b'Stay of Military Commission Proceedings\nWhile Review of Detentions Is Pending\nAlthough the meaning of the word \xe2\x80\x9cReview\xe2\x80\x9d in section 7 of Executive Order 13492 is not\nunambiguous, that section is best construed in light of the Order\xe2\x80\x99s text and purposes in\na manner that treats a review as pending as to a detainee at the Guant\xc3\xa1namo Bay Naval\nBase when the detainee\xe2\x80\x99s case has been referred to but not finally resolved by the process under the formal protocol that the Departments of Defense and Justice have\nagreed upon and promulgated for further disposition of the case.\nAugust 28, 2009\n\nMEMORANDUM OPINION FOR THE EXECUTIVE SECRETARY\nTASK FORCE ON DETENTION POLICY\nSection 7 of Executive Order 13492 (\xe2\x80\x9cReview and Disposition of Individuals Detained at the Guant\xc3\xa1namo Bay Naval Base and Closure of\nDetention Facilities\xe2\x80\x9d) (\xe2\x80\x9cExecutive Order\xe2\x80\x9d or \xe2\x80\x9cOrder\xe2\x80\x9d) directs the Secretary of Defense to\nimmediately take steps sufficient to ensure that during the pendency\nof the Review described in section 4 of this order, no charges are\nsworn, or referred to a military commission under the Military\nCommissions Act of 2006 and the Rules for Military Commissions,\nand that all proceedings of such military commissions to which\ncharges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.\n77 Fed. Reg. 4897, 4899 (Jan. 22, 2009).\nConsistent with this directive, on January 20, 2009, the Secretary of\nDefense ordered the Chief Prosecutor of the Office of Military Commissions to seek 120-day continuances in all pending Commissions cases in\nwhich charges had already been referred. Memorandum for the Convening\nAuthority for Military Commissions and the Chief Prosecutor, Office of\nMilitary Commissions, from Robert M. Gates, Secretary of Defense, Re:\nMilitary Commissions (Jan. 20, 2009) (\xe2\x80\x9cJan. 20 Order\xe2\x80\x9d). The prosecution\nmoved to continue all such cases as directed, and before the first set of\ncontinuances expired, the prosecution sought further continuances, which\nthe courts granted in May 2009. In that same Order on January 20, 2009,\n304\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nthe Secretary of Defense also ordered the Chief Prosecutor to cease\nswearing any further charges to the Convening Authority for Military\nCommissions, and ordered the Convening Authority not to refer any\nadditional cases to military commissions. Id. In compliance with the\nSecretary\xe2\x80\x99s orders, no Commissions charges have been sworn or referred\nsince that date. As of the current date, cases with referred charges pending\nagainst ten detainees are currently continued. 1 And with respect to the six\nother detainees against whom the Chief Prosecutor had sworn charges\nprior to January 20, 2009, the Convening Authority has not yet referred\nthem for trial. 2\nSection 4 of the Executive Order establishes the Review referenced in\nsection 7. Pursuant to section 4(c)(3), \xe2\x80\x9cDetermination of Prosecution,\xe2\x80\x9d the\nReview Participants have collectively \xe2\x80\x9cevaluated\xe2\x80\x9d the cases of a number\nof Guant\xc3\xa1namo detainees not approved for release or transfer, and have\ncollectively \xe2\x80\x9cdetermine[d]\xe2\x80\x9d that \xe2\x80\x9cthe Federal Government should seek to\nprosecute\xe2\x80\x9d approximately 35 such detainees, including nine of the ten\ndetainees against whom charges have been referred to military commissions, 3 and four of the six detainees against whom charges have been\nsworn but not yet referred. 4 Section 4(c)(3) also prescribes an evaluation\nof whether it is \xe2\x80\x9cfeasible\xe2\x80\x9d to prosecute such persons in an Article III\ncourt; accordingly, the Review Participants have determined that such\nArticle III prosecution is \xe2\x80\x9cfeasible\xe2\x80\x9d or \xe2\x80\x9cpotentially feasible\xe2\x80\x9d for each of\nthe roughly 35 detainees described above. The Participants then referred\neach of the cases to take what section 4(c)(3) calls any \xe2\x80\x9cnecessary and\nappropriate steps based on [their] determination[].\xe2\x80\x9d\nIn order to take such \xe2\x80\x9cnecessary and appropriate steps,\xe2\x80\x9d the Departments of Defense (\xe2\x80\x9cDOD\xe2\x80\x9d) and Justice (\xe2\x80\x9cDOJ\xe2\x80\x9d) have agreed upon and\nThose detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek\nBin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al\nHawsawi (the \xe2\x80\x9c9/11 defendants,\xe2\x80\x9d whose cases have been consolidated for trial), Omar\nAhmed Khadr, Almed Mohammed Ahmed Haza al Darbi, Ibrahim Ahmed Mahmoud al\nQosi, Mohammed Kamin, and Noor Uthman Muhammed.\n2 Those detainees are Obaiduullah, Fouad Mahmoud Hasan al-Rabia, Faiz Mohammed\nAhmed al-Kandari, Tarek Mahmoud El Sawah, Sufyian Barhoumi, and Ghassan Abdullah\nal Sharbi.\n3 The exception is Kamin.\n4 The exceptions are al-Rabia and al-Kandari.\n1\n\n305\n\n\x0c33 Op. O.L.C. 304 (2009)\n\npromulgated a formal protocol for further disposition of the cases. See\nDetermination of Guant\xc3\xa1namo Cases Referred for Prosecution (undated;\npromulgated by the Departments of Defense and Justice) (\xe2\x80\x9cProtocol\xe2\x80\x9d).\nPursuant to that Protocol, the cases in question have been assigned to a\n\xe2\x80\x9cteam\xe2\x80\x9d composed of Assistant U.S. Attorneys, attorneys from the National Security Division (\xe2\x80\x9cNSD\xe2\x80\x9d) of DOJ, and personnel from DOD, including prosecutors from the Office of Military Commissions. The Protocol\ndirects the team to recommend, based on factors articulated in the Protocol, whether, the case should be prosecuted in an Article III court (including in what venue), or in a \xe2\x80\x9creformed military commission.\xe2\x80\x9d If the team\nconcludes that prosecution \xe2\x80\x9cis not feasible in any forum, it may recommend that the case be returned to the Executive Order 13492 Review for\nother appropriate disposition.\xe2\x80\x9d After the team has made its recommendation, NSD and the participating DOD entities are to \xe2\x80\x9cjointly determine\nwhether the case is feasible for prosecution, and the appropriate forum\n(and, if necessary, venue) for that prosecution.\xe2\x80\x9d They are then to transmit\nthat determination to the Attorney General, along with any dissenting\nviews, and the Attorney General, in consultation with the Secretary of\nDefense, will then \xe2\x80\x9cmake the final decision as to the appropriate forum\nand (if necessary) venue for any prosecution.\xe2\x80\x9d\nAll but one (Ghailani) of the approximately 35 detainees referred by the\nReview Participants to the Justice Department are still undergoing the\nprocess established by the protocols. 5 We understand that this process\nlikely will not be completed, and final prosecutorial decisions will not be\nmade by the Attorney General, until at least some time in October.\nWith respect to those 35 or so detainees who are still being considered\nunder the Protocol, you have asked us whether the Secretary of Defense\nremains bound by the directive of section 7 that he \xe2\x80\x9ctake steps sufficient\nto ensure that during the pendency of the Review described in section 4 of\nthis order, no charges are sworn, or referred to a military commission . . . ,\nand that all proceedings of such military commissions to which charges\nhave been referred but in which no judgment has been rendered . . . are\nGhailani has been indicted in the Southern District of New York, and on May 29,\n2009, the Convening Authority withdrew all charges against him that had been referred\nto a military commission. See Memorandum of Susan J. Crawford, Convening Authority\nfor Military Commissions (May 29, 2009).\n5\n\n306\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nhalted.\xe2\x80\x9d Your inquiry concerns whether the \xe2\x80\x9cdeterminations\xe2\x80\x9d thus far\nmade by the Review Participants suffice to complete the Review described in section 4 for purposes of section 7, such that the Review is no\nlonger pending\xe2\x80\x94in which case the Secretary would be relieved of his\nlegal obligation to take steps to halt the proceedings and prevent new\ncharges from being sworn or referred to commissions.\nIn considering this issue, we sought the views of the drafters of the Protocol and received the views of the General Counsel of the Department of\nDefense. We also consulted with the Executive Director of the Task Force\nthat the Attorney General established to make the initial \xe2\x80\x9cdeterminations\xe2\x80\x9d\nunder section 4 regarding the way in which the Review has been operating. We now conclude that, although the meaning of the word \xe2\x80\x9cReview\xe2\x80\x9d\nreferred to in section 7 is not unambiguous, it is best construed in light of\nthe Order\xe2\x80\x99s text and purposes in a manner that treats it as pending as to a\ndetainee whose case has been referred to, but not finally resolved by, the\nProtocol process. Accordingly, we believe the section 7 obligation is best\nconstrued as remaining in effect during the pendency of the Protocol\nprocess.\nI.