirst, the Defense Department contends that the language of \xc2\xa7 372, which\nlimits the provision of assistance under that section \xe2\x80\x9c in accordance with other\napplicable law,\xe2\x80\x9d effectively incorporates, albeit indirectly, the Economy Act into\nthis Act. Second, the Defense Department seeks support in a variety of passages\nin the legislative history indicating that Congress expected that the Defense\nDepartment would not have to pay for all of the assistance rendered under the\nAct. Third, the Defense Department notes that it is charged with implementing\nthe Act by means of regulations. For this reason, the Department suggests, even\nif implicitly, that its interpretation should be given particular weight. We will\ndiscuss each argument in turn.\nA. The Language c f \xc2\xa7 372\n\nThe Defense Department\xe2\x80\x99s primary textual argument is that the phrase, \xe2\x80\x9c in\naccordance with other applicable law,\xe2\x80\x9d in \xc2\xa7 372 incorporates in this Act the law\nrelating to reimbursement under the Economy Act, 31 U.S.C. \xc2\xa7 686. Section\n372 states:\nThe Secretary of Defense may, in accordance with other applica\xc2\xad\nble law, make available any equipment, base facility, or research\nfacility of the Army, Navy, Air Force, or Marine Corps to any\nFederal, State, or local civilian law enforcement official for law\nenforcement purposes.\n(Emphasis added.)\nThe central support for this reading of the phrase, \xe2\x80\x9c in accordance with other\napplicable law,\xe2\x80\x9d is the following passage from the report of the House Commit\xc2\xad\ntee of the Judiciary, H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 9 (1981):\nThe Committee on Government Operations expressed some con\xc2\xad\ncern that the proposed section, as reported by the Armed Services\nCommittee, could cause potential conflicts with the application cf\nother property disposition statutes. Thus, at the recommendation\n\nof the Committee on Government Operations and with the support\nof the Department of Defense, the [Judiciary] Committee added\nthe phrase \xe2\x80\x98in accordance with other applicable law\xe2\x80\x99 to clarify\nthe continued application c f the disposition procedures c f the\nEconomy Act, 31 U.S.C. 638a, and other similar provisions. See,\ne .g ., 10 U .S.C . 2576 a n d 2667 (governing the disposition of\n\ncertain real and personal military property).\n(Emphasis added.) The foregoing reference to the \xe2\x80\x9cdisposition procedures of the\nEconomy Act, 31 U .S.C . 638a,\xe2\x80\x9d is said by the Defense Department to demon\xc2\xad\nstrate that Congress intended to retain the reimbursement requirements that\nwould apply if the provision of assistance to civilian law enforcement agencies\nunderthe Act were to proceed entirely under the Economy Act, 31 U.S.C. \xc2\xa7 686.\n\n474\n\n\x0cWe have a number of difficulties with this contention. First, the statute cited as\nthe Economy Act in the foregoing passage from the Committee report, 31\nU.S.C. \xc2\xa7 638a, is not the same as the statute upon which the Defense Depart\xc2\xad\nment seeks to rely, namely, 31 U.S.C. \xc2\xa7 686. The statute actually cited by the\nCommittee\xe2\x80\x94 31 U.S.C. \xc2\xa7 638a\xe2\x80\x94 deals specifically with the purchase, opera\xc2\xad\ntion, use, and maintenance of passenger motor vehicles and aircraft by the\nfederal government." Although it might be suggested that the Committee report\nmade a mistake in citation, the statute actually cited does appear directly relevant\nto the point the Committee report was making, namely, that \xe2\x80\x9c disposition pro\xc2\xad\ncedures\xe2\x80\x9d specifically relating to federal property should continue to apply.\nMoreover, it bears noting that such \xe2\x80\x9c disposition procedures\xe2\x80\x9d are not in any\nobvious or necessary sense \xe2\x80\x9c similar\xe2\x80\x9d to principles of reimbursement under 31\nU.S.C. \xc2\xa7 686.12 The two statutes cited by the Committee in addition to 31\nU.S.C. \xc2\xa7 638a deal respectively with the sale to law enforcement and firefight\xc2\xad\ning agencies of surplus military equipment, 10 U.S.C. \xc2\xa7 2576, and leases by\nmilitary departments of \xe2\x80\x9c non-excess\xe2\x80\x9d property, 10 U.S.C. \xc2\xa7 2667. These stat\xc2\xad\nutes, combined with 31 U.S.C. \xc2\xa7 638a, place specific limits on the disposition of\nfederal property. The particular requirements in these three statutes are simply\nnot the same as the general principles concerning reimbursement on which the\nDefense Department seeks to rely.\nThe evidently limited reference of the \xe2\x80\x9c other applicable law\xe2\x80\x9d language in\n\xc2\xa7 372 is confirmed by a passage in the report of the House Committee on\nGovernment Operations. It should be recalled that the House Judiciary Commit\xc2\xad\ntee, in adding the \xe2\x80\x9c other applicable law\xe2\x80\x9d language, stated that it was doing so in\nresponse to the concern of the Government Operations Committee that the lack of\nsuch language \xe2\x80\x9c could cause potential conflicts with the application of other\nproperty disposition statutes.\xe2\x80\x9d Accordingly, the explanation of the Government\nOperations Committee of the meaning of the phrase \xe2\x80\x9c other applicable law\xe2\x80\x9d\nshould be given particular weight. That Committee explained the language as\nfollows:\nUnder an amendment adopted by the Judiciary Committee on\nJune 9,1981, the provision of military equipment and facilities to\nlaw enforcement officials would be made \xe2\x80\x98in accordance with\napplicable law.\xe2\x80\x99 It is the Committee\xe2\x80\x99s understanding that this\nlanguage would bring [the section] under the terms of the proper\xc2\xad\nty management and disposal provisions c f the Federal Property\nand Administrative Services A ct c f 1949P\n11 U nder3l U S.C \xc2\xa7 638a, a number oflimitations are placed on the purchase or hire of passenger motor vehicles\nand aircraft by the federal government.\n12 The need to be clear about exactly which statutes were intended to remain applicable under \xc2\xa7 372 is obvious in\nlight of such additional statements in the legislative history as the following: "T he sale, donation or other outright\ntransfer of such equipment to civilian law enforcement agencies shall be in accordance with existing statutes\ncovering such transfers\xe2\x80\x9d S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added). This statement\nsuggests, but by itself does not make fully clear, that the relevant statutes are those dealing specifically with property\nor equipment transfers, which constitute a distinct subject from that o f reimbursement for any of a variety of types of\nassistance provided by one agency to another under 31 U S C \xc2\xa7 686.\n13 See also H .R. Rep. No 311, 97th Cong., 1st Sess 119 (1981) ("This provision [speaking of \xe2\x80\x9c other applicable\nlaw\xe2\x80\x9d ] assures the continued application of existing law, such as the Federal Property and Administrative Services\nAct of 1949\xe2\x80\x9d )\n\n475\n\n\x0cH.