b'Extraterritorial Apprehension by\nthe Federal Bureau of Investigation\nIn th e ab sen ce o f an in tern atio n a l law vio latio n , a federal d istric t c o u rt will not o rd in a rily\nd iv est itself o f ju risd ic tio n in a crim inal case w h e re th e d e fe n d a n t\xe2\x80\x99s p resen c e has been\nse cu re d b y his fo rcib le a b d u c tio n from th e te rrito ria l lim its o f a foreign asylum state.\nA fo rcib le ab d u ctio n , w h en co u p led w ith a p ro te st by th e asylum state, is a v io latio n o f\nin tern atio n al law ; th e re is, h o w e v e r, som e p re c e d e n t th at c o m p licity o f asylum sta te\nofficials in th e ab d u ctio n co u ld be th e p re d ic a te for a finding o f no actu al v io latio n o f\nth e asylum sta te \xe2\x80\x99s so v e reig n ty .\nC iv il liability o n th e p a rt o f th e U n ited S tates o r p a rtic ip a tin g g o v e rn m e n t officials\nresu ltin g from a fu g itiv e \xe2\x80\x99s fo rcib le ap p reh en sio n in a foreign c o u n try w ill d e p e n d on\nth e sta tu s o f th e o p e ra tio n u n d er in tern atio n a l law ; liability c o u ld be p re d ic a te d on\nth eo ries o f co n stitu tio n al o r co m m o n law to rt, o r on a v iolation o f in tern atio n a l law .\nT h e F e d e ra l B ureau o f In v estig atio n has no a u th o rity to a p p re h e n d and ab d u c t a fugitive\nresiding in a fo reig n sta te w ith o u t th e asylum sta te \xe2\x80\x99s consent.\nIn th e ab sen ce o f asylum sta te co n sen t, fed eral officials m ay be su b je ct to ex trad itio n to\nth e asylum sta te fo r kid n apping.\n\nMarch 31, 1980\nM EMORANDUM OPINION FOR T H E ATTORNEY G E N ER A L\nYou have requested that this Office advise you on the implications of\na proposed operation of the Federal Bureau of Investigation (FBI) that\nmight entail entry of American agents into a foreign country and\nforcible apprehension of a fugitive currently residing there. It is to be\nassumed that the foreign country (hereinafter \xe2\x80\x9casylum state\xe2\x80\x9d) would file\na pro forma protest to the fugitive\xe2\x80\x99s apprehension and return to the\nUnited States. We also assume that the actual apprehension would be\nmade by FBI agents, although some elements of the local police force\nmight provide physical surveillance and aid in the neutralization of\nbodyguards during the actual apprehension.\nThe proposed operation raises the following, interrelated legal issues:\nthe implications of the seizure for the pending criminal prosecutions of\nthe fugitive, the legal status of the operation under existing treaties and\nsettled principles of international law, and the possibility of civil liabil\xc2\xad\nity on the part of the United States or participating government offi\xc2\xad\ncials. This operation is unorthodox and, therefore, prompts a number of\nlegal questions that are of first impression. Although we will discuss all\nthe above legal questions separately, we think that the fundamental\n543\n\n\x0clegal issue presented by this operation is under what circumstances does\nthe FBI, as a matter of United States law, have the authority to make\nan extraterritorial apprehension. Although the question is not free from\ndoubt, we conclude that the FBI only has lawful authority when the\nasylum state acquiesces to the proposed operation. Since we are to\nassume that a pro forma protest to the operation would be filed, that\nfundamental condition would probably not be satisfied here.\nI. Implications for Criminal Prosecutions of Extraterritorial\nApprehension that Is Subject of Protest\nThe Supreme Court has consistently stated \xe2\x80\x9cthat the power of a\ncourt to try a person for crime is not impaired by the fact that he [has]\nbeen brought within the court\xe2\x80\x99s jurisdiction by reason of a \xe2\x80\x98forcible\nabduction.\xe2\x80\x99 \xe2\x80\x9d Frisbie v. Collins, 342 U.S. 519, 522 (1952).1 It has rejected\narguments that such abductions constitute violations of the Due Process\nClause, and has reiterated the vitality of this conclusion in a recent\nTerm. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Lower courts, par\xc2\xad\nticularly the Court of Appeals for the Second Circuit, have suggested,\nhowever, that under some circumstances a federal court might divest\nitself of jurisdiction as a result of the manner in which the defendant\nwas brought before it.