\nWe must first consider a threshold matter\xe2\x80\x94namely, whether the phrase\n\xe2\x80\x9cthe pendency of the Review\xe2\x80\x9d in section 7 refers to the Review of the\nentire population of Guant\xc3\xa1namo detainees, or merely to the Review of\nthe particular detainee in question. Section 4(a), entitled \xe2\x80\x9cScope and\nTiming of Review,\xe2\x80\x9d provides that \xe2\x80\x9c[a] Review of the status of each individual currently detained at Guant\xc3\xa1namo shall commence\xe2\x80\x9d (emphasis\nadded). Thus, the reference in section 7 to \xe2\x80\x9cthe Review described in\nsection 4\xe2\x80\x9d can be read to refer only to review of each individual detainee\nrather than review of all the Guant\xc3\xa1namo detainees. Such a reading,\nmoreover, would not be inconsistent with the purpose of the Order.\nOnce the Review of an individual detainee has been completed under\nsection 4, there is no obvious reason why it would be necessary to halt a\nmilitary commission proceeding against him so that reviews of other\ndetainees may be completed (including those who the Review Participants\nmay not even refer for possible prosecution). Thus, if an individual de-\n\n307\n\n\x0c33 Op. O.L.C. 304 (2009)\n\ntainee\xe2\x80\x99s Review under section 4 is no longer pending, the section 7 obligation on the Secretary is best read not to apply to that detainee.\nII.\nHaving addressed this threshold question, we must next tum to the\nquestion of whether, for purposes of section 7, \xe2\x80\x9cthe Review described in\nsection 4\xe2\x80\x9d is complete and therefore no longer pending with respect to any\nor all of the detainees the Review Participants have determined \xe2\x80\x9cthe Federal Government should seek to prosecute\xe2\x80\x9d and who are currently being\nprocessed under the Protocol. If such a determination necessarily completed the \xe2\x80\x9cReview\xe2\x80\x9d as to a detainee, then the Secretary of Defense would\nno longer be bound by section 7 to take steps sufficient to \xe2\x80\x9chalt\xe2\x80\x9d the\nmilitary commission proceedings or charges with respect to that detainee.\nConversely, if such a determination does not complete the \xe2\x80\x9cReview,\xe2\x80\x9d then\nthe Secretary would remain bound.\nIn answering this question, we begin with the text of the Executive\nOrder. We then consider how it has been implemented by the Review\nParticipants, and the underlying purposes that animate it.\nIn our view, the text of the Order supports the conclusion that the Review is still pending with respect to the roughly 35 detainees currently\nbeing treated under the Protocol, notwithstanding the fact that the Review\nParticipants appear to have fulfilled their obligation under section 4(c)(3)\nto evaluate their cases and determine whether \xe2\x80\x9cthe Federal Government\nshould seek to prosecute\xe2\x80\x9d them. When considered as a whole, section 4\ndescribes a review that comes to completion not upon the Participants\xe2\x80\x99\n\xe2\x80\x9cdetermination\xe2\x80\x9d of whether it is possible to transfer or release an individual consistent with the national security and foreign policy interests of the\nUnited States (section 4(c)(2)), or whether the federal government should\nseek to prosecute the individual (section 4(c)(3)), but instead upon the\n\xe2\x80\x9cachieve[ment]\xe2\x80\x9d of a detainee\xe2\x80\x99s \xe2\x80\x9cdisposition\xe2\x80\x9d (section 4(c)(4)). We base\nthis conclusion primarily on the text of section 4(c)(4), when read in light\nof the overall structure and purpose of the Order.\nWe begin with section 4(a). As noted above, that subsection provides\nthat a \xe2\x80\x9creview\xe2\x80\x9d shall commence immediately \xe2\x80\x9cof the status\xe2\x80\x9d of each\nindividual detainee. Section 4(b) comes next; it identifies the officials\nwho shall participate in the Review (\xe2\x80\x9cReview Participants\xe2\x80\x9d) and that the\n308\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nAttorney General shall coordinate it. Section 4(c) is titled \xe2\x80\x9cOperation of\nReview\xe2\x80\x9d; it sets forth in four numbered paragraphs the duties of the Review Participants and the actions that must be taken by certain officials,\nincluding Review Participants acting either collectively or individually,\nrelating to the status of individual detainees. Most importantly, section\n4(c)(2)\xe2\x80\x93(4) identifies certain determinations that must be made and certain\nactions that must be taken in consequence of those determinations as to\nindividual detainees; and those paragraphs set forth a sequence by which\nsuch determinations and actions are to occur.\nParagraphs (2) and (3) of section 4(c) require that a certain \xe2\x80\x9cdetermination\xe2\x80\x9d be made with respect to detainees. Then, in each paragraph, there is\na final directive instructing particular officials to take certain actions in\nlight of those determinations. Paragraph (2) of the subsection provides\nthat the \xe2\x80\x9cReview\xe2\x80\x9d shall make a determination \xe2\x80\x9cwhether it is possible to\ntransfer or release\xe2\x80\x9d a detainee. That paragraph then concludes with a\nsentence stating that the Secretaries of Defense and State, \xe2\x80\x9cand, as appropriate, other Review participants shall work to effect promptly the release\nor transfer of all individuals for whom release or transfer is possible.\xe2\x80\x9d\nSimilarly, paragraph (3) of the subsection provides that\nthe cases of individuals not approved for release or transfer shall be\nevaluated to determine whether the Federal Government should seek\nto prosecute the detained individuals for any offenses they may have\ncommitted; including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution.\nThe paragraph then concludes with a clause instructing the \xe2\x80\x9cReview\nparticipants\xe2\x80\x9d to \xe2\x80\x9cin turn take the necessary and appropriate steps based on\nsuch determinations.\xe2\x80\x9d\nAt issue here is whether the \xe2\x80\x9cReview described in section 4\xe2\x80\x9d remains\n\xe2\x80\x9cpending\xe2\x80\x9d during the actions of the Review Participants prescribed by\nthose final clauses\xe2\x80\x94i.e., working to effect release or transfer, and taking\n\xe2\x80\x9cnecessary and appropriate steps based on\xe2\x80\x9d the determination that the\ngovernment should seek to prosecute. The Department of Defense is of\nthe view that, although the \xe2\x80\x9cdeterminations\xe2\x80\x9d mandated in paragraphs (2)\nand (3) are part of \xe2\x80\x9cthe Review described in section 4,\xe2\x80\x9d the steps and\nactions required to be taken in response to, or based upon, those deter309\n\n\x0c33 Op. O.L.C. 304 (2009)\n\nminations fell outside the scope of that Review, and thus that the Review\nis not \xe2\x80\x9cpending\xe2\x80\x9d during those attempts to implement the determinations.\nIf this were correct, then the \xe2\x80\x9cReview described in section 4\xe2\x80\x9d would no\nlonger be pending as to an individua1detainee for purposes of section 7\nonce the determination has been made that transfer or release is possible\nor, alternatively, that prosecution should be sought\xe2\x80\x94regardless of whether additional implementing steps or actions based on the \xe2\x80\x9cdetermination\xe2\x80\x9d\nwere taken that might result in a more final settlement of the status of the\ndetainee.\nThis interpretation, however, would result in a potentially troubling\nanomaly, at least with respect to cases referred for possible prosecution.\nAs paragraph (3) itself reflects, the Executive Order is plainly concerned\nnot only with whether a detainee should be prosecuted but also with the\nforum in which he should be prosecuted\xe2\x80\x94i.e., whether in an Article III\ntribunal or in a military commission. Indeed, the paragraph expressly\ninstructs that the determination regarding prosecution shall include a\ndetermination regarding not only whether prosecution should be sought\nbut also whether prosecution in an Article III forum is \xe2\x80\x9cfeasible.\xe2\x80\x9d Furthermore, one of the findings in the Order (section 2(f)) provides that \xe2\x80\x9c[i]t\nis in the interests of the United States to review whether and how any\nsuch individuals can and should be prosecuted\xe2\x80\x9d (emphasis added). Yet\nunder the reading set forth above, military commission proceedings could\nresume, or new charges be sworn and referred, merely by virtue of a\ndetermination that \xe2\x80\x9cthe Federal Government should seek to prosecute\xe2\x80\x9d the\nindividual detainee, but before any decision on the forum in which such\nprosecution will transpire. It is not clear how that consequence, would\naccord with the Order\xe2\x80\x99s apparent purpose to halt military commission\nproceedings and charges until a review has been made with respect to\n\xe2\x80\x9cwhether and how\xe2\x80\x9d a detainee currently held at Guant\xc3\xa1namo will be\nprosecuted.\nWhether or not that anomaly, standing alone, would be enough to disfavor such an interpretation, the text of section 4(c)(4) of the Order\npoints strongly towards a contrary interpretation of whether the \xe2\x80\x9cReview\ndescribed in section 4\xe2\x80\x9d is pending during the actions that are taken to\nimplement the \xe2\x80\x9cdeterminations\xe2\x80\x9d in paragraphs (2) and (3). The principal\nsentence in paragraph (4) provides that \xe2\x80\x9c[w]ith respect to any individuals\ncurrently detained Guant\xc3\xa1namo whose disposition is not achieved under\n310\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nparagraphs (2) or (3) of this subsection, the Review shall select lawful\nmeans, consistent with the national security and foreign policy interests\nof the United States and the interests of justice, for the disposition of\nsuch individuals\xe2\x80\x9d (emphasis added). The reference here to the key actions in paragraphs (2) and (3) is not to any \xe2\x80\x9cdetermination\xe2\x80\x9d being made,\nbut, rather to a \xe2\x80\x9cdisposition\xe2\x80\x9d being \xe2\x80\x9cachieved.