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981). This reference to the\nFederal Property and Administrative Services Act underscores that the Govern\xc2\xad\nment Operations Committee\xe2\x80\x99s intention was to guarantee that that statute\xe2\x80\x99s\nprovisions\xe2\x80\x94 not general reimbursement principles under 31 U.S.C. \xc2\xa7 686\xe2\x80\x94\nwould continue to operate under this Act.\nIn short, we are unconvinced that the inclusion in \xc2\xa7 372 of the \xe2\x80\x9c other\napplicable law\xe2\x80\x9d language was intended to have the far-reaching effects attributed\nto the language by the Defense Department. We believe that the phrase \xe2\x80\x9c other\napplicable law\xe2\x80\x9d in \xc2\xa7 372 refers to the specific statutes cited in the legislative\nhistory, which do not include 31 U .S.C . \xc2\xa7 686. This conclusion is buttressed by\nthe canon of statutory construction that each provision of a statute should be read\nto have independent meaning.14 If \xc2\xa7 372 had been intended to have the meaning\nattributed to it by the Defense Department, it would constitute in effect a\nnullification of the plain language of \xc2\xa7 377, a result finding no support in the\nlanguage, history, or purposes of the A ct.15\nB. The A ct\xe2\x80\x99s Legislative History\n\nThe Defense Department also argues that the legislative history supports its\nview that the Secretary of Defense has no general authority to waive reimburse\xc2\xad\n14 Courts have noted that, in the normal case, every word Congress uses in a statute should be given effect See,\ne g , Reiter v. Sonotone Corp., 4 4 2 U S 330, 339 (1979). This approach is reflected in the notion that the \xe2\x80\x9c meaning\nof a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in\nview,\xe2\x80\x9d Panama Refining Co. v Ryan, 293 U S 388, 439 (1935) (Cardozo, J , dissenting), and that \xe2\x80\x9c a section of a\nstatute should not be read in isolation from the context of the whole Act. . .\xe2\x80\x9d Richards v. United Stales, 369 U S.\n1,11 (1962). Moreover, a court interpreting a statute is not \xe2\x80\x9c at liberty to imply a condition which is opposed to the\nexplicit terms of the statute\n. . To [so] hold\nis not to construe the Act but to amend it \xe2\x80\x9d Detroit Trust Co. v The\nBarium , 293 U S. 21, 38 (1934), quoted in Fedorenko v United States, 449 U S. 490, 513 (1981)\n15 We also note that \xc2\xa7 371 specifies that action pursuant to it shall be \xe2\x80\x9c in accordance with other applicable law.\xe2\x80\x9d\nThis provision authorizes the sharing of information obtained by the Defense Department \xe2\x80\x9c dunng the normal course\nof military operations.\xe2\x80\x9d To what does the \xe2\x80\x9c in accordance with other applicable law\xe2\x80\x9d language in \xc2\xa7 371 refer9 To be\nconsistent with its argum ent about \xc2\xa7 372, the D efense Department apparently would have to argue that it refers to\nthe Economy Act, 31 U .S .C . \xc2\xa7 686\nHowever, we are aware of no legislative history to that effect Indeed, the House Judiciary Committee specifically\nstated that the \xe2\x80\x9c other applicable law\xe2\x80\x9d language in \xc2\xa7 371 refers to the Privacy Act (without mentioning 31 U S.C.\n\xc2\xa7 686). \xe2\x80\x9c The phrase \xe2\x80\x98in accordance with other applicable law\xe2\x80\x99 as used in section 371 is meant to continue the\napplication of the Privacy Act to this type of intelligence sharing. See 5 U.S.C. 552a.\xe2\x80\x9d H .R. Rep. No 71, 97th\nC ong., IstS ess. (pt 2)8 (1 9 8 1 ) S e ea/w H .R . Rep. No 3 1 1 ,97thC ong , IstSess. 119(1981). This explanation of\n\xc2\xa7 371 seems to confirm a pattern by which C ongress, in referring to \xe2\x80\x9c other applicable law\xe2\x80\x9d in certain provisions\ngranting the Defense Department authonty to provide assistance, was intending to refer to statutes directly bearing\non the specific subject matter of the authorizing provision in question Such a pattern is not consistent with the\nDefense D epartm ent\xe2\x80\x99s suggestion that \xe2\x80\x9c other applicable law\xe2\x80\x9d refers to a broad set of principles relating to\nreimbursement under the Economy Act in general\nFurthermore, even if the phrase refemng to \xe2\x80\x9c other applicable law \xe2\x80\x9d in \xc2\xa7\xc2\xa7 372 and 371 were to be construed\xe2\x80\x94\ncontrary lo what we consider the reasonable construction\xe2\x80\x94 as effectively nullifying the reimbursement provision, it\nis difficult to understand how such a construction would lead to the result sought by the Defense Department with\nrespect lo assistance provided under \xc2\xa7\xc2\xa7 373 and 374 The latter two provisions do not contain \xe2\x80\x9c other applicable\nlaw\xe2\x80\x9d language. Although they do refer to equipment provided under \xc2\xa7 372, their subjects are distinct from that of\n\xc2\xa7 372: \xc2\xa7 373 deals with the use of Defense personnel in training and advisory capacities, and \xc2\xa7 374 deals with the\nuse o f Defense\'personnel.in operating and maintaining equipment provided under \xc2\xa7 372 In order for the Defense\nDepartment to establish its position with respect to \xc2\xa7\xc2\xa7 373 and 374, it would be necessary to conclude that the fact\nthat those sections involve the use of personnel in connection with equipment provided under \xc2\xa7 372 is sufficient tc\nlimit the assistance of such personnel in the same manner that the use of equipment is said to be limited under \xc2\xa7 372\n\xe2\x80\x9c in accordance with other applicable law\xe2\x80\x9d We believe lhat this argument is excessively attenuated. Not only does i\'\ndepend on an interpretation of \xe2\x80\x9c other applicable law \xe2\x80\x9d that is not borne out by the legislative history, but it alsc\ndepends on reading into \xc2\xa7\xc2\xa7 373 and 374 language that is not contained in those provisions\n\n476\n\n\x0cment for assistance provided under the Act. The initial difficulty with this\nargument is that legislative history cannot serve to supersede the plain language\nof a statutory provision such as \xc2\xa7 377. It is an established canon of statutory\nconstruction that \xe2\x80\x9c legislative intention, without more, is not legislation.\xe2\x80\x9d Train\nv. City of New York, 420 U.S. 35, 45 (1975).\nIn any event, we do not read the passages in the legislative history on which the\nDefense Department seeks to rely as supporting the view advanced by that\nDepartment. The problems with relying on the passages may be shown with\nreference to each one.\nOne of the central passages relied upon in the March 26, 1982, letter from the\nDeputy Secretary of Defense to the Attorney General is the following drawn from\nremarks by Congressman Hughes during floor debate on the House bill:\n[UJnder the provisions of the bill any loaning of equipment or any\nloaning of personnel is reimbursable. It does not come out of the\nDepartment of Defense budget. We are not asking the Defense\nDepartment to use their amounts set aside fo r the military mission\nfo r law enforcement purposes.\n\n127 Cong. Rec. H 4066 (daily ed. July 8, 1981). These remarks are quoted in\ntheir fuller context above.