\nThe most sweeping statement of these circumstances is to be found in\nUnited States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). There the\nSecond Circuit confronted allegations that Toscanino, a citizen of Italy,\nwas kidnapped in Uruguay by agents in American employ, tortured and\ninterrogated for 17 days in Brazil with the knowledge of and sometimes\nin the presence of United States officials, and finally drugged and put\non a commercial flight to the United States where he was convicted of\nnarcotics violations.2 Questioning the current vitality of the Ker-Frisbie\n1 These propositions are often referred to as the Ker-Frisbie doctrine. In the leading case, Ker v.\nIllinois, 119 U.S. 436 (1886), Ker was convicted in the Illinois state courts after being forcibly\nabducted in Peru. Formal extradition had been arranged among the Governor of Illinois, the U.S.\nSecretary of State, and Peruvian officials, but the individual who was sent to accompany Ker back to\nthe United States did not present the extradition papers upon arrival in Peru. It was therefore a \xe2\x80\x9cclear\ncase of kidnapping within the confines of Peru.*\' Id. at 443. Although the apprehending agent might be\nsubject to criminal prosecution in Peru, the Court found that American law afforded the apprehended\nfugitive no protection.\nFrisbie v. Collins, 342 U.S. 319 (1952), involved an interstate abduction. Michigan officers forcibly\nseized Collins in Chicago. Acknowledging that the Michigan officers might be subject to prosecution\nunder the Federal Kidnapping Act, the Court held that as far as Collins was concerned, \xe2\x80\x9cdue process\no f law is satisfied when one present in Court is convicted of crime after having been fairly apprised of\nthe charges against him and after a fair trial in accordance with constitutional procedural safeguards.\nThere is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted\nto escape justice because he was brought to trial against his will.\xe2\x80\x99* Id. at 522. See also Mahon v. Justice,\n127 U.S. 700, 708 (1888).\n2 Toscanino alleged that he was denied sleep and nourishment for days, fed intravenously at\nsurvival levels, forced to walk for hours on end, and kicked and beaten. He claimed his fingers were\npinched by metal pliers; his eyes, nose, and anus washed in alcohol; and his genitals subjected to\nelectric shock. There had been no attempt by the United States to extradite Toscanino. Toscanino, 500\nF.2d at 270.\n\n544\n\n\x0cdoctrine, the Second Circuit relied on Rochin v. California, 342 U.S.\n165 (1952), in concluding that the concept of due process has evolved\nsuch that a court must now \xe2\x80\x9cdivest itself of jurisdiction over the person\nwhere it has been acquired as the result of the Government\xe2\x80\x99s deliberate,\nunnecessary and unreasonable invasion of the accused\xe2\x80\x99s constitutional\nrights.\xe2\x80\x9d 500 F.2d at 275.3 If on remand Toscanino\xe2\x80\x99s allegations were\nproven true, the Second Circuit saw a due process violation inherent in\nthe bribery of a foreign official, the violence and brutality of the\nabduction, the violations of international law, and the failure to attempt\nextradition of Toscanino.4\nSubsequent Second Circuit cases have read Toscanino narrowly and\nother circuits have refused to follow it. In United States ex rel. Lujan v.\nGengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975), the\nSecond Circuit emphasized that Toscanino did not mean that \xe2\x80\x9cany\nirregularity in the circumstances of a defendant\xe2\x80\x99s arrival in the jurisdic\xc2\xad\ntion could vitiate the proceedings of the criminal court,\xe2\x80\x9d but rather was\nconcerned with the \xe2\x80\x9ccruel, inhuman and outrageous treatment\xe2\x80\x9d that\nToscanino allegedly received.5\nThus the court concluded that although Lujan was forcibly abducted\nfrom Bolivia, the lack of any allegation of the type of \xe2\x80\x9cshocking\ngovernmental conduct\xe2\x80\x9d involved in Toscanino obviated any application\nof the rationale of that case. Lujan, 510 F.2d at 66.6 It did, however,\nreserve the question whether the fact that an abduction is in violation\nof international law requires dismissal of the criminal indictment: either\nbecause such illegal governmental conduct constitutes a violation of\ndue process or because a federal court should, as a matter of judicial\nadministration, refuse to be a party to official misconduct. Id. at 68.7\nThe court perceived no international law violation in Lujan because\nthere had been no protest by the foreign governments involved.\nId. at 67.\nOther circuits have resolutely invoked the Ker-Frisbie doctrine to\ndismiss arguments that American courts should divest themselves of\ntheir criminal jurisdiction over a defendant because his presence was\n3 The court did not have the benefit of the Supreme Court\xe2\x80\x99s endorsement in Gerstein v. Pugh, 420\nU.S. at 119, o f the Ker-Frisbie doctrine.