\xe2\x80\x9d The use of this distinct\nphrasing bespeaks a final resolution of how a detainee shall be treated\nbased on a determination, rather than the predicate determination itself,\nwhich does no more than refer a case to authorities with the legal power\nto effect the disposition. See, e.g., Black\xe2\x80\x99s Law Dictionary 505 (8th ed.\n2004) (defining \xe2\x80\x9cdisposition\xe2\x80\x9d to include \xe2\x80\x9ca final settlement or determination\xe2\x80\x9d). The use of the verb \xe2\x80\x9cachieved\xe2\x80\x9d is also telling. One \xe2\x80\x9cachieves\xe2\x80\x9d an\noutcome, whereas one makes (but does not \xe2\x80\x9cachieve\xe2\x80\x9d) a determination.\nMoreover, the plain language of the remainder of the relevant sentence in\nparagraph (4) also directly supports the conclusion that the Review\nremains pending\xe2\x80\x94because it specifically provides that the Review must\nselect \xe2\x80\x9clawful means, consistent with the national security and foreign\npolicy interests of the United States and the interests of justice, for the\ndisposition of such individuals\xe2\x80\x9d of the relevant officials are not able to\nachieve any of the relevant dispositions (i.e., transfer, release, or prosecution in one forum or the other).\nWe think these textual markers are significant. They support the conclusion that the \xe2\x80\x9cReview described in section 4\xe2\x80\x9d is pending as to a detainee unless a \xe2\x80\x9cdisposition\xe2\x80\x9d has been \xe2\x80\x9cachieved\xe2\x80\x9d for that detainee under one\nof paragraphs (2), (3), or (4). Manifestly, no such disposition has been\nachieved under any of those paragraphs with respect to the 35 detainees in\nquestion here. Those detainees have at most been determined to be individuals the federal government should seek to prosecute. But a determination that their case should be referred for consideration by prosecutors is\nnot the achievement of a \xe2\x80\x9cdisposition . . . under paragraph[] (3).\xe2\x80\x9d At least\nuntil there is a final judgment to prosecute\xe2\x80\x94something that occurs at the\nearliest upon the completion of the Protocol process when, by its terms,\nthe Attorney General makes a \xe2\x80\x9cfinal\xe2\x80\x9d decision regarding prosecution and\nforum\xe2\x80\x94no \xe2\x80\x9cdisposition\xe2\x80\x9d has been \xe2\x80\x9cachieved . . . under paragraph (3).\xe2\x80\x9d\nAnd if the decision is ultimately made not to prosecute a detainee (or, in\nparagraph (2), if transfer of a detainee proves impossible), the Review\nmust then select other lawful means \xe2\x80\x9cfor the disposition of such individu311\n\n\x0c33 Op. O.L.C. 304 (2009)\n\nals\xe2\x80\x9d\xe2\x80\x94thus confirming that the Review remains pending until such a\ndisposition is achieved.\nTo be clear, although the word \xe2\x80\x9cdisposition,\xe2\x80\x9d consistent with the dictionary definition, connotes a \xe2\x80\x9cfinal\xe2\x80\x9d settlement of a matter, we would\nnot read paragraph (4) to suggest that the Review is pending so long as it\nis not yet known whether the detainee will be convicted in a particular\ntribunal or released from law-of-war detention at the end of an armed\nconflict. Such a reading would, among other things, effectively preclude\nthe option of using military commissions altogether, because section 7\xe2\x80\x99s\nobligation to ensure a \xe2\x80\x9chalt\xe2\x80\x9d to commission proceedings would remain\nbinding on the Secretary while an ultimate \xe2\x80\x9cdisposition\xe2\x80\x9d under section\n4(c)(4) remained open. This outcome is something the Order plainly does\nnot intend. Instead, we read \xe2\x80\x9cachieve[ment]\xe2\x80\x9d of a "disposition\xe2\x80\x9d to mean,\nat the very least, a treatment of the detainee by the Executive Branch that\nis distinct from the mere referral of the case to prosecutors upon determination that the federal government \xe2\x80\x9cshould seek\xe2\x80\x9d to prosecute\xe2\x80\x94for example, the Attorney General\xe2\x80\x99s decision, at the end of the Protocol, to try the\ncase in a particular forum, or the actual charging of the individual. This\nconclusion comports with the title of paragraph (3), which refers to \xe2\x80\x9cProsecution\xe2\x80\x9d and not \xe2\x80\x9cConviction.\xe2\x80\x9d It is also consistent, if not compelled by,\nthe reference in section 4(a) to the need for a review of the \xe2\x80\x9cstatus\xe2\x80\x9d of\neach individual detainee. The individual\xe2\x80\x99s status with respect to prosecution, may be understood to be \xe2\x80\x9cfinally settled\xe2\x80\x9d for purposes of the Order\nupon a final decision regarding whether and how he will be prosecuted.\nOn this understanding, \xe2\x80\x9cthe prosecution\xe2\x80\x9d disposition is not achieved at\nleast until the Protocol process runs its course. Because that has not yet\noccurred as to all but one of the detainees the Review Participants have\nreferred for possible prosecution, however, we need not decide here\nprecisely whether it is at that point or upon the filing of charges that, in\nfact, a \xe2\x80\x9cdisposition\xe2\x80\x9d under paragraph (3) will have been \xe2\x80\x9cachieved\xe2\x80\x9d for\npurposes of paragraph (4). We also do not consider here the precise time\nat which there is a \xe2\x80\x9cdisposition\xe2\x80\x9d in a case that the Review Participants\nrefer directly to the Office of Military Commission, after having deemed\nthat it was not feasible for Article III prosecution but nevertheless a case\nthe federal government \xe2\x80\x9cshould seek to prosecute.\xe2\x80\x9d\nIn sum, the mere determination that the government should seek to\nprosecute a detainee, and the referral of the case for consideration by the\n312\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nDepartment of Justice pursuant to the Protocol, does not \xe2\x80\x9cachieve\xe2\x80\x9d a\n\xe2\x80\x9cdisposition.\xe2\x80\x9d It simply triggers a new process under the Protocol by\nwhich a disposition\xe2\x80\x94such as the filing of charges or at least the rendering\nof a final determination by the Attorney General that charges should be\nfiled\xe2\x80\x94might be \xe2\x80\x9cachieved.\xe2\x80\x9d And until such a disposition, the Review\nremains pending. The Review described in section 4 accordingly is best\nunderstood as a process that encompasses the entirety of the functions set\nforth in section 4(c) for achieving a disposition of a detainee, and the\nReview comes to an end only once the full sequence of determinations\nand actions set forth in section 4(c) has run its course. For that to occur,\nunder the plain terms of paragraph (4), either a disposition must have been\nachieved pursuant to either paragraphs (2) or (3)\xe2\x80\x94in which case there is\nnothing left for the Review to do\xe2\x80\x94or, failing that, the Review must then\nselect some other lawful disposition. Only if a disposition has been\nachieved pursuant to one of those paragraphs will the Review described in\nsection 4 have been completed. Thus, as the heading of section 4(c) indicates, all of the functions described in that subsection, including the steps\ntaken to transform determinations into a disposition, constitute the \xe2\x80\x9cOperation of the Review.\xe2\x80\x9d 6\nThis interpretation of the Order\xe2\x80\x99s text is consistent with the practice of\nthe Review Participants under the Order. We have been informed that the\nProtocol process described above has not been uniformly understood as\npart of the \xe2\x80\x9cdetermination\xe2\x80\x9d process described in section 4(c)(3). Rather,\nwe have been informed that at least some Participants apparently have\nunderstood the Protocol process as constituting all or part of the \xe2\x80\x9cnecessary and appropriate steps based on such determinations\xe2\x80\x9d that paragraph\nWe do not believe the use of the word \xe2\x80\x9cstatus\xe2\x80\x9d in section 4(a)\xe2\x80\x99s reference to a \xe2\x80\x9creview of the status of each individual currently detained at Guant\xc3\xa1namo\xe2\x80\x9d is to the contrary.\nWhile that word could refer to the manner in which the Review Participants determine the\nindividual can or should be treated, it is just as naturally read to mean the manner in\nwhich the Executive Branch in fact treats the detainee. For the reasons given above, we\nwould read the final settlement of the \xe2\x80\x9cstatus\xe2\x80\x9d to be the \xe2\x80\x9cdisposition\xe2\x80\x9d referenced in\nparagraph (4) and referred to at other points in the Order, rather than the mere determination\xe2\x80\x9d referenced in paragraph (3). Moreover, even if \xe2\x80\x9cstatus\xe2\x80\x9d were construed to have\nthe \xe2\x80\x9cdetermination\xe2\x80\x9d meaning implicit in DOD\xe2\x80\x99s interpretation, it still would not necessarily follow that the Review is no longer pending once such a determination is made because, as paragraph (4) expressly contemplates, the Review will still be operative in the\nevent no disposition is achieved.\n6\n\n313\n\n\x0c33 Op. O.L.C. 304 (2009)\n\n(3) describes. But, even if that were correct, it would not mean \xe2\x80\x9cthe Review described in section 4\xe2\x80\x9d ends for purposes of section 7 once the\nprosecution determination has been made by the Review Participants.