\nThe main observation to make about the foregoing remarks is that they merely\nstate that the Defense Department is not required under the Act to use money\nappropriated specifically for military purposes to pay for assistance provided\nunder the bill. As Congressman Hughes noted, Congress is \xe2\x80\x9c not asking the\nDefense Department to use their amounts set aside for the military mission for\nlaw enforcement purposes.\xe2\x80\x9d That, however, is not the question before us. Our\nquestion is whether the Defense Department has discretion under the Act to\ndetermine whether it will condition authorized assistance on reimbursement. It\nis, in brief, a non sequitur to argue that because Congressman Hughes indicated\nthat Congress was not requiring the Defense Department to use military funds to\npay for assistance provided under the bill, therefore the Defense Department is\nrequired by the Act to demand reimbursement when it does provide assistance.\nThe latter proposition, in our view, is not established by the quoted comments.\nAnother passage relied upon by the Defense Department is taken from testi\xc2\xad\nmony by the Department\xe2\x80\x99s General Counsel on June 3, 1981, as follows:\nSection 374 [of the House bill] contains two provisions of consid\xc2\xad\nerable importance to the Department of Defense. . . .Subsection\n(b) requires the Secretary to issue regulations governing reim\xc2\xad\nbursement to the Department of Defense, an essential element of\nthe legislation. The funding of nonmilitary law enforcement\nactivities is the responsibility of those agencies given the au\xc2\xad\nthority to investigate and prosecute crimes against the United\nStates. The Department c f Defense is pleased to provide assist\xc2\xad\nance, consistent with the limitations set forth in this legislation\n477\n\n\x0cand other laws, but we cannot use defense resources to fund the\nactivities c f other agencies cf the federal government. We have\nrequired reimbursement in the past when costs have been incurred\nin the provision cfsuch assistance, and we shall continue to do so\nunder the provision cf this legislation if enacted.\nPosse Comitatus Act: Hearings on H.R. 3519 Before the Subcomm. on Crime cf\nthe House Comm, on the Judiciary, 97th Cong., IstSess. 15\xe2\x80\x9416 (1981) (empha\xc2\xad\n\nsis added). In the Defense Department\xe2\x80\x99s view, this statement confirms that it\nalways has intended to approach the issue of reimbursement under the Act in the\nsame manner in which it approached reimbursement prior to the Act\xe2\x80\x99s passage.\nOur difficulty with relying on this testimony in the present context is that it\nmerely reflects the Defense Department\xe2\x80\x99s intention at the time of testimony with\nrespect to implementing any powers it would have under the bill, if enacted, and\nit discusses the Department\xe2\x80\x99s past practices regarding reimbursement. However,\nthese are not the issues with which we are primarily concerned. Our question is\nwhether the Act requires the Defense Department to implement its stated desire\nof seeking reimbursement in certain circumstances.16 The testimony of the\nGeneral Counsel establishes only that the Defense Department informed Con\xc2\xad\ngress that it would generally seek reimbursement, but this does not clarify the\nfundamental issue whether that Department is legally compelled to do so.\nAn additional passage in the legislative history relied upon by the Defense\nDepartment is the following from the report of the House Judiciary Committee:\nThe final subsection of proposed section 374 authorizes the Secre\xc2\xad\ntary of Defense to issue regulations which may condition the\nrendering of any assistance under this Chapter upon a reimburse\xc2\xad\nment to the military. According to information received from the\nCoast Guard, United States Customs Service, and the Depart\xc2\xad\nment of Justice (the Federal agencies most likely to request\nassistance), this reimbursement provision is acceptable and\nshould not require any immediate increase in the budgets of those\nagencies. The availability of this reimbursement option is not\nmeant to serve as an excuse fo r the Secretary c f Defense to decline\nto cooperate in the provision cf assistance. Rather, the reimburse\xc2\xad\nment option should serve instead a s an informal check c f (sic) the\nmagnitude and frequency c f the requests made by civilian law\nenforcement officials. The availability c f military assistance is not\nintended by the Committee to be an indirect method of increasing\nthe budget authority c f the civilian law enforcement agency.\n\nH.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).\n16 One must bear in mind the fundamental distinction between a requirement to do X and the authority to d o X . In\nthis context, the Defense Department has the authority to implement its stated intention of seeking reimbursement\nunder the A ct\'s reimbursement provision This does not mean, however, that the Department is necessarily required\nto seek reimbursement. The tw o matters are a n d must be kept analytically distinct.\n\n478\n\n\x0cOur inability to derive from the foregoing passage the conclusion preferred by\nthe Defense Department rests primarily on the fact that the passage speaks of\nreimbursement in terms of an \xe2\x80\x9c option\xe2\x80\x9d available to the Defense Department, not\nin terms of a legal requirement. As we noted earlier, it is clear that the Committee\nwas sensitive to the need to balance the interests of the Defense Department in not\nhaving to pay for all of the assistance it provides to civilian law enforcement\nofficials against the legislative desire to authorize such assistance. But it simply\ndoes not follow from this that the Defense Department is legally required under\nthe Act to seek reimbursement. If it were, the Department would not have the\n\xe2\x80\x9c option\xe2\x80\x9d evidently contemplated by the Committee.17\nTo summarize, the Defense Department\xe2\x80\x99s argument based on legislative histo\xc2\xad\nry founders, first, on the canon of construction that legislative history cannot\novercome the plain language of a statutory provision and, second, on the fact that\nthe passages cited do not appear directly to support the notion that the Depart\xc2\xad\nment is required by the Act to seek reimbursement for assistance authorized by\nthe Act.\nC. The Defense Department\xe2\x80\x99s Construction c f the Act\n\nImplicit in the Defense Department\xe2\x80\x99s position is the further argument that its\ninterpretation of Congress\xe2\x80\x99 intention should be controlling since it is the agency\ncharged with implementing the statute by regulation. Also, it actively partici\xc2\xad\npated in the legislation\xe2\x80\x99s drafting, and thus may be presumed to have intimate\nknowledge of the congressional design. We acknowledge that these facts dis\xc2\xad\ntinguished the present case from one in which an agency charged with imple\xc2\xad\nmenting a statute has not been similarly involved with the statute in question.