\n4 The court of appeals noted that even if the Ker-Frisbie doctrine was still good law, it could make\nuse of its supervisory power over the district court to upset Toscanino\xe2\x80\x99s conviction in order "to\nprevent district courts from themselves becoming \xe2\x80\x98accomplices in willful disobedience of law.\xe2\x80\x99 \xe2\x80\x9d\nToscanino, 500 F.2d at 276, quoting McNabb v. United Slates, 318 U.S. 332, 345 (1943). On remand the\ndistrict court found that Toscanino\'s allegations had no basis in fact. United States v. Toscanino, 398 F.\nSupp. 916 (E.D. N.Y. 1975).\n*510 F.2d at 65 (emphasis in original). See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert,\ndenied. 423 U.S. 847 (1975) ( Toscanino distinguished because no direct United States involvement in\ntorture by Chilean police).\n6 Lujan, a licensed pilot, alleged that while residing in Argentina, he was hired by an individual to\nfly to Bolivia. He claimed that his employer was in fact paid by American agents to lure Lujan out of\nArgentina. In Bolivia, Lujan was arrested by Bolivian police who were also allegedly paid by\nAmerican agents. He was ultimately put on a plane by Bolivian and American agents and formally\narrested upon his arrival in the United States. Lujan. 510 F.2d at 63.\n7 See supra, note 4.\n\n545\n\n\x0cprocured through a forcible abduction.8 Moreover, a number of those\ncourts have suggested that jurisdiction should be retained even if the\nabduction violates international law.9 We note, however, that there is\napparently no reported case where the abduction was the subject of a\nformal diplomatic protest by the asylum state.\nIt is our opinion that even where an abduction is a technical violation\nof international law, a federal district court should not divest itself of\njurisdiction over the fugitive\xe2\x80\x99s criminal prosecution.10 We think this\nposition is dictated by logic and precedent. In Frisbie, 342 U.S. 522, the\nSupreme Court assumed that the conduct of the Michigan authorities\nwho abducted Collins from Chicago constituted a violation of the\nFederal Kidnapping Act. It concluded, however, that the Kidnapping\nAct \xe2\x80\x9ccannot fairly be construed so as to add to the list of sanctions\ndetailed a sanction barring a state from prosecuting persons wrongfully\nbrought to it by its officers. It may be that Congress could add such a\nsanction. We cannot.\xe2\x80\x9d Frisbie, 342 U.S. at 523. A dismissal remedy for a\nviolation of international law is even less appropriate. The interests\nprotected by international law are those of sovereign nations. Any\ninterest of individuals is at best derivative. See Lujan, 510 F.2d at 67.\nBy contrast, the Federal Kidnapping Act is unquestionably for the\nprotection of individuals; yet under the principles of Frisbie, a forcible\n8 E.g., United Slates v. Postal, 589 F.2d 862, 865 (5th C ir). cert, denied, 444 U.S. 832 (1979) (arrest\nby Coast Guard upon the high seas); United States v. Mariano, 537 F.2d 257, 271-72 (7th Cir. 1976),\ncert. denied, 429 U.S. 1038 (1977) (allegations of unlawful arrest in and forcible abduction from Grand\nCayman Island; Toscanino characterized as only departure from Ker-Frisbie doctrine); Waits v.\nMcGowan, 516 F.2d 203 (3d Cir. 1975) (allegedly illegal removal from Canada to New York); United\nStates v. Cotten. 471 F.2d 744, 747-49 (9th Cir.). cert, denied, 411 U.S. 936 (1973) (forcible removal\nfrom Vietnam).\nThere is a standard formulation of the Ker-Frisbie doctrine reiterated in these cases:\nIt has long been held that due process has been satisfied when a person is apprised of\nthe charges against him and is given a fair trial. The power of a court to try a person is\nnot affected by the impropriety of the method used to bring the defendant under the\njurisdiction of the court [citing Ker and Frisbie). Once the defendant is before the\ncourt, the court will not inquire into the circumstances surrounding his presence there.\nUnited States v. Mariano. 537 F.2d at 271.\n9 E.g., Postal, 589 F.2d at 873 (\xe2\x80\x9cThis proposition, the so-called Ker-Frisbie doctrine, is equally valid\nwhere the illegality results from a breach of international law not codified in a treaty"); United States\nv. Cadena. 585 F.2d 1252, 1261 (5th Cir. 1978) United States v. Winter, 509 F.2d 975, 984-86 (5th Cir.),\ncert, denied. 423 U.S. 825 (1975) (Ker-Frisbie doctrine makes it unnecessary to inquire whether arrest\nby Coast Guard within territorial waters of Bahamas violated international law); Autry v. Wiley, 440\nF.2d 799, 802-03 (1st C ir), cert, denied. 404 U.S. 886 (1971).