\nRather, as explained above, the Review in section 4 remains pending until\na \xe2\x80\x9ca disposition\xe2\x80\x9d is \xe2\x80\x9cachieved\xe2\x80\x9d under paragraphs (2), (3) or (4). Quite\nclearly, no disposition\xe2\x80\x94no final settlement or decision of how the government will in fact treat the detainee\xe2\x80\x94is achieved under paragraph (3)\nuntil, at the very least, a decision to prosecute in a particular forum is\nmade on the basis of the Review Participants\xe2\x80\x99 prosecution referral. Indeed, the Review Participants, collectively\xe2\x80\x94i.e., the Task Force and\nReview Panel that the Attorney General established\xe2\x80\x94have no authority to\neffectuate such a final disposition with respect to prosecution, an authority vested in the Attorney General (with respect to Article III prosecution)\nand in particular DOD officials (with respect to military commissions).\nAnd the Protocol itself reflects just this understanding. Its first sentence\nreads: \xe2\x80\x9cThis protocol governs disposition of cases referred for possible\nprosecution pursuant to Section 4(c)(3) of Executive Order 13492, which\napplies to detainees held at Guant\xc3\xa1namo Bay, Cuba.\xe2\x80\x9d Protocol at 1 (emphasis added).\nFurthermore, this interpretation is consistent with the purposes of the\nOrder, as reflected in its other provisions. The Order makes clear in section 2(b) that the \xe2\x80\x9cprompt and appropriate disposition of the individuals\ncurrently detained at Guant\xc3\xa1namo and closure of the facilities in which\nthey are detained would further the national security and foreign policy\ninterest of the United States and the interests of justice.\xe2\x80\x9d Plainly, \xe2\x80\x9cdisposition\xe2\x80\x9d in this usage connotes a final decision as to how the government will\ntreat the detainees, and not a mere determination that \xe2\x80\x9cit is possible to\ntransfer or release a detainee,\xe2\x80\x9d or \xe2\x80\x9cthe Federal Government should seek to\nprosecute the detained individuals,\xe2\x80\x9d or that \xe2\x80\x9cit is feasible to prosecute\nsuch individuals before a court established pursuant to Article III.\xe2\x80\x9d Consistent with this conclusion, the final sentence of section 2(b) reads: \xe2\x80\x9cTo\nthe extent practicable, the prompt and appropriate disposition of the\nindividuals detained at Guant\xc3\xa1namo should precede the closure of the\ndetention facilities at Guant\xc3\xa1namo.\xe2\x80\x9d The constraint of practicability\nmakes more sense with respect to the achievement of a final outcome\xe2\x80\x94\nsuch as the actual transfer or filing of charges\xe2\x80\x94than the mere making of a\ndetermination that remains to be implemented.\n314\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\nMore generally, there is a basic logic to the idea, discussed above, that\nthe military commission proceedings should be halted, and no charges\nsworn or referred, during the pendency of a process by which the final\njudgment as whether and how a detainee should be prosecuted is being\nmade. This is consistent with the understanding of the Secretary of Defense when, in accord with the obligation that section 7 imposes, he first\nordered a halt to commission proceedings and charges on January 20: He\nwrote that \xe2\x80\x9c[t]his is to provide the Administration sufficient time to conduct a review of detainees currently held at Guant\xc3\xa1namo, to evaluate the\ncases of detainees not approved for release or transfer to determine\nwhether prosecution may be warranted for any offenses these detainees\nmay have committed, and to determine which forum best suits any future\nprosecutions.\xe2\x80\x9d Jan. 20 Order (emphasis added).\nThe reading of the text set forth above aligns the Order with precisely\nthis logical outcome: It treats the section 4 Review to which section 7\nrefers as a process that is completed upon the achievement of a final\ndisposition of a detainee \xe2\x80\x94whether (i) through transfer or release pursuant\nto the efforts of the Secretaries of Defense and State in working to effect\nthe Review Participants\xe2\x80\x99 determination that release or transfer is possible;\n(ii) through a final decision to prosecute pursuant to the necessary and\nappropriate steps taken by the relevant authorities based on determinations by the Participants that the federal government should seek to prosecute the detainee; or (iii) if neither a transfer or prosecution disposition is\nachieved, through some other lawful disposition selected by the Review\nParticipants under paragraph (4) and then promptly implemented by the\nappropriate authorities.\nThe alternative interpretation of the Order that DOD offers focuses on\nsection 4(c)(3) and does not account for the fact that section 7 refers more\ngenerally to \xe2\x80\x9cthe Review described in section 4,\xe2\x80\x9d making no special\nreference to any of its subsections. The DOD interpretation does not\naccount as well as the one offered above for the language of section\n4(c)(4). Accordingly, we think the interpretation we offer above is the\nstronger and more logical reading of the Order, and is also more consistent with the Order\xe2\x80\x99s (and section 7\xe2\x80\x99s) manifest design.\n\n315\n\n\x0c33 Op. O.L.C. 304 (2009)\n\nIII.\nAlthough this is the better reading of the Order, however, we are not\nprepared to say that it is the only possible reading, such that it would be\nimpermissible for the President to interpret his own executive order in\naccord with the alternative interpretation. See Utah Ass\xe2\x80\x99n of Counties v.\nBush, 316 F. Supp. 2d 1172, 1196 (D. Utah 2004) (\xe2\x80\x9ccourts will generally\ngive substantial deference to the President\xe2\x80\x99s . . . interpretation and use of\nan executive order\xe2\x80\x9d), appeal dismissed, 455 F.3d 1094 (10th Cir. 2006)\n(for lack of standing); cf. Thomas Jefferson Univ. v. Shalala, 512 U.S.\n504, 512 (1994) (where agency\xe2\x80\x99s interpretation of its own regulation is\nreasonable, it is entitled to substantial judicial deference); Federal Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (agency interpretation of its own regulations should be accepted, unless it is \xe2\x80\x9c\xe2\x80\x98plainly erroneous or inconsistent with the regulation\xe2\x80\x99\xe2\x80\x9d) (quoting Auer v. Robbins, 519\nU.S. 452, 461 (1997)). The phrase \xe2\x80\x9cthe Review described in section 4\xe2\x80\x9d is\nnot unambiguous. One might read the word \xe2\x80\x9cReview\xe2\x80\x9d in section 7 to refer\nto something less than all of the steps and actions\xe2\x80\x94the \xe2\x80\x9coperation of the\nReview\xe2\x80\x9d\xe2\x80\x94prescribed in section 4(c) and, in particular, to refer only to\nthose actions that pertain to determinations of how the government can or\nshould treat the detainees, and the actions taken based on such a determination would not be part of the \xe2\x80\x9cReview\xe2\x80\x9d itself. To be sure, even on this\nreading, section 4(c)(4) expressly contemplates that there could be further\naction by the \xe2\x80\x9cReview\xe2\x80\x9d in the event no disposition were achieved. But, it\nmight be argued, in that case the Review is not \xe2\x80\x9cpending\xe2\x80\x9d during the\nattempted implementation of the determinations (e.g., while the Protocol\nprocess is underway); it is instead dormant, and would become pending\nonce more only if and when no disposition is achieved in a particular\ncase.\nBut although we cannot say that the Order clearly precludes this alternative reading, we do believe the Order is better read to deem the \xe2\x80\x9cReview\xe2\x80\x9d pending for purposes of section 7 until a disposition of transfer or\nrelease under paragraph (2) of section 4(c), regarding prosecution in a\nparticular forum under paragraph (3), or regarding some other lawful\ndisposition under paragraph (4), is achieved. Such a reading avoids the\nseemingly anomalous result described above\xe2\x80\x94a result in tension with\nthe Order\xe2\x80\x99s apparent design to halt military commission proceedings and\n316\n\n\x0cStay of Military Commission Proceedings While Review of Detentions Is Pending\n\ncharges until a decision is made to actually go forward with a military\ncommission prosecution. It also fits comfortably with the text of the\nOrder, including the heading of section 4(c), \xe2\x80\x9cOperation of Review,\xe2\x80\x9d\nwhich presumably describes all of the actions set forth in that subsection,\nincluding the implementation of the determinations until a \xe2\x80\x9cdisposition\xe2\x80\x9d is\n\xe2\x80\x9cachieved.\xe2\x80\x9d\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n317\n\n\x0c'