\nSurely a court reviewing the legal issue presented to us would accord a responsi\xc2\xad\nble agency\xe2\x80\x99s view a certain respect in light of the normal understanding that such\nan agency is in a position to grasp the legislature\xe2\x80\x99s intent.18\nHowever, there are two difficulties with relying on any presumption that the\nDefense Department\xe2\x80\x99s views should be accorded special weight in this case.\nFirst, the Defense Department is not the only agency in the Executive Branch\naffected by the authority conferred by the Act, nor is it the only agency that was\ninvolved in deliberations prior to the Act\xe2\x80\x99s passage. This Department, as the\nmajor civilian law enforcement agency, is intimately affected by the Act and\nplayed a role in deliberations leading to its enactment. Accordingly, any argu\xc2\xad\nment by the Defense Department that its views should be accorded special\nconsideration must be balanced against the fact that it is not the only department\nwhose views are entitled to consideration.\nMore importantly, a court will not blindly give weight to a particular agency\xe2\x80\x99s\nviews of a statute affecting the agency. To the contrary, courts have made clear\n17 For further discussion of this passage from the House Judiciary Committee report, see supra.\n18 See generally Red Lion Broadcasting Co. v. FCC, 395 U S. 367, 381 (1969); Zemel v. Rusk, 381 U .S 1,\n11-12 (1965); Udall v. Tollman, 380 U.S. 1, 16 (1965). See also SEC v Sloan, 436 U.S 103 (1978); General\nElectric Co. v Gilbert, 429 U.S. 125, 141 (1976).\n\n479\n\n\x0cthat their primary responsibility of deciding issues of law arising in cases\ninvolving challenges to an agency\xe2\x80\x99s action requires them to reach an independent\njudgment in light of statutory language and legislative history. Courts in general\nwill not defer to an administrative interpretation when it is not consistent with a\nstatute\xe2\x80\x99s language and history.19\nIn this case, there is no doubt that the Secretary of Defense, subject to the\nsupervisory power of the President, has the authority and responsibility to issue\nregulations dealing with the issue of reimbursement. However, the Secretary may\nnot read into the statute a legal requirement that is not contained therein. In our\nview, for the reasons stated earlier, we do not believe that the Secretary is required\nby the Act to seek reimbursement.\nIII. Conclusion\nIn conclusion, we believe that the Act\xe2\x80\x99s reimbursement provision means what\nit says: the Secretary of Defense \xe2\x80\x9c shall issue regulations providing that reim\xc2\xad\nbursement may be a condition of assistance\xe2\x80\x9d under the Act. We cannot find in\nthis provision, its legislative history, other provisions of the statute, or the Act\xe2\x80\x99s\nlegislative history in general any legal requirement that reimbursement be sought\nunder the Act. Also, since this Act provides authority for the Defense Depart\xc2\xad\nment to assist civilian law enforcement officials in certain circumstances, there is\nno occasion to rely on the Economy Act, 31 U.S.C. \xc2\xa7 686, as the authority under\nwhich the Defense Department will provide such assistance. Therefore, this is\nnot a situation in which reimbursement is governed by the law that would have\napplied under the Economy Act itself.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n19 A court\xe2\x80\x99s deference to an agency\xe2\x80\x99s construction is constrained by the statute *s language, history and purposes.\nSee Teamsters v. D aniel. 439 U .S 551, 566 n 2 0 (1979), Morton v. Ruiz, 415 U .S. 199, 237 (1974); Billings v.\nTruesdell, 321 U S. 542, 552-53 (1944); Great Northern Ry Co. v. United States, 315 U.S 262, 275-76(1942);\nU nited States v. Jackson, 280 U .S 183, 193 (1930). Courts are the final authorities on issues of statutory\ninterpretation and \xe2\x80\x9c are not obliged to stand aside and rubber stamp their affirmance of administrative decisions that\nthey deem inconsistent with a statutory mandate o r that frustrate the congressional policy underlying a statute \xe2\x80\x9d\nVolkswagenwerk Aktiengesellschaft v. FMC, 390 U .S. 261, 272 (1968).\n\n480\n\n\x0c'


b'Constitutional Issues Raised by Commerce, Justice, and\nState Appropriations Bill\nA provision prohibiting the use of appropriated funds for United Nations peacekeeping missions\ninvolving the use of United States Armed Forces under the command of a foreign national unconstitutionally constrains the President\xe2\x80\x99s authority as Commander in Chief and his authority over foreign\naffairs.\nA provision prohibiting the use of appropriated funds for cooperation with, assistance to, or other\nsupport for the International Criminal Court would be unconstitutional insofar as it would prohibit\nthe President from providing support and assistance to the ICC under any and all circumstances, but\nit can be applied in a manner consistent with the President\xe2\x80\x99s constitutional authority in the area of\nforeign affairs.\n\nNovember 28, 2001\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nThis memorandum responds to your request for our views on four provisions in\nH.R. 2500, the Departments of Commerce, Justice, and State, the Judiciary, and\nRelated Agencies Appropriations Bill for Fiscal Year 2002, 107th Cong. (2001)\n(\xe2\x80\x9cCJS appropriations bill\xe2\x80\x9d): sections 609 (participation in United Nations peacekeeping), 612 (Department of Justice anti-terrorism restructuring), 626 (removing\nforeign sovereign immunity in pending Iran hostages litigation), and 630 (support\nfor International Criminal Court).\nWe conclude that section 626 does not raise constitutional concerns, but that\nsection 609 unconstitutionally constrains the President\xe2\x80\x99s Commander-in-Chief and\nforeign affairs authority, section 612 represents the sort of legislative micromanagement of the Executive Branch that should be resisted on separation of powers\npolicy grounds, and application of section 630 in certain circumstances would\nunconstitutionally interfere with the President\xe2\x80\x99s foreign affairs authority.\nI. Section 609\nSection 609 provides that:\nNone of the funds made available by this Act may be used for any\nUnited Nations undertaking when it is made known to the Federal\nofficial having authority to obligate or expend such funds: (1) that\nthe United Nations undertaking is a peacekeeping mission; (2) that\nsuch undertaking will involve United States Armed Forces under the\ncommand or operational control of a foreign national; and (3) that\nthe President\xe2\x80\x99s military advisors have not submitted to the President\na recommendation that such involvement is in the national security\n\n279\n\n227-329 VOL_25_PROOF.pdf 289\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ninterests of the United States and the President has not submitted to\nthe Congress such a recommendation.