\nOftentimes courts simply do not discuss the status of the abduction under international law. E.g..\nMarzano, 537 F.2d 257; United States v. Herrera. 504 F.2d 859 (5th Cir. 1974); United States v. Vican,\n467 F.2d 452 (5th Cir. 1972), cert, denied. 410 U.S. 967 (1973).\n10 Cadena. 585 F.2d at 1261 (\xe2\x80\x9cno basis for concluding that violations of these international princi\xc2\xad\nples must or should be remedied . . . by dismissal of the indictment unless Fourth Amendment\ninterests are violated\xe2\x80\x9d); Autry v. Wiley. 440 F.2d at 801-02; see also Waits v. McGowan, 516 F.2d 203,\n208 (3d Cir. 1975) (\xe2\x80\x9cthe protections or rights which accrue to the extradited person primarily exist for\nthe benefit of the asylum nation . . ., whereas plaintiffs complaint alleges violation of rights of citizens\nof the demanding nation (The United States of America)*\xe2\x80\x99).\nAmerican courts are charged with the vindication of international law principles to the extent those\nprinciples are consonant with American law. The Paquete Habana, 175 U.S. 677, 700 (1900). The thrust\nof the abduction cases is that relinquishing criminal jurisdiction is not the means to vindicate those\nprinciples.\n\n546\n\n\x0cabduction in violation of that Act does not divest an American court of\njurisdiction.\nIn sum, we are of the opinion that in the absence of an international\nlaw violation, a federal district court will not ordinarily divest itself of\njurisdiction in a criminal case where the defendant\xe2\x80\x99s presence has been\nsecured by forcible abduction from the territorial limits of a foreign\nasylum state. Nor should it do so where there is an international law\nviolation. However, since you have advised us that you expect a pro\nforma diplomatic protest by the asylum state and that the fugitive\xe2\x80\x99s\nprosecution will proceed in the Southern District of New York, it is\nnecessary to examine the international law implications of this operation\nmore closely. As we have noted, the Second Circuit has expressly\nreserved the question whether a violation of international law should\nresult in relinquishment of criminal jurisdiction over the suspect.\nII. International Law Implications of the Proposed Operation\nThere is one line of authority in American jurisprudence that does\ncreate an exception to the Ker-Frisbie doctrine. As Congress by statute\ncan modify the jurisdiction of federal courts, so too can a treaty. Thus\nthe Supreme Court has held that a treaty can divest federal courts of\njurisdiction in certain circumstances if such was the intent of the docu\xc2\xad\nment. Cook v. United States, 288 U.S. 102, 112 (1933); Ford v. United\nStates, 273 U.S. 593, 610-11 (1927). As the Fifth Circuit recently noted,\nfor a treaty to have such an effect, it must be self-executing or imple\xc2\xad\nmented by statute.11\nThere are two arguably relevent treaties between the United States\nand the asylum state that must be considered in this case. They are the\nextradition treaty between the two countries and the United Nations\nCharter. It is well-established that the existence of an extradition treaty\nsimpliciter does not defeat U.S. jurisdiction over a fugitive apprehended\noutside the extradition mechanism.12 And there is nothing in the terms\nof the existing extradition treaty that suggests that this government has\nyielded jurisdiction over U.S. nationals who have committed crimes in\nthis country simply because they obtained refuge in the asylum state.13\nThe second relevant treaty is the United Nations Charter to which\nboth the United States and the. asylum state are signatories.\n11 Postal, 589 F.2d at 875-76. A treaty does not provide rules of decision for American courts\nunless that is the intent o f the document, Le., the treaty is self-executing. Whitney v. Robertson, 124\nU.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Of course, implementing\ndomestic legislation does provide rules of decision capable of judicial enforcement.\n12 Ker, \\ 19 U.S. at 444 (1886); Waits v. McGowan. 516 F.2d at 206-08; Lujan. 510 F.2d at 66; United\nStates v. Sobell. 244 F.2d 520, 524-25 (2d Cir.), cert, denied, 355 U.S. 873 (1957).\n13 By its terms it does not constitute an agreement that extradition will be the exclusive means of\nobtaining custody o f a fugitive. Nor does it purport to limit the criminal jurisdiction of either\nsovereign.\n\n547\n\n\x0cAll Members shall refrain in their international relations\nfrom the threat or use of force against the territorial\nintegrity or political independence of any state, or in any\nother manner inconsistent with the Purposes of the United\nNations.