b"Federal Reserve Board Policy on Bank Examiner Borrowing\nThe Federal Reserve Board may change its adm inistrative policy relating to borrow ing by bank\nexam iners, to allow bank exam iners to borrow or hold credit cards from lending institutions\naffiliated with banks o r bank holding com panies which they are authorized to exam ine. The change\nproposed would not result in a violation of 18 U .S .C . \xc2\xa7\xc2\xa7 212 and 213.\n\nAugust 25, 1982\nMEMORANDUM OPINION FOR THE SECRETARY OF THE BOARD,\nFEDERAL RESERVE BOARD\nThis responds to your request for our views on a proposed change in Federal\nReserve Board policy pertaining to bank examiner borrowing. The proposed\nchange would permit bank examiners employed by the Board to borrow or hold\ncredit cards from lending institutions affiliated with banks or bank holding\ncompanies which they are authorized to examine. Your question is whether such a\npolicy change can be accomplished consistent with the conflict of interest laws\nrelating to bank examiner borrowing. We conclude that it can.\nAt issue is the scope of the prohibition contained in 18 U.S.C. \xc2\xa7\xc2\xa7 212 and 213.\nSection 212 prohibits an officer, director, or employee of a bank which is a\nmember of the Federal Reserve System or insured by the Federal Deposit\nInsurance Corporation (FDIC) from making a loan to an examiner who \xe2\x80\x9cexam\xc2\xad\nines or has authority to examine\xe2\x80\x9d the bank. Section 213 complements \xc2\xa7 212 by\nprohibiting a bank examiner from accepting a loan from \xe2\x80\x9cany bank, corporation,\nassociation or organization examined by him or from any person connected\nherewith . . . .\xe2\x80\x9d'\n1 Sections 212 and 213 provide in relevant part as follows.\n\xc2\xa7 212. Offer c f loan or gratuity to bank examiner\nWhoever, being an officer, director or employee of a bank which is a member of the Federal\nReserve System or the deposits of which are insured by the Federal Deposit Insurance Corporation,\nor of any National Agricultural Credit Corporation, or of any land bank. Federal land bank\nassociation or other institution subject to examination by a farm credit examiner, or of any small\nbusiness investment company, makes or grants any loan or gratuity, to any examiner or assistant\nexaminer who examines or has authority to examine such bank, corporation, or institution, shall be\nfined . . or imprisoned . . or both . .\n\xc2\xa7 213. Acceptance c f loan or gratuity by bank examiner\nWhoever, being an examiner or assistant examiner of member banks of the Federal Reserve\nSystem or banks the deposits of which are insured by the Federal Deposit Insurance Corporation, or a\nfarm credit examiner or examiner of National Agricultural Credit Corporations, or an examiner of\nsmall business investment companies, accepts a loan or gratuity from any bank, corporation,\nassociation or organization examined by him or from any person connected herewith, shall be fined\n. . or imprisoned . . or both . . .\n\n509\n\n\x0cThe rule against examiner borrowing contained in \xc2\xa7\xc2\xa7 212 and 213 was first\npromulgated as \xc2\xa7 22 of the Federal Reserve Act of 1913, 38 Stat. 272, and was\nintended to \xe2\x80\x9cproscribe certain financial transactions which could lead to a bank\nexaminer carrying out his duties with less than total, unbiased objectivity.\xe2\x80\x9d\nUnited States v. Bristol, 473 F.2d 439, 442 (5th Cir. 1973). See also H.R. Rep.\nNo. 69, 63d Cong., 1st Sess. (1913). As a conflict of interest rule, it has been\ninterpreted by the major federal agencies responsible for bank examination to\nprohibit a ll credit transactions between banks and the federal officials who have\nauthority to examine their affairs, whether or not they are corrupt.2 There is no\nprovision in the statute or its legislative history which evinces an intent to exempt\nany particular kind of credit relationship, and the rule against examiner borrow\xc2\xad\ning in \xc2\xa7\xc2\xa7 212 and 213 has been applied to prohibit credit effected through credit\ncards, as well as direct loans.\nPrior to 1979, bank examiners employed by the Federal Reserve Board were\nforbidden by Board policy to borrow or obtain credit from any bank which the\nBoard was authorized by law to examine, including all member banks and their\naffiliates. See 12 U .S.C . \xc2\xa7\xc2\xa7 248(a), 325, 338, and 483. In that year, however,\nrecognizing the severe restrictions this policy placed on its examiners\xe2\x80\x99 ability to\nobtain ordinary credit, the Board limited the authority of its examination person\xc2\xad\nnel to state member banks, bank holding companies, and their non-bank affili\xc2\xad\nates. Primary federal authority for examining national banks and state non\xc2\xad\nmember banks affiliated with member banks was ceded to the Comptroller of the\nCurrency and the FDIC, respectively, and Federal Reserve examiners were left\nwith no authority to audit such banks until and unless it was specifically granted\non an a d hoc basis by the Board. As a result, since 1979 Federal Reserve\nexaminers have been permitted to borrow and hold credit cards from national and\nstate nonmember banks.3\nUnder the Federal Reserve Board\xe2\x80\x99s 1979 policy on borrowing, bank examiners\nemployed by the Board could obtain credit from national banks and state\nnonmember banks even if those banks were \xe2\x80\x9caffiliated\xe2\x80\x9d with state member banks\nand holding companies which Federal Reserve examiners were authorized to\naudit.4 However, in this event, the examiner was not permitted to participate in the\n2 See, e.g , 12 C.F.R. \xc2\xa7 336.735-1 l(b)(5)(i) (1981) (FDIC examiners may not accept any extension of credit\nfrom insured banks they examine); Administrative Circular 53 (Revised) supplementing 31 C.F.R. \xc2\xa7 0 735\n(Comptroller o f the Currency examiners may not accept loan or extension of credit of any kind from national banks);\nFederal Reserve Board Ethics Manual, Fart D (examiners of Federal Reserve Board may not borrow from or hold\ncredit cards issued by banks they are authorized to examine)\n3 This change in Federal Reserve Board policy was approved as an interpretation of 18 U.S C. \xc2\xa7\xc2\xa7 212 and 213 by\nthe Criminal Division o f this Department See letter of Feb. 7 ,1 9 7 9 to Mr. J. Charles Partee, M ember of the Board of\nGovernors o f the Federal Reserve. Several years earlier, the FDIC had taken similar steps to limit the authonty of its\nexamination personnel to enable them to borrow from national banks and state member banks, also with the\nCriminal Division's approval. See letter of June 27, 1973 to Mr. Frank Wille, Chairman, FDIC. Because bank\nexaminers employed by the Comptroller of the Currency have statutory authority to examine only national banks and\ntheir affiliates, see 1 2 U .S C. \xc2\xa7 4 8 t,th ey have never been subject to the same constraints on their ability to obtain\ncredit as have the examiners o f the Federal Reserve and FDIC\n4 As defined in applicable statutory provisions, a bank \xe2\x80\x9caffiliate\xe2\x80\x9d includes any corporation, business trust, or\nassociation (1) of which a bank owns or controls a majority of the voting shares; (2) of which control is held, directly\nor indirectly, by the shareholders of the bank; (3) a majority of whose directors are also directors of the bank; or (4)\nwhich owns o r controls, directly o r indirectly, a majority o f the shares of capital stock of the bank. See 12 U.S C.\n\xc2\xa7 221a(b). See also 12 U .S .C \xc2\xa7\xc2\xa7 371c and 1828(j) An \xe2\x80\x9caffiliate\xe2\x80\x9d of a bank thus includes the holding company of\nwhich the bank is a subsidiary, and any other subsidiary of that holding company\n\n510\n\n\x0cexamination of the affiliated bank or holding company. With this restriction, the\nBoard sought to ensure that none of its examiners would be involved in a credit\nrelationship with an affiliate of an institution he was actually responsible for\nexamining.5 The change which the Board now proposes to make in its policy\nwould remove this restriction to permit one of its examiners to audit a state\nmember bank or holding company notwithstanding any current credit rela\xc2\xad\ntionship he may have with an affiliate of that bank or holding company.\nIn 1980, advising with respect to a substantially similar change proposed by\nthe FDIC, this Office took the position that \xc2\xa7 213 does not prevent a bank\nexaminer from accepting a loan from an institution affiliated with a bank which\nhe examines, so long as the loan is not approved by a \xe2\x80\x9cperson connected with\xe2\x80\x9d the\nlatter institution.6 Our review of the legislative history of \xc2\xa7 213 indicated that\nCongress intended to do no more than bar a bank examiner from accepting a loan\nfrom a bank, or an individual connected with a bank he was responsible for\nexamining; its prohibition was not intended to extend to loans from affiliated\ninstitutions however tenuous their relationship with the bank subject to examina\xc2\xad\ntion. We have reexamined that position, and we believe it to be the correct\ninterpretation of \xc2\xa7 213. Accordingly, we do not believe that \xc2\xa7 213 poses an\nobstacle to the policy change now proposed by the Federal Reserve, which would\nbring its policy on examiner borrowing into line with that of the FDIC.7 And,\nwhile our earlier opinion focused on \xc2\xa7 213, we reach the same conclusion with\nrespect to the complementary provisions of \xc2\xa7 212. Section 212 prohibits loans by\n\xe2\x80\x9can officer, director or employee of a bank\xe2\x80\x9d to an examiner who \xe2\x80\x9chas authority to\nexamine such bank.