\nSection 609 thus prohibits the use of appropriated funds (by entities receiving\nappropriations under the CJS appropriations bill) for the participation of United\nStates Armed Forces in a United Nations peacekeeping mission under foreign\ncommand, unless the President\xe2\x80\x99s military advisors have recommended such\ninvolvement and the President has submitted such recommendation to Congress.\nThis provision first appeared in CJS appropriations bills in 1996. We have\nconsistently taken the position that it is unconstitutional and have submitted\nsigning statement language saying that the provision unconstitutionally constrains\nthe President\xe2\x80\x99s Commander-in-Chief authority and that the President will apply it\nconsistent with his constitutional responsibilities.\nOur position has been based on the analysis that it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the President\xe2\x80\x99s\nexercise of his constitutional authority\xe2\x80\x94as Commander in Chief and with respect\nto the conduct of diplomacy\xe2\x80\x94to order United States military participation in an\nUnited Nations peacekeeping operation. Specifically, it is unconstitutional to\nrequire the President to satisfy the requirements set forth in section 609: that the\nPresident\xe2\x80\x99s military advisors have recommended that the involvement in the\npeacekeeping operation is in the national security interests of the United States and\nthat the recommendation has been submitted to Congress.\nOur analysis starts with the constitutional principle that responsibility for the\nconduct of foreign affairs and for protecting the national security are \xe2\x80\x9c\xe2\x80\x98central\xe2\x80\x99\nPresidential domains.\xe2\x80\x9d Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The\nPresident\xe2\x80\x99s constitutional responsibilities in both these areas flow from the specific\ngrants of authority in Article II making him Chief Executive, U.S. Const. art. II,\n\xc2\xa7 1, cl. 1, and Commander in Chief, id. art. II, \xc2\xa7 2, cl.1, see Nixon v. Fitzgerald,\n457 U.S. 731, 749-50 (1982), as well as from the \xe2\x80\x9cunique position\xe2\x80\x9d that the\nPresident occupies in the constitutional structure, id. at 749. The President\xe2\x80\x99s\nexclusive authority to conduct the Nation\xe2\x80\x99s diplomatic relations with other States\nderives primarily from the Vesting Clause and the Commander-in-Chief Clause,\nand is buttressed by the President\xe2\x80\x99s more specific powers to \xe2\x80\x9cmake Treaties,\xe2\x80\x9d U.S.\nConst. art. II, \xc2\xa7 2, cl. 2; to \xe2\x80\x9cappoint Ambassadors . . . and Consuls,\xe2\x80\x9d id.; and to\n\xe2\x80\x9creceive Ambassadors and other public Ministers,\xe2\x80\x9d id. art. II, \xc2\xa7 3.\nThe Supreme Court has consistently \xe2\x80\x9crecognized \xe2\x80\x98the generally accepted view\nthat foreign policy [is] the province and responsibility of the Executive.\xe2\x80\x99\xe2\x80\x9d Dep\xe2\x80\x99t of\nNavy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 29394 (1981)). See also Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (President is\nthe nation\xe2\x80\x99s \xe2\x80\x9cguiding organ in the conduct of our foreign affairs\xe2\x80\x9d); Ex parte\nHennen, 38 U.S. (13 Pet.) 230, 235 (1839) (\xe2\x80\x9cAs the executive magistrate of the\ncountry, he is the only functionary intrusted with the foreign relations of the\n\n280\n\n227-329 VOL_25_PROOF.pdf 290\n\n10/22/12 11:10 AM\n\n\x0cConstitutional Issues Raised by Commerce, Justice, and State Appropriations Bill\n\nnation.\xe2\x80\x9d); Secretary of State Thomas Jefferson, Opinion on the Question Whether\nthe Senate Has the Right to Negative the Grade of Persons Appointed by the\nExecutive to Fill Foreign Missions (Apr. 24, 1790), in 5 The Writings of Thomas\nJefferson 161 (Paul L. Ford ed., 1895); The President\xe2\x80\x99s Compliance with the\n\xe2\x80\x9cTimely Notification\xe2\x80\x9d Requirement of Section 501(b) of the National Security Act,\n10 Op. O.L.C. 159, 162 (1986) (\xe2\x80\x9cThe presumptively exclusive authority of the\nPresident in foreign affairs was asserted at the outset by George Washington and\nacknowledged by the First Congress.\xe2\x80\x9d).\nIt is vital to the President\xe2\x80\x99s ability to conduct diplomatic relations that he\nshould have the authority to deploy United States Armed Forces in the international arena, and be able to threaten credibly to do so. 1 Furthermore, the authority to\ndeploy military force in the defense of the security and interests of the United\nStates is expressly placed under the President\xe2\x80\x99s authority by the Commander-inChief Clause, U.S. Const. art. II, \xc2\xa7 2, cl. 1. The \xe2\x80\x9cinherent powers\xe2\x80\x9d of the President\nas Commander in Chief are \xe2\x80\x9cclearly extensive.\xe2\x80\x9d Loving v. United States, 517 U.S.\n748, 776 (1996) (Scalia, J., concurring in part and concurring in the judgment). As\nAttorney General, later Justice, Robert Jackson explained:\nArticle II, section 2, of the Constitution provides that the President \xe2\x80\x9cshall be Commander in Chief of the Army and Navy of the\nUnited States.\xe2\x80\x9d By virtue of this constitutional office he has supreme\ncommand over the land and naval forces of the country and may\norder them to perform such military duties as, in his opinion, are\nnecessary or appropriate for the defense of the United States. These\npowers exist in time of peace as well as in time of war. . . .\nThus the President\xe2\x80\x99s responsibility as Commander in Chief\nembraces the authority to command and direct the armed forces in\ntheir immediate movements and operations designed to protect the\nsecurity and effectuate the defense of the United States. . . . [T]his\nauthority undoubtedly includes the power to dispose of troops and\nequipment in such manner and on such duties as best to promote the\nsafety of the country.\n1\nLongstanding historical practice supports the claim of presidential authority to deploy the armed\nforces as a tool of foreign policy. See, e.g., Memorandum on the Authority of the President to Repel the\nAttack in Korea, 23 Dep\xe2\x80\x99t of State Bull. 173, 174 (1950) (historical practice supports use of United\nStates forces \xe2\x80\x9cin the broad interests of American foreign policy\xe2\x80\x9d). The President has \xe2\x80\x9c\xe2\x80\x98authority to\ncommit troops overseas without specific prior Congressional approval \xe2\x80\x9con missions of good will or\nrescue, or for the purpose of protecting American lives or property or American interests.\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d The\nPresident\xe2\x80\x99s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations\nSupporting Them, 25 Op. O.L.C. 188, 197 (2001) (quoting Authority to Use United States Military\nForces in Somalia, 16 Op. O.L.C. 6, 6 (1992) (Barr, A.G.) (quoting Training of British Flying Students\nin the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 62 (1941) (Jackson, A.G.))).\n\n281\n\n227-329 VOL_25_PROOF.pdf 291\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nTraining of British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 6162 (1941).