\nU.N. Charter, art. 2, para. 4.\nThis provision has been at issue in a number o f forcible abduction cases,\nincluding Toscanino and Lujan. The leading precedent on forcible ab\xc2\xad\nduction\xe2\x80\x99s status under the United Nations Charter is that involving the\napprehension of Adolph Eichmann in Argentina by Israeli agents. A r\xc2\xad\ngentina objected to the United Nations Security Council, which subse\xc2\xad\nquently adopted a resolution:\nConsidering that the violation of the sovereignty of a\nMember State is incompatible with the Charter of the\nUnited Nations . . . [and njoting that the repetition of\nacts such as that giving rise to this situation would in\xc2\xad\nvolve a breach of the principles upon which international\norder is founded creating an atmosphere of insecurity and\ndistrust incompatible with the preservation of peace . . .\n[the Security Council requests] the Government of Israel\nto make appropriate reparation in accordance with the\nCharter of the United Nations and the rules of interna\xc2\xad\ntional law .14\nCommentators have construed this action to be a definitive construction\nof the United Nations Charter as proscribing forcible abduction in the\nabsence of acquiescence by the asylum state.15\nIt is our opinion that even if the operation under consideration is\nconstrued to be a violation of the United Nations Charter, the criminal\njurisdiction of American courts is unaffected. We base our opinion on\nthe grounds that the United Nations Charter is not a self-executing\ntreaty and that it was not intended by the United States at the time of\nratification to affect the criminal jurisdiction of federal courts. There is\nnot a great deal of case law on these points. However, as the Fifth\nCircuit observed in Postal, 589 F.2d at 876, the self-executing nature of\na treaty is a matter of intent. The broad sweep and hortatory tone of\nArticle 2 belies any argument that a binding, self-executing limitation\non the criminal jurisdiction of American courts is evident in its term s.16\n14 Quoted in W. Bishop, International Law 475 n.52 (1962).\n15 E.g., Lujan, 510 F.2d at 66-68; Abramovsky & Eagle, U.S. Policy in Apprehending Alleged\nOffenders Abroad: Extradition, Abduction, or Irregular Rendition?, 57 Or. L. Rev. 51, 63 (1977); see\nSilving, In re Eichmann: A Dilemma o f Law and Morality, 55 Am. J. Int\xe2\x80\x99l L. 307 (1961).\n16 See generally, L. Goodrich, E. Hambro & A. Simmons, Charter of the United Nations: Commen\xc2\xad\ntary and Documents 43-55 (1969).\n\n548\n\n\x0cAnd courts that have considered provisions of the United Nations\nCharter have concluded that they are not self-executing.17\nIt is a more difficult question whether the proposed operation is a\nviolation of general international law principles, albeit not a violation of\na self-executing treaty. As Judge Kaufmann indicates in his majority\nopinion in Lujan, it appears to be the case that a forcible abduction,\nwhen coupled with a protest by the asylum state, is a violation of\ninternational law. Lujan, 510 F.2d at 67. It is regarded as an impermissi\xc2\xad\nble invasion of the territorial integrity of another state. Since the\nasylum state would hardly attest to the fact that the protest is pro\nforma, there is little to be gained in the instant case by characterizing it\nas such. Nor do there appear to be any doctrines of self-help or selfdefense applicable in this context.\nThere may be, however, some precedent in international law for the\nargument that complicity of asylum state officials in the abduction robs\nthe asylum state\xe2\x80\x99s protest of its import under international law. In 1911\nthe Permanent Court of Arbitration at The Hague declined to order the\nreturn to France of one Savarkar. Savarkar had escaped to France from\na British ship, only to be returned to the British by a French policeman.\nThe Court of Arbitration found that the French official\xe2\x80\x99s cooperation\navoided any violation of French sovereignty that might otherwise have\noccurred.18 Likewise, the complicity of the asylum state\xe2\x80\x99s police in the\nproposed operation could be the predicate for a finding of no actual\nviolation of the asylum state\xe2\x80\x99s sovereignty. One obvious drawback to\nthis argument is that it forces this government to put in issue the\nidentity of its asylum state collaborators. We also note that the Court of\nArbitration in the Savarkar case found that the British officials had no\nreason to know that the French official was not acting with the ap\xc2\xad\nproval of the French government. No similar claim of ignorance could\nbe made about the operation under consideration.