\xe2\x80\x9d The gravamen of the offense covered by \xc2\xa7 212, like that\ncovered by \xc2\xa7 213, is the approval of credit for a bank examiner by a person\nconnected with the same bank which the examiner has authority to audit. If bank\nofficials of the lending institution are not also \xe2\x80\x9cofficers, directors, or employees\xe2\x80\x9d\nof the bank or holding company subject to the examiner\xe2\x80\x99s audit authority, there is\nno opportunity for the conflict of interest sought to be avoided by \xc2\xa7\xc2\xa7 212 and 213\nto arise.8\nRo b e r t B . S h a n k s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n5 Attempting to achieve the same end by a different route, the analogous FDIC policy approved by the Criminal\nDivision in 1973 provided that FDIC examiners could not borrow from an affiliate of a bank within the ambit of their\nexamination authority\n6 See July 10,1980, M emorandum for the Executive Secretary, FDIC, \xe2\x80\x9cProposed Amendments to Regulations of\nFederal Deposit Insurance Corporation (FDIC) Relating to Bank Loans to Exam iners/'\n7 See also Administrative Circular 53 (Revised), supplementing 31 C.F.R. \xc2\xa7 0.735, which articulates a substan\xc2\xad\ntially similar credit policy for examiners employed by the Comptroller of the Currency\n8 We do not suggest that \xc2\xa7\xc2\xa7 2 1 2 and 213 would permit an examiner to borrow or accept credit from an affiliate in a\ncase where the relationship between the institution being examined and the affiliated lending institution is such as to\nsuggest common control, or where the two entities have a common majority of officers or directors. In such a case, a\nloan from an affiliate might be tantamount to a loan from the bank being examined, thus giving rise to the very\nconflict of interest which \xc2\xa7 \xc2\xa7 2 1 2 and 213 were intended to prevent. We understand from discussions with members\nof your staff that the structure o f the banking industry is such as lo make this eventuality highly unlikely Cf. United\nStates v. Bristol, supra, in which the court held that a bank officer\xe2\x80\x99s loan to an examiner violated \xc2\xa7 \xc2\xa7 2 1 2 and 213\neven though it was funneled through an entity which the examiner had no authonty to examine.\n\n511\n\n\x0c"


b'Litigating Authority o f the Interstate Commerce Commission\nT he Interstate C om m erce Com m ission lacks authority to intervene in the court o f appeals in litiga\xc2\xad\ntion betw een a railroad and its em ployees under the R ailw ay L abor Act, or to file an am icus brief\nin the case, w ithout the approval o f the A ttorney G eneral.\nT he In terstate C om m erce Com m ission also lacks authority to file a petition for certiorari, absent au\xc2\xad\nthorization from the Solicitor General.\n\nJune 10, 1988\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nS o l ic it o r G e n e r a l\n\nYou have asked for the opinion of this Office on several issues relating to the\nlitigating authority of the Interstate Commerce Commission (\xe2\x80\x9cICC\xe2\x80\x9d). You wish\nto know whether the ICC had authority to intervene in the court of appeals in\nPittsburgh & Lake Erie R.R. v. Railway Labor Executives Ass\xe2\x80\x99n, No. 87-1589\n(S. Ct.)* without the Department\xe2\x80\x99s approval, and whether the ICC was authorized\nto file an amicus brief in an earlier phase of this case, also in the court of appeals.\nA related issue arises from the IC C \xe2\x80\x99s assertion of authority to file a petition for\ncertiorari in the Supreme Court in this case, independent of and without the ap\xc2\xad\nproval of the Department of Justice.\nFor reasons set forth more fully below, we believe that the ICC had no au\xc2\xad\nthority to intervene in the court of appeals in this case independent of the De\xc2\xad\npartment o f Justice, or to file an amicus brief. Under the circumstances of this\ncase, the only means properly available to the ICC for making its views known\nin the court of appeals was through an appearance by the Attorney General. More\xc2\xad\nover, the ICC has no authority in this case, absent authorization from the Solic\xc2\xad\nitor General, to file a petition for a writ of certiorari, or to make an appearance\nin any form, in the Supreme Court.\nBackground\nThe facts and legal issues involved in this litigation are described in detail in\nthe two decisions of the Third Circuit. See Railway Labor Executives Ass\xe2\x80\x99n v.\nPittsburgh & Lake Erie R.R., 831 F.2d 1231 (3d Cir. 1987); 845 F.2d 420 (3d\nCir. 1988). Briefly, it involves a dispute over whether a railroad has an obliga\xc2\xad\ntion under the Railway Labor Act (\xe2\x80\x9cRLA\xe2\x80\x9d) to bargain with its employees over\nthe effect of a sale of rail assets, where the sale has been approved by the ICC\n* A fter this opinion was written, the Supreme Court granted certiorari, 488 U.S 965 (1988), and thereafter va\xc2\xad\ncated the judgm ent, 491 U.S. 490 (1989).\n\n110\n\n\x0cunder the Interstate Commerce Act (\xe2\x80\x9cICA\xe2\x80\x9d). The rail unions take the position,\nwith which the court of appeals agreed, that the railroad must comply with the\ncollective bargaining requirements of the RLA in connection with the proposed\nsale, even if, as a practical matter, compliance with those requirements will de\xc2\xad\nlay and may even frustrate the sale entirely. The railroad, supported by the ICC,\nargues that the ICC has plenary and exclusive jurisdiction over all aspects of the\nsale, and that the provisions of other laws must give way to the extent necessary\nto consummate it. The ICC\xe2\x80\x99s position is that the ICA preempts the Norris-LaGuardia Act and the collective bargaining provisions of the RLA. The facts of\nthe case are these. In the summer of 1987 , Pittsburgh & Lake Erie R.R. (\xe2\x80\x9cP &\nLE\xe2\x80\x9d) entered into an agreement to sell its rail assets to Railco, a newly formed\nnon-carrier subsidiary of the Chicago West Pullman Corporation. Informed of\nthe proposed sale, P & LE\xe2\x80\x99s unions demanded that the railroad bargain over its\neffect on the railroad\xe2\x80\x99s employees, pursuant to the requirements of the RLA.\nP & LE refused, and the Railway Labor Executives Association (\xe2\x80\x9cRLEA\xe2\x80\x9d) filed\nsuit in district court to enforce the employees\xe2\x80\x99 bargaining rights under the RLA.1\nSeveral weeks later, on September 15, 1987 , P & L E \xe2\x80\x99s employees went on strike.\nOn September 19, Railco filed a \xe2\x80\x9cnotice of exemption\xe2\x80\x9d with the ICC, seeking an\nexemption from the otherwise applicable requirement of ICC approval for the sale.\nThe ICC validated the effectiveness of the acquisition by denying RLEA \xe2\x80\x99s request\nto refuse or stay the exemption. The sale became effective on September 26.2 In\nthe meantime, P & LE had asked the district court to enjoin its employees\xe2\x80\x99 strike,\non grounds that it was an illegal attempt to interfere with the ICC\xe2\x80\x99s exclusive ju\xc2\xad\nrisdiction over the sale. In the wake of the ICC\xe2\x80\x99s refusal to stay its exemption, the\ndistrict court issued an injunction, on the grounds advanced by P & LE. The Third\nCircuit summarily reversed, holding that section 4 of the Norris-LaGuardia Act\ndeprived the district court of jurisdiction to issue the injunction. It remanded for a\ndetermination whether the ICA operated to relieve P & LE of its obligation to com\xc2\xad\nply with the RLA bargaining procedures (\xe2\x80\x9cP & LE-F). P & LE sought certiorari in\nMarch of this year. On remand, the district court held that P & LE was obligated to\nbargain, and the Third Circuit affirmed (\xe2\x80\x9cP & LE-II\xe2\x80\x9d). P & LE filed a second peti\xc2\xad\ntion for certiorari on May 17, 1988.\n1 RLEA sought a declaration that the provisions o f the RLA were applicable to this transaction, a declaration\nthat the sale could not be consummated until all RLA dispute resolution procedures had been exhausted, and an in\xc2\xad\njunction prohibiting P & LE from completing the transaction until that time. See 831 F.2d at 1233.\n2 The Railroad Revitalization and Regulatory Reform Act o f 1976, Pub L. No. 94-210, 90 Stat. 31, and the\nStaggers Rail Act o f 1980, Pub. L. No. 96-448, 94 Stat 1895, reduced the amount o f federal involvement in rail\nmergers and acquisitions, in an effort to implement a congressional policy favoring expedited approval o f sales o f\nrailroads, particularly those that are failing. See H.R. Conf. Rep No. 1430, 96th Cong., 2d Sess (1980). It broad\xc2\xad\nened the power o f the ICC to approve various transactions, including acquisitions, involving rail carriers. When an\nacquisition involves two existing rail carriers, the ICC must impose certain labor protective conditions. 49 U.S.C.\n\xc2\xa7 11347 However, where a rail carrier\xe2\x80\x99s assets are being acquired by a non-carrier, the imposition of labor pro\xc2\xad\ntective provisions is discretionary See 49 U.S C. \xc2\xa7 10901 In 1985, the ICC exempted from regulation the entire\nclass of acquisitions o f railroad lines by non-carriers. See Ex Parte 392 (Sub. No 1), Class Exemption fo r the A c\xc2\xad\nquisition and Operation o f Rail Lines Under 49 U.S.C. 10901, 1 I.C.C.2d 810(1985), review denied mem. sub nom\nIllinois Commerce C om m \'n v ICC, 817 F.2d 145 (D.C. Cir. 1987). Such acquisitions are effective seven days af\xc2\xad\nter the seller files a \xe2\x80\x9cnotice o f exemption,\xe2\x80\x9d unless the ICC acts to refuse o r stay the transaction No labor protective\nconditions are generally imposed on a sale in such cases, see 11 C.C.2d at 815, and none were imposed in this case.\n\nin\n\n\x0cThe ICC entered an appearance in the court of appeals in both P & LE-I and\nP & LE-Il. In P & LE-I the ICC filed an amicus brief supporting the position of\nP & LE, after having been denied intervenor status. The ICC sought and was\ngranted intervenor status in P & LE-II. It is our understanding that in neither in\xc2\xad\nstance did the ICC ask the Department of Justice to take any action in its behalf.