\nCongress cannot, in the manner set forth in section 609, place impediments on\nthe President\xe2\x80\x99s ability to deploy United States forces abroad for purposes he deems\nvital to the national security. 2 As we have noted, long historical practice supports\nthe legitimacy of the President\xe2\x80\x99s deploying military forces abroad in order to\nprotect the nation\xe2\x80\x99s security and to uphold its interests. Moreover, as Commander\nin Chief, the President must be able to determine, not only whether United States\nArmed Forces are to be deployed abroad, but also under what conditions they are\nto be deployed. Thus, the President has the authority to decide, within applicable\nconstitutional limits, what command structures the forces deployed are to have,\nwhat tactics they are to adopt, what military objectives they are to pursue, and\xe2\x80\x94\nmost relevantly here\xe2\x80\x94whether and how they are to cooperate with foreign or\ninternational forces in the same theater of operations. Such decisions implicate\nboth military and diplomatic judgments which the President alone is constitutionally empowered to make. Taking account of military needs and of foreign\nrelations, the President may well conclude, in particular circumstances, that it\nserves the nation\xe2\x80\x99s security and foreign policy best to deploy our forces as part of a\nUnited Nations operation, rather than unilaterally (or not at all). 3 Congress is\nwithout power to prevent the President from acting on that conclusion.\nThe fact that in section 609 Congress is placing a condition on the President\xe2\x80\x99s\nexercise of his constitutional authority indirectly, through the appropriations\nprocess, rather than as a direct mandate, does not change our conclusion. \xe2\x80\x9cBroad\nas the spending power of the Legislative Branch undoubtedly is, it is clear that\nCongress may not deploy it to accomplish unconstitutional ends.\xe2\x80\x9d Presidential\nCertification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act, 20 Op. O.L.C. 253, 266 (1996). Of\nparticular relevance in the present context is the principle that \xe2\x80\x9c\xe2\x80\x98Congress cannot\nuse the appropriations power to control a Presidential power that is beyond its\ndirect control.\xe2\x80\x99\xe2\x80\x9d Id. (citation omitted).\nThe Executive Branch\xe2\x80\x99s insistence on this principle is longstanding. In 1860,\nPresident Buchanan issued a signing statement denying Congress\xe2\x80\x99s power to\ninterfere with his authority to issue orders to military officers through the device of\n\n2\nNone of Congress\xe2\x80\x99s enumerated powers in Article I appears to provide a basis for limiting, in the\nmanner proposed by the bill, the authority of the President to make the deployments in question. We do\nnot see, for example, how the proposed prohibition on deployments could fairly be described as an\nexercise of Congress\xe2\x80\x99s power to \xe2\x80\x9cdeclare War,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 11; of the power to \xe2\x80\x9craise and\nsupport Armies,\xe2\x80\x9d id. cl. 12; or to \xe2\x80\x9cmake Rules for the Government and Regulation of the land and naval\nForces,\xe2\x80\x9d id. cl. 14.\n3\nSee John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673,\n1707-08 (2000) (explaining why multilateralism was preferable to unilateralism from the United States\xe2\x80\x99\npoint of view in responding to crisis in Kosovo).\n\n282\n\n227-329 VOL_25_PROOF.pdf 292\n\n10/22/12 11:10 AM\n\n\x0cConstitutional Issues Raised by Commerce, Justice, and State Appropriations Bill\n\na condition on the availability of appropriated funds. The President therefore\nconstrued the statute at issue not to work such an interference. See Signing\nStatement of President Buchanan to the House of Representatives (1860),\nreprinted in 7 A Compilation of the Messages and Papers of the Presidents 3128\n(James D. Richardson ed., 1897). The views expressed in the signing statement\nwere subsequently reviewed and endorsed by an opinion the President requested\nfrom Attorney General Black. The Attorney General wrote that \xe2\x80\x9c[i]f Congress had\nreally intended to [interfere with the President\xe2\x80\x99s command authority], that purpose\ncould not be accomplished in this indirect manner any more than if it was attempted directly.\xe2\x80\x9d Memorial of Captain Meigs, 9 Op. Att\xe2\x80\x99y Gen. 462, 469 (1860). Since\nthat time, the Executive has consistently denied the binding effect of appropriations conditions that violate the constitutional separation of powers or usurp the\nPresident\xe2\x80\x99s constitutional authority.\nFinally, we do not think that section 609\xe2\x80\x99s authorization to participate in a\npeacekeeping operation if the President\xe2\x80\x99s military advisors have recommended the\nparticipation and the recommendation has been submitted to Congress saves\nsection 609 from unconstitutionality. Congress can exempt the President from a\nlegislative restriction only if it has the authority to impose that restriction in the\nfirst place. For the reasons stated above, we do not think Congress has such power.\nII. Section 612\nSection 612 addresses the subject of the organization of the Department of\nJustice with respect to combating terrorism. Subsection (a) of section 612 requires\nthe President to\nsubmit as part of the fiscal year 2003 budget to Congress a proposal\nto restructure the Department of Justice to include a coordinator of\nDepartment of Justice activities relating to combating domestic terrorism, including State and local grant programs subject to the\nauthority of the Attorney General, and who will serve as the Department of Justice representative at interagency meetings on combating\nterrorism below the Cabinet level.\nViewed in isolation, subsection (a) appears to require the President to submit a\nlegislative proposal to Congress, which would raise constitutional concerns under\nthe Recommendations Clause, which provides that the President \xe2\x80\x9cshall from time\nto time . . . recommend to [Congress] . . . such Measures as he shall judge\nnecessary and expedient.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3. Under the Recommendations\nClause, Congress cannot compel the President to submit legislative proposals to\nCongress.\nWhen subsection (a) is read in conjunction with the remainder of section 612,\nhowever, it is apparent that section 612 does not require the President to submit a\n\n283\n\n227-329 VOL_25_PROOF.pdf 293\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nlegislative proposal. Rather, he is being given the choice of submitting a legislative proposal under subsection (a) or acquiescing in the congressional proposal set\nforth in the remainder of section 612. Subsection (b) provides that \xe2\x80\x9c[i]f the\nPresident does not submit a proposal as described in subsection (a), or if Congress\nfails to enact legislation establishing a new position described in subsection (a), by\nJune 30, 2002, then effective on such date subsections (c) through (f) [the\nremaining provisions of section 612] shall take effect.\xe2\x80\x9d Those remaining subsections establish the position of Deputy Attorney General for Combating Domestic\nTerrorism.