\nWe conclude that the best assumption for purposes of analyzing the\nimplications of the proposed operation is that although not a violation\nof a self-executing treaty, it would violate international law. That sig\xc2\xad\nnificantly heightens the litigation risks in the Second Circuit, which has\nexplicitly declined to define the implications of an international law\nviolation on criminal jurisdiction.\nIII. Civil Liability\nWe think the case for obtaining at least the acquiescence of the\nasylum state is compelling when the criminal litigation risks are coupled\n17 Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not self\xc2\xad\nexecuting); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.), afJTd, 278 F.2d 252 (D.C. Cir.), cert,\ndenied. 364 U.S. 835 (1960) (finding other section? of Charter not self-executing).\n,a The case is discussed in Lujan, 510 F.2d at 67, and can be found at Judicial Decisions Involving\nQuestions o f International Law. 5 Am. J. Int\xe2\x80\x99l L. 490, 520 (1911).\n\n549\n\n\x0cwith the possibility of civil liability.19 Civil liability will turn to a\nsubstantial degree on whether the FBI is authorized to conduct this\noperation and that, in our view, will depend on the status of the\noperation under international law.\nIn Ker v. Illinois, the penultimate paragraph in the Supreme Court\xe2\x80\x99s\nopinion reads as follows:\nIt must be remembered that this view of the subject\ndoes not leave the prisoner or the Government of Peru\nwithout remedy for his unauthorized seizure within its\nterritory. Even this treaty with that country provides for\nthe extradition of persons charged with kidnapping, and\non demand from Peru, Julian [the party who abducted\nKer], could be surrendered and tried in its courts for this\nviolation of its laws. The party himself would probably\nnot be without redress, for he could sue Julian in an\naction of trespass and false imprisonment, and the facts set\nout in the plea would without doubt sustain the action.\nW hether he could recover a sum sufficient to justify the\naction would probably depend upon moral aspects of the\ncase which we cannot here consider.\n119 U.S. at 444.\nAs the above quotation indicates, the question of civil liability is\ncertainly an open one, as is the criminal liability of the apprehending\nagents and others under asylum state law. We discuss criminal liability\nin Part IV below.\nThere appear to be three potential civil liability theories: constitu\xc2\xad\ntional violations by American agents, common law torts committed by\nAmerican agents (i.e., false imprisonment), and violation of international\nlaw. The potential defendants are the federal government and individ\xc2\xad\nual government officials involved in this operation.20\nBy virtue of the Federal Tort Claims A ct (FTCA), the United States\nhas waived sovereign immunity with respect to the torts of assault, false\nimprisonment, and false arrest. 28 U.S.C. \xc2\xa7\xc2\xa7 2674, 2680(h). The authori\xc2\xad\nties are split on whether that waiver includes related constitutional\ntorts.21 There is, however, unanimous, albeit limited, authority that\neven for common law torts, the FTC A is not a total waiver of sover\xc2\xad\neign immunity. In the leading case, the Fourth Circuit has held that\n19 By \xe2\x80\x9cacquiescence" we do not m6an formal endorsement. It is sufficient that the asylum state\nagree not to protest the apprehension.\n20 Those who authorize, direct, participate in, or ratify the operation are potentially liable.\n21 Compare Norton v. United Stoles* 581 F.2d 390 (4th Cir.), cert, denied, 439 U.S. 1003 (1978), with\nBirnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). Birnbaum, however, did not have to consider\nthe effects o f the 1973 amendments to the FTCA. We think that the best assumption in light of those\namendments is that the FTCA does waive sovereign immunity for damage actions predicated on\nFourth Amendment violations. Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional\nTorts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976).\n\n550\n\n\x0cimmunity that is available to government officers sued in their personal\ncapacities can also be asserted by the government when it is sued in\ntheir stead under the FTC A .22 Therefore, the key to analyzing the\npotential for civil liability is to determine whether government officials\ninvolved in this operation would enjoy either an absolute or qualified\nimmunity if sued individually for damages.