\nAs matters now stand, the ICC has asked that the Department of Justice join it in\nseeking certiorari in P & LE-II, but has also asserted a right to petition the Supreme\nCourt independently if the Department declines to do so. See Memorandum for\nthe Solicitor General, from Robert S. Burk, General Counsel, ICC (May 23,\n1988).\nI. The ICC\xe2\x80\x99s Authority to Intervene or Appear as Amicus Curiae in the Court\no f Appeals\nWe start with the premise, as to which there appears to be no disagreement in\nthis situation, that the ICC could not appear in district court or the court of ap\xc2\xad\npeals in its own name, either as intervenor or amicus curiae, absent statutory au\xc2\xad\nthorization. This is because the Attorney General has plenary authority and re\xc2\xad\nsponsibility for all litigation in which the United States or one of its agencies is\na party or is interested, \xe2\x80\x9c[e]xcept as otherwise authorized by law.\xe2\x80\x9d See 28 U.S.C.\n\xc2\xa7\xc2\xa7 516, 519. See generally The Attorney General\xe2\x80\x99s Role as Chief Litigator for\nthe United States, 6 Op. O.L.C. 47 (1982). In addition, it has been the consistent\nposition of this Department that, where Congress has not given an agency au\xc2\xad\nthority to litigate through its own attorneys, the Attorney General may not trans\xc2\xad\nfer or delegate to it his own litigating power. While attorneys employed by agen\xc2\xad\ncies that have no independent authority to conduct litigation may assist\nDepartment of Justice attorneys, their role is restricted to so-called \xe2\x80\x9cagency coun\xc2\xad\nsel\xe2\x80\x9d functions. See Representation of the United States Sentencing Commission\nin Litigation, 12 Op. O.L.C. 18, 20 (1988). In a few words, sections 516 and 519\nrequire that, absent statutory direction to the contrary, attorneys of the Depart\xc2\xad\nment of Justice under the direction of the Attorney General represent an agency\no f the United States in court.\nAmicus participation in a case requires the same clear and specific statutory\nexception to sections 516 and 519 as does appearance as a party in litigation.3\n3\nSee M emorandum for the Attorney General, from Theodore B Olson, Assistant Attorney General, Office of\nLegal Counsel, Re: A uthority o f the Equal Employment Opportunity Commission to Participate as Amicus Curiae\nin W illiams v. City o f N ew Orleans (Mar. 2 4 , 1983); Memorandum for J. Paul McGrath, Assistant Attorney Gen\xc2\xad\neral, Civil Division, from Theodore B. O lson, Assistant Attorney General, Office of Legal Counsel, Re Amicus\nCuriae Role o f the Sm all Business Administration s C hief Counsel fo r Advocacy under the Regulatory Flexibility\nA c t (M ay 17, 1983). In the highly limited an d distinguishable circumstance of litigation challenging its sentencing\nguidelines, w e did not move to strike the separate views o f the United States Sentencing Commission, with respect\nto fundamental questions pertaining to its very existence and authority within the constitutional structure. Most im\xc2\xad\nportantly, in the Sentencing Commission litigation the Department never relinquished in any manner the represen\xc2\xad\ntation o f the interests o f the United States, including those o f the Sentencing Commission as a party defendant. See\n12 Op. O.L.C. at 24\xe2\x80\x9425. Again, no similar compelling considerations relating to the IC C \xe2\x80\x99s very existence are pre\xc2\xad\nsented by the instant litigation, and the IC C \xe2\x80\x99s independent participation in the lower courts obviously thwarted the\nD epartm ent\xe2\x80\x99s control over representation affecting the interests o f the United States.\n\n112\n\n\x0cWe do not understand the ICC to dispute these basic principles of representa\xc2\xad\ntion. Rather, the ICC contends that both its amicus appearance in P & LE-I and\nits intervention in P & LE-II were authorized by statute. Specifically, the ICC re\xc2\xad\nlies upon 28 U.S.C. \xc2\xa7 2323 for its authority both to intervene and to appear as\namicus in this litigation.4 Section 2323 provides, inter alia, that the Attorney Gen\xc2\xad\neral shall represent the government in \xe2\x80\x9cactions specified in section 2321 of this\ntitle\xe2\x80\x9d and in certain other enforcement aetions. It also provides that the ICC it\xc2\xad\nself, and any party in interest to a proceeding before the ICC in which an order\nis made, may appear as parties \xe2\x80\x9cin any action involving the validity\xe2\x80\x9d of that or\xc2\xad\nder. Because section 2323 is central to the ICC\xe2\x80\x99s argument, we reprint it in full\nin the margin.5 The ICC takes the position that the authority given it under the\nsecond paragraph of section 2323 authorizes it to intervene or appear as amicus\nnot only in enforcement actions originated by the Attorney General under the first\nparagraph of this section, but also in any other action in which the \xe2\x80\x9cvalidity\xe2\x80\x9d of\na Commission order is arguably drawn into question, whether or not the United\nStates is a party.6\nWe disagree. The language of section 2323 on which the ICC relies admits of\nthe proffered construction only if read entirely in isolation. When viewed in the\ncontext of the section as a whole, and the scheme of two preceding statutory pro\xc2\xad\nvisions, it is clear that the intervention authority given the ICC in the second para\xc2\xad\ngraph of section 2323 is confined to the enforcement actions brought by the At\xc2\xad\ntorney General under the first paragraph of that section.\n4 See Mr. Burk\'s May 23 memorandum at 4 In an earlier memorandum dealing with essentially this same issue\nin another case, Mr Burk appears also to rely on the provision o f the ICA lhat authorizes the ICC to employ attor\xc2\xad\nneys \xe2\x80\x9cto represent the Commission in any case in court.\xe2\x80\x9d 49 U.S C. \xc2\xa7 10301(f)(1)- See Memorandum for the So\xc2\xad\nlicitor General, from Robert S. Burk, General Counsel, ICC, at 6-11 (Apr. 13, 1988), discussing the ICC\xe2\x80\x99sauthority to file an amicus b n e f in Deford v Soo Line R R., 867 F.2d 1080 (8th C ir), cert, denied, 492 U.S. 927 (1989).\nSuch general provisions have never been understood in and o f themselves to constitute grants of litigating author\xc2\xad\nity to an agency Rather, they simply provide for the employment o f attorney personnel to carry out an agency\xe2\x80\x99s\notherwise authorized litigating functions\n5 Section 2323 provides in full as follows:\nThe Attorney General shall represent the Government in the actions specified in section 2321 of\nthis title and in enforcement actions and actions to collect civil penalties under subtitle IV o f title 49.\nThe Interstate Commerce Commission and any party or parties in interest to the proceeding before\nthe Commission, in which an order or requirement is made, may appear as parties of their own mo\xc2\xad\ntion and as o f right, and be represented by their counsel, in any action involving the validity of such\norder o r requirement or any part thereof, and the interest o f such party.\nCommunities, associations, corporations, firms, and individuals interested in the controversy or\nquestion before the Commission, or in any action commenced under the aforesaid sections may inter\xc2\xad\nvene in said action at any time after commencement thereof\nThe Attorney General shall not dispose o f or discontinue said action or proceeding over the ob\xc2\xad\njection o f such party or intervenor, who may prosecute, defend, or continue said action or proceeding\nunaffected by the action or nonaction of the Attorney General therein\n6 The ICC argues that the RLEA\xe2\x80\x99s action constitutes a \xe2\x80\x9ccollateral attack[]\xe2\x80\x99f on its exemption order in this case,\nsuggesting that it would limit its assertion o f authority to intervene under section 2323 to cases whose result po\xc2\xad\ntentially would render an ICC order invalid or ineffective. See Mr Burk\xe2\x80\x99s May 23 memorandum at 4. See also Mr.\nB urk\xe2\x80\x99s April 13, 1988 memorandum on the D eford case at 6-11. But no such limiting principle is embodied in the\nbroad language (\xe2\x80\x9cany action involving the validity\xe2\x80\x9d) o f the second paragraph o f section 2323. Moreover, we note\nthe court of appeals\xe2\x80\x99 rejection of the IC C \xe2\x80\x99s argument that the RLEA\xe2\x80\x99s suit constituted \xe2\x80\x9ca forbidden collateral at\xc2\xad\ntack on the ICC\xe2\x80\x99s order approving the sale transaction.\xe2\x80\x9d 845 F.2d at 437. See also id. at 438 (\xe2\x80\x9cWe do not view a ju \xc2\xad\ndicially-enforced delay as an attack on the ICC\xe2\x80\x99s order.\xe2\x80\x9d)\n\n113\n\n\x0cLooking first at section 2323 alone, it seems clear that its several paragraphs\nwere intended to be read together, and understood to cover the same universe of\ncourt proceedings. Indeed, its separate paragraphs are not even demarcated as\nseparate subsections. This textually evident construction of section 2323 is sup\xc2\xad\nported by sections 2321 and 2322, the provisions which, along with section 2323,\nconstitute chapter 157 of title 28, entitled \xe2\x80\x9cInterstate Commerce Commission Or\xc2\xad\nders; Enforcement and Review.\xe2\x80\x9d Section 2321 describes the procedures for ju\xc2\xad\ndicial review of ICC orders: actions by private parties to enjoin or suspend an or\xc2\xad\nder are to be brought in the court of appeals, in accordance with chapter 158 (the\nHobbs Act); actions to enforce ICC orders other than for the payment of money\nor the collection of fines, are to be brought in district court \xe2\x80\x9cas provided in this\nchapter.