\nThus, the legislative proposal provision of subsection (a) is not a mandatory\nrequirement for the President, but is merely part of a mechanism created by the\nentirety of section 612, under which the congressional enactment set forth in\nsubsections (c) through (f) will go into effect if the President does not propose an\nalternative approach to restructuring the Department of Justice to deal with\nterrorism. The President is not required by section 612(a) to submit legislation to\nCongress because he has the choice of accepting the congressional approach set\nforth in the rest of section 612.\nAlthough we do not believe that section 612 violates the Recommendations\nClause, it does represent the sort of legislative micromanagement of the Executive\nBranch that we have objected to in the past. See Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 253-54 (1989) (stating\nthat \xe2\x80\x9cCongress\xe2\x80\x99 recent interest in determining the precise organizational structure\nof executive branch departments . . . seriously threatens the executive branch\xe2\x80\x99s\nability to effectively and efficiently fulfill its obligations\xe2\x80\x9d). By requiring that a\nparticular executive officer coordinate specific policy and executive decisions,\nsection 612 infringes upon the President\xe2\x80\x99s constitutional authority to direct the\nactivities of the Executive Branch. While Congress has broad authority to\ndetermine what laws the President must enforce, we do not believe that Congress\nhas an entirely free hand in determining how the Executive Branch must be\norganized to enforce those laws. Indeed, if it did, the Executive Branch would be\nsubstantially controlled and administered by the Legislative Branch. Thus, on\nseparation of powers policy grounds, we believe that Congress\xe2\x80\x99s effort to restructure the Department of Justice should be vigorously resisted.\nIII. Section 626\nSubsection (c) of section 626 would amend provisions of the Foreign Sovereign\nImmunities Act (\xe2\x80\x9cFSIA\xe2\x80\x9d) that establish the circumstances in which foreign states\nare not immune from the jurisdiction of the courts of the United States in civil\nactions brought against them. Section 626(c) would amend section 1605(a)(7)(A)\nof the FSIA by specifying that any \xe2\x80\x9cact . . . related to\xe2\x80\x9d a designated case against\nthe Government of Iran presently pending in the U.S. District Court for the District\n\n284\n\n227-329 VOL_25_PROOF.pdf 294\n\n10/22/12 11:10 AM\n\n\x0cConstitutional Issues Raised by Commerce, Justice, and State Appropriations Bill\n\nof Columbia is not protected by foreign sovereign immunity under the FSIA. The\ncase designated in the provision is Roeder v. Islamic Republic of Iran,\nNo. 1:00CV03110(ESG) (D.D.C.). That case, we are advised, is based upon the\nIranian Government\xe2\x80\x99s actions in connection with the detention and mistreatment\nof hostages in the U.S. Embassy in Teheran in 1979. The Civil Division advises\nthat a default judgment has been entered against Iran in that case and proceedings\nto assess damages remain to be held in the U.S. District Court. The United States\nhas filed a motion to intervene and a motion to vacate the judgment, which\nmotions are presently pending.\nWe do not believe section 626(c) raises constitutional concerns. This provision\nwould merely establish by statute that Iran does not have sovereign immunity in\nU.S. courts with respect to the acts related to the Iran hostage crisis that form the\nbasis of the claim in Roeder\xe2\x80\x94a claim that is the subject of ongoing litigation and\nwhich has not been reduced to final judgment. Nothing in the Constitution bars\nCongress from enacting such legislation. In particular, the provision does not\nviolate the principles of the Supreme Court\xe2\x80\x99s precedents in Plaut v. Spendthrift\nFarm, Inc., 514 U.S. 211 (1995), or United States v. Klein, 80 U.S. (13 Wall.) 128\n(1871). Under Plaut, Congress may not enact legislation that requires federal\ncourts to reopen or otherwise alter final judgments. Because the Roeder case has\nnot been reduced to final judgment, the Plaut principle is inapplicable. Even if the\ndefault judgment in question were a final judgment at this stage, section 626(c)\nwould still not appear to violate Plaut because (by denying sovereign immunity) it\nappears to reinforce, rather than reopen, the validity of the judgment against Iran.\nKlein, on the other hand, is sometimes cited for the general proposition that\nCongress may not prescribe to the courts a rule of decision to dictate the court\xe2\x80\x99s\ninterpretation of the law in a particular case. Klein does not, however, prohibit\nCongress from changing the underlying law that governs in a pending case, even if\nthat case was still pending when the change in the law was made. As explained by\nthe Supreme Court in Plaut, \xe2\x80\x9c[w]hatever the precise scope of Klein, . . . later\ndecisions have made clear that its prohibition does not take hold when Congress\n\xe2\x80\x98amend[s] applicable law.\xe2\x80\x99\xe2\x80\x9d 514 U.S. at 218 (quoting Robertson v. Seattle\nAudubon Soc., 503 U.S. 429, 441 (1992)).\nIn addition, we do not believe that section 626(c) is constitutionally objectionable as an improper congressional interference with the President\xe2\x80\x99s foreign affairs\npowers. The Supreme Court has firmly upheld the constitutionality of the FSIA\xe2\x80\x99s\nregulation of foreign sovereign immunity as a valid exercise of Congress\xe2\x80\x99s power\nto regulate foreign commerce and as falling within the proper bounds of Congress\xe2\x80\x99s Article III powers as well. See Verlinden B.V. v. Central Bank of Nigeria,\n461 U.S. 480, 496-97 (1983). Although the provisions of section 626(c) are very\nspecific in their coverage, we cannot say that they exceed the proper scope of\n\n285\n\n227-329 VOL_25_PROOF.pdf 295\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nlegislative regulation upheld by the courts in granting or withholding sovereign\nimmunity to foreign states in the courts of the United States. 4\nIV. Section 630\nSection 630 provides that \xe2\x80\x9c[n]one of the funds appropriated or otherwise made\navailable by this Act shall be available for cooperation with, or assistance or other\nsupport to, the International Criminal Court [(\xe2\x80\x9cICC\xe2\x80\x9d)] or [its] Preparatory\nCommission [(\xe2\x80\x9cCommission\xe2\x80\x9d)].\xe2\x80\x9d We believe that section 630 would be unconstitutional to the extent that it would prohibit the President, through his subordinates,\nfrom providing support and assistance to the ICC or the Commission under any\nand all circumstances. Therefore, we have submitted signing statement language\nsaying that the President will apply this provision consistent with his constitutional\nauthority in the area of foreign affairs.\nSection 630 can be given effect consistent with the Constitution. Prohibiting\ntechnical or ministerial cooperation with or assistance to the ICC or the Commission would generally not interfere with the President\xe2\x80\x99s exercise of his constitutional authority, and therefore as applied to those circumstances section 630 would not\nbe constitutionally problematic.\nSerious as-applied constitutional difficulties would arise under section 630,\nhowever, if its prohibition were to apply to certain diplomatic activities or\nsubstantive positions the President might take with respect to or before the ICC or\nthe Commission. The Constitution commits to the President the primary responsibility for conducting the foreign relations of the United States, see, e.g., Dep\xe2\x80\x99t of\nNavy v. Egan, 484 U.S. at 529 (the Supreme Court has \xe2\x80\x9crecognized \xe2\x80\x98the generally\naccepted view that foreign policy was the province and responsibility of the\nExecutive\xe2\x80\x99\xe2\x80\x9d) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill\nof London, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976) (\xe2\x80\x9c[T]he\nconduct of [foreign policy] is committed primarily to the Executive Branch.\xe2\x80\x9d), and\nthe exclusive responsibility for formulating the position of the United States in\ninternational fora and for conducting negotiations with foreign nations, see, e.g.,\nUnited States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is \xe2\x80\x9cthe constitutional representative of the United States in its dealings with foreign nations\xe2\x80\x9d).\n\n4\nTwo other issues have been raised by section 626. Subsections (a) and (b) purport to require the\nPresident to submit to Congress a detailed legislative proposal dictated by Congress and thus raise clear\nconcerns under the Recommendations Clause. This issue is straightforward, and we have already\naddressed it in our comments to the Office of Management and Budget, which have included\nrecommended language for the President\xe2\x80\x99s signing statement. In addition, the National Security\nCouncil staff has submitted signing statement language indicating that the Executive Branch will act,\nand encourage the courts to act, with regard to subsection (c)\xe2\x80\x99s removal of Iran\xe2\x80\x99s sovereign immunity in\nthe pending litigation, in a manner consistent with the obligations of the United States under the 1981\nAlgiers Accords that achieved the release of the hostages. This Office has cleared that language.\n\n286\n\n227-329 VOL_25_PROOF.pdf 296\n\n10/22/12 11:10 AM\n\n\x0cConstitutional Issues Raised by Commerce, Justice, and State Appropriations Bill\n\nThus, there might well be circumstances in which the President finds it necessary, in the exercise of his constitutional responsibilities, to order an executive\nagency to provide support or assistance to the ICC or the Commission. For\nexample, the President might find that it served overriding United States national\nsecurity and foreign policy interests to assist the ICC in investigating, capturing, or\nprosecuting a prominent foreign individual whose activities threaten American\nlives and interests. Failure to assist the ICC in such efforts by, for example,\nsupplying intelligence information on the whereabouts or activities of such an\nindividual could do serious and lasting harm to United States security and its\ninternational standing.\nIt will therefore be important in applying section 630 to interpret the terms\n\xe2\x80\x9ccooperation,\xe2\x80\x9d \xe2\x80\x9cassistance,\xe2\x80\x9d and \xe2\x80\x9csupport\xe2\x80\x9d in a way that is consistent with the\nunderstanding that the provision cannot constitutionally limit the President\xe2\x80\x99s\nexercise of his constitutional responsibilities. Properly understood, however, these\nterms should not unconstitutionally constrain the President. For example, in light\nof the President\xe2\x80\x99s exclusive constitutional responsibilities for the conduct of\ndiplomacy, we would not interpret the Executive Branch\xe2\x80\x99s participation in\nnegotiations concerning the ICC to constitute cooperation, assistance, or support.\nSimilarly, we do not believe the section 630 prohibition could constitutionally\nbe applied to the sharing of intelligence information with the ICC concerning an\nalleged terrorist who has been brought before the ICC. As Chief Executive and\nCommander in Chief, the President has independent authority to gather intelligence and to control access to national security information. The Supreme Court\nhas specifically recognized the President\xe2\x80\x99s constitutional authority to control the\ndisclosure of classified information:\nThe President . . . is the \xe2\x80\x9cCommander in Chief of the Army and\nNavy of the United States.\xe2\x80\x9d . . . His authority to classify and control\naccess to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and\nexists quite apart from any explicit congressional grant. . . . This\nCourt has recognized the Government\xe2\x80\x99s \xe2\x80\x9ccompelling interest\xe2\x80\x9d in\nwithholding national security information from unauthorized persons\nin the course of executive business. . . . The authority to protect such\ninformation falls on the President as head of the Executive Branch\nand as Commander in Chief.\nDep\xe2\x80\x99t of Navy v. Egan, 484 U.S. at 527. See also New York Times Co. v. United\nStates, 403 U.S. 713, 728-29 (1971) (Stewart, J., concurring) (\xe2\x80\x9cIf the Constitution\ngives the Executive a large degree of unshared power in the conduct of foreign\naffairs and the maintenance of our national defense, then under the Constitution\nthe Executive must have the largely unshared duty to determine and preserve the\n\n287\n\n227-329 VOL_25_PROOF.pdf 297\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ndegree of internal security necessary to exercise that power successfully.\xe2\x80\x9d).\nImplicit in the President\xe2\x80\x99s authority to gather such information and to control\naccess to it is the authority to disclose it to foreign nations or to international\nbodies if, in the exercise of his diplomatic responsibilities, he finds it proper to do\nso.\nThe President may well find it necessary or advisable in particular circumstances to disclose classified information to foreign nations or to international bodies in\norder to promote this nation\xe2\x80\x99s diplomatic objectives or to guard its interests and\nsecurity. Such disclosure is a legitimate\xe2\x80\x94and often, an unavoidable\xe2\x80\x94exercise of\nthe President\xe2\x80\x99s diplomatic and military responsibilities. For example, the President\nmay find it necessary to disclose to a foreign government classified information\nabout the identity or whereabouts of a foreign terrorist, or about the extent to\nwhich that government\xe2\x80\x99s security has been compromised by a third country\xe2\x80\x99s\nintelligence operations. Or the President may need to warn a potential enemy\nnation (even if the information disclosed is classified) about United States military\nplanning and capabilities, in order to deter that country from acts of aggression.\nJOHN C. YOO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n288\n\n227-329 VOL_25_PROOF.pdf 298\n\n10/22/12 11:10 AM\n\n\x0c'