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2321(b). Section 2322 provides that all actions specified\nin section 2321 shall be brought \xe2\x80\x9cby or against the United States.\xe2\x80\x9d Reading all\nthree provisions of chapter 157 together confirms that the second paragraph of\nsection 2323 was intended to give the ICC authority only in the actions that are\ndescribed in and governed by its first paragraph.\nThe legislative history of section 2323 bears out this interpretation. Originally\nenacted in 1910, see 36 Stat. 539,543, its very purpose was to give the Attorney\nGeneral control over litigation under the ICA that had previously been conducted\nwholly by the ICC through its own attorneys. See H.R. Rep. No. 9 2 3 ,61st Cong.,\n2d Sess. 3 (1910). At the same time, the ICA was amended to delete the author\xc2\xad\nity for the ICC to apply \xe2\x80\x9cin its own name\xe2\x80\x9d for enforcement of its orders. The\nIC C \xe2\x80\x99s entitlement to intervene in an action brought by the Attorney General was\nrelegated to a proviso following the description of the Attorney General\xe2\x80\x99s pri\xc2\xad\nmary role. The caselaw interpreting the IC C \xe2\x80\x99s power to litigate under section\n2323 confirms that it is activated in the enforcement context only after the At\xc2\xad\ntorney General himself has initiated the enforcement action. See ICC v. South\xc2\xad\nern Ry. Co., 543 F.2d 534 (5th Cir. 1976), a jf d , 551 F.2d 95 (5th Cir. 1977) (en\nbanc).7\nIn summary, we believe that the ICC\xe2\x80\x99s power under the second paragraph of\nsection 2323 to intervene or appear as amicus curiae in litigation is limited to\nthose enforcement actions brought by the Attorney General under its first para\xc2\xad\ngraph. This means that the ICC is without authority to become directly involved\nin litigation between two private parties over the effect of one of its orders, even\n\n7\nThe ICC suggests its doubt as to the continuing validity o f the Fifth C ircuit\xe2\x80\x99s decision in the Southern Rail\xc2\xad\nway case, citing the Seventh Circuit\xe2\x80\x99s decision in Carothers v. Western Transp. Co , 563 F.2d 311, 313 (7th Cir.\n1977). W hatever the merits o f that doubt, it is inapposite to this case. Carothers dealt with the ability o f a private\nparty to initiate an action against another private party to enforce an ICC order under 49 U.S.C. \xc2\xa7 L6(12)(1976),\nand the court\xe2\x80\x99s statement respecting the IC C \xe2\x80\x99s authority w as thus dictum. (The authonty o f a private party to bring\nan enforcement action is now separately codified at 49 U.S.C. \xc2\xa7 11705.) The Carothers court simply held that the\nUnited States was not an indispensable party to a private action to enforce an ICC order under section 16(12), and\ndid not question the Attorney General\xe2\x80\x99s authonty to initiate a suit brought by the government under section 2323.\nThe ICC apparently recognizes that its title 49 authority, now codified in section 11702, has no applicability in this\nsituation, since that section plainly deals only with actions to enjoin statutory violations or to enforce Commission\norders. There is thus no occasion for revisiting the question decided in the Southern Railway case against the ICC,\nw hether the IC C \xe2\x80\x99s title 49 authonty repeals sections 2321-2323 by implication. See 543 F.2d at 539.\n\n114\n\n\x0cif the result of this litigation could effectively reverse or render invalid the or\xc2\xad\nder.8 This Department cannot remedy an agency\xe2\x80\x99s lack of litigating authority by\ndelegating its own power to intervene in an action in the name of the United\nStates. Thus the ICC would have had no authority to intervene or file an amicus\nbrief in the court of appeals in this litigation even if this Department had agreed\nto permit it to do so.9\n.iO!\'\nII. ICC Authority to Appear in the Supreme Court\n\nIn his memorandum of May 23, 1988, the General Counsel of the ICC takes\nthe position that his agency has authority in this case to seek a writ of certiorari\nfrom the Supreme Court without this Department\xe2\x80\x99s authorization. Again, we dis\xc2\xad\nagree.\nSection 518(a) of title 28 gives the Attorney General exclusive power to rep\xc2\xad\nresent the interests of the United States and its agencies in the Supreme Court,\nwhether or not Congress has given an agency authority to litigate in the lower\ncourts. Section 518(a) provides that the Attorney General and the Solicitor Gen\xc2\xad\neral shall conduct and argue all suits and appeals in the Supreme Court, \xe2\x80\x9c[e]xcept\nwhen the Attorney General in a particular case directs otherwise.\xe2\x80\x9d\nIn allowing the Attorney General to \xe2\x80\x9cdirect[] otherwise,\xe2\x80\x9d section 518 does not\nappear to compel the same exclusivity of representation in the Supreme Court\nthat sections 516 and 519 require for lower court litigation. And on occasion the\nAttorney General has elected, in the exercise of his discretionary authority under\nsection 5 18(a), to permit an agency to file a brief in the Supreme Court in its own\nname, rather than having the Solicitor General represent it. But the existence of\nthe discretionary authority to allow exceptions simply underscores the firmness\nof the otherwise applicable rule of exclusivity.10\nIn asserting the ICC\xe2\x80\x99s right to appear in the Supreme Court in this case with\xc2\xad\nout the authorization of the Attorney General, the ICC General Counsel cites as\nauthority 28 U.S.C. \xc2\xa7 2350. But this provision on its face is applicable only to\n\n8 The ICC may litigate entirely independent of any action by this Department only in proceedings initiated by\na pnvate party to enjoin or suspend its rules or orders See 28 U S C \xc2\xa7 2348. In these Hobbs Act cases, the ICC\n(like the several other regulatory agencies subject to its provisions) is entitled to participate in its ow n name, w ith\xc2\xad\nout regard to whether the Department decides to participate in the matter. The Attorney General o f course remains\nresponsible for and controls the interests o f the United States in Hobbs Act cases Id\n9 In a memorandum discussing the IC C \xe2\x80\x99s ability to intervene in the Deford case, see supra note 4, the Civil Di\xc2\xad\nvision reached the same conclusion respecting the scope o f the ICC\xe2\x80\x99s litigating authority under 28 U.S C \xc2\xa7 2323.\nSee Memorandum for the Solicitor General, from Richard K Willard, Assistant Attorney General, Civil Division\n(Feb. 18, 1988). Our only apparent difference with the Civil Division is that we do not believe that the ICC\xe2\x80\x99s lack\nof independent statutory litigation authority in the lower federal courts can be supplied simply by this Department\ngiving its consent. Rather, its attorneys may appear in court or otherwise carry out duties reserved to \xe2\x80\x9cofficers of\nthe Department o f Justice" under section 516 only if they are given special appointments in the Department of Jus\xc2\xad\ntice. See 12 Op. O.L.C at 20\n10 Just this Term the Supreme Court reaffirmed the power o f the Attorney General and the Solicitor General\nover all Supreme Court litigation. See United States v Providence Journal Co., 485 U.S. 693 (1988)\n\n115\n\n\x0cproceedings under the Hobbs A ct for the review of agency orders.11 Assuming\narguendo that section 2350 does give the ICC, and the other agencies whose or\xc2\xad\nders are subject to review under the Hobbs Act, independent authority to file a\npetition for a writ o f certiorari in the Supreme Court in Hobbs Act cases,12 it\nplainly does not constitute a general authorization for these agencies to appear in\nthe Supreme Court in any case that they believe affects their interests. Thus, en\xc2\xad\ntirely without regard to the merits of the IC C \xe2\x80\x99s argument that its intervention in\nthis case was authorized under 28 U.S.c!*\xc2\xa7 2323, section 2350 would certainly\nnot overcome the rule of exclusivity imposed by section 518(a) in a non-Hobbs\nAct case.\n\nCONCLUSION\nIn summary, we conclude that the ICC was not authorized to file an amicus\nbrief in P & LE-I or to intervene in P & LE-II. Nor is the ICC authorized to seek\na writ of certiorari or otherwise appear in the Supreme Court in either case, with\xc2\xad\nout the permission of the Attorney General.\nD\n\nouglas\n\nW. K\n\nm ie c\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n11 Section 2350 applies only to orders granting or denying an injunction under section 2349(b), or a final judg\xc2\xad\nment o f the court o f appeals "under this chapter.\xe2\x80\x9d The \xe2\x80\x9cchapter\xe2\x80\x9d in question is chapter 158 of title 28,28 U.S.C \xc2\xa7\xc2\xa7\n2341-2351.\n12 It is not entirely clear to us that the general language o f section 2350 was intended to have the effect o f re\xc2\xad\npealing section 5 18(a), even in the Hobbs A ct cases to which it applies. W e note in this regard that the Fifth Cir\xc2\xad\ncuit in Southern Railway rejected an argument that similar disjunctive w ording in 49 U.S.C. \xc2\xa7 16(12) (1976) had\nthe effect o f repealing the otherwise applicable requirement o f 28 U S C. \xc2\xa7 2323 that the Attorney General rather\nthan the ICC initiate an action to enforce an ICC order. See 543 F.2d at 538-39.\n\n116\n\n\x0c'