\nThe Supreme Court has held that federal officials have a qualified\nimmunity from damage actions in cases of constitutional torts, and\nthat immunity at least that great governs common law torts.23 Qualified\nimmunity will be available for the proposed operation if it is within the\nouter limits of the FBI\xe2\x80\x99s authority and is conducted in good faith with a\n\xe2\x80\x9c \xe2\x80\x98reasonable belief in the validity of the arrest and search and in the\nnecessity for carrying out the arrest and search in the way the arrest\nwas made and the search was conducted.\xe2\x80\x99 \xe2\x80\x9d 24 For reasons stated below,\nwe think those conditions are satisfied only if the operation is con\xc2\xad\nducted with the acquiescence of the asylum state.\nLaw enforcement officers are acting beyond the \xe2\x80\x9couter limits\xe2\x80\x9d of\ntheir authority when they act beyond their jurisdiction.25 As the instant\noperation is presently conceived, the FBI and its agents are likely to be\nfound not acting within these jurisdictional bounds because U.S. agents\nhave no law enforcement authority in another nation unless it is the\nproduct of that nation\xe2\x80\x99s consent. We have on prior occasions counseled\nthat the FBI has lawful authority under United States law to conduct\ninvestigations in a foreign country provided those investigations relate\nto a matter within the statutory jurisdiction of the FBI. While no\nstatute explicitly authorizes the FBI to conduct investigations outside of\nthe United States, 28 U.S.C. \xc2\xa7 533(1) contains no geographical restric\xc2\xad\ntions and its general authorization\xe2\x80\x94to detect and prosecute crimes\nagainst the United States\xe2\x80\x94would appear to be broad enough to sanc\xc2\xad\ntion activity toward this end no matter where it was undertaken. But\nwe have coupled that opinion with the recommendation that any oper\xc2\xad\nations strictly adhere to local law and function with the knowledge and\nat least tacit approval of the country involved. We think any argument\nthat \xc2\xa7 533 gives the FBI authority to make forcible arrests anywhere in\nthe world is at best tenuous; the sounder interpretation is that its\nauthority is limited, like that of the United States generally, by the\nsovereignty of foreign nations. As we indicated in Part II, the asylum\n22 Norton, 581 F.2d at 394-97; see Daniels v. United States, 470 F. Supp. 64 (E.D.N.C. 1979).\n**Butz v. Economou, 438 U.S. 478, 506-08 (1978) (holding that only a qualified immunity is\navailable for most constitutional torts); Barr v. Matteo, 360 U.S. 564 (1959) (absolute immunity\navailable for some common law torts); see Expeditions Unlimited, Aquatic Enterprises, Inc. v. Smith\xc2\xad\nsonian Institution, 566 F.2d 289 (D.C. Cir. 1977), cert, denied, 438 U.S. 915 (1978); Granger v. Marek,\n583 F.2d 781, 784 (6th Cir. 1978).\n24Norton v. United States, 581 F.2d at 393 (quoting Bivens v. Six Unknown Named Agents o f Federal\nBureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972)).\nBates v. Clark, 95 U.S. 204, 208-10 (1877) (no official immunity for seizure not made in\nIndian country because relevant statute only authorized seizure in Indian country). Bates and similar\ncases are discussed approvingly in Butz v. Economou. 438 U.S. at 489-95.\n\n551\n\n\x0cstate\xe2\x80\x99s sovereignty would be \xe2\x80\x9cviolated\xe2\x80\x9d for purposes of subsequent\nlitigation if it filed a formal protest.\nOur conclusion regarding the scope of \xc2\xa7 533 is dictated by two\ndistinct but related lines of analysis. A conventional statutory construc\xc2\xad\ntion rule regarding the scope of an official\xe2\x80\x99s authority states that where\na statute imposes a duty, it authorizes by implication all reasonable and\nnecessary means to effectuate such duty. Given the target\xe2\x80\x99s fugitive\nstatus and the inadequacy of extradition,26 it can be forcefully argued\nthat this operation is necessary if the FBI is to carry out its law\nenforcement mission under \xc2\xa7 533. However, the reasonableness of the\noperation is questionable if it violates international law or United States\nlaw. All methods of rendition outside the traditional extradition mecha\xc2\xad\nnism have received substantial criticism from international law special\xc2\xad\nists and in academic journals. The tenor of these remarks is that such\nextraordinary means of apprehension undermine international order and\nbreed disrespect for the traditional means of fostering cooperation and\narbitrating disputes among nations.27 Judges in abduction cases have\nexpressed concern that such extraordinary apprehensions denigrate the\nrule^)f law in the name of upholding it.28 We think that concern, when\ncoupled with a U.S. or international law violation, may well lead courts\nto conclude that the activity lies beyond the jurisdiction of the FB I.29\nThe opinion of Chief Justice Marshall in The Schooner Exchange v.\nMcFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) suggests a second ap\xc2\xad\nproach to defining the limits of the FB I\xe2\x80\x99s jurisdiction under \xc2\xa7 533. The\nFB I\xe2\x80\x99s power cannot extend beyond those of the United States. The de\njure authority of the United States is necessarily limited by the sover\xc2\xad\neignty of other nations:\n26We are assuming that it can be established that extradition is an inadequate means of apprehension\nin this case. We emphasize here the importance o f an ability to make such a showing.\n11 E.g.. M. Bassiouni, International Extradition and World Public Order 121 -201 (1974); and sources\ncited supra, note 16.\n28Although he concurred in the result in Lira. 515 F.2d at 73, this concern prompted Judge Oakes\nto observe: \xe2\x80\x9cTo my mind the Government in the laudable interest of stopping the international drug\ntraffic is by these repeated abductions inviting exercise of [the court\'s] supervisory power in the\ninterest of the greater good of preserving respect for law.\xe2\x80\x9d See also. Toscanino. 500 F.2d at 276.\n29 It should be noted that this is to argue that the FBI has the authority to violate the local law of\nanother country as long as that country does not object. We think three doctrines, although none is\naddressed directly to the question under consideration, conjoin to support this conclusion.\nFirst, the \xe2\x80\x9cact of state\xe2\x80\x9d doctrine evinces \xe2\x80\x9cjudicial deference to the exclusive power of the Executive\nover conduct o f relations with other sovereign powers\xe2\x80\x9d and \xe2\x80\x9cprecludes any review whatever of the\nacts of the government of one sovereign State done within its own territory by the courts of another\nsovereign State." First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 765 (1972)\n(opinion of Rehnquist, J.). We think that to say the FBI had no authority to apprehend the fugitive,\ndespite the acquiescence of the asylum state, because such apprehension was in violation of local law\nis in fact to judge the actions of the asylum state\xe2\x80\x94here its failure to enforce arguably applicable local\nlaw. Second, it is tantamount to giving an individual the right to dispute a nation\xe2\x80\x99s conception of its\nown sovereign interests in violation of the principle that only the sovereign has standing to assert and\nconstrue its interest. Third, there is the maxim that the penal laws of a foreign country are not\nenforced in the courts of this country, but must be enforced in the place where the violation occurs.\nBanco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964).\n\n552\n\n\x0cThe jurisdiction of the nation within its own territory is\nnecessarily exclusive and absolute. It is susceptible of no\nlimitation not imposed by itself. Any restriction upon it,\nderiving validity from an external source, would imply a\ndiminution of its sovereignty to the extent of the restric\xc2\xad\ntion, and an investment of that sovereignty to the same\nextent in that power which could impose such restriction.\nAll exceptions, therefore, to the full and complete\npower of a nation within its own territories, must be\ntraced up to the consent of the nation itself. They can\nflow from no other legitimate source.\n11 U.S. (7 Cranch) at 136.\nIn short, both lines of analysis suggest that in the absence of asylum\nstate consent, the FBI is acting outside the bounds of its statutory\nauthority when it makes an apprehension of the type proposed here\xe2\x80\x94\neither because \xc2\xa7 533 could not contemplate a violation of international\nlaw or because the powers of the FBI are delimited by those of the\nenabling sovereign. Once the \xe2\x80\x9cauthority\xe2\x80\x9d hurdle is surmounted, how\xc2\xad\never, we think that the other parts of the good faith defense are readily\nmet. There is ample probable cause and a number of outstanding bench\nwarrants.\nAssuming the operation goes forward without asylum state consent,\nit is necessary to examine more closely the civil liability theories that\nmay be put forward by the fugitive. There are two constitutional\narguments available to him. The first is that he is subject to an unrea\xc2\xad\nsonable search and seizure in violation of the Fourth Amendment. The\nsecond is the Fifth Amendment due process argument based on the\nlogic of Toscanino. The Bill of Rights does apply to actions of Ameri\xc2\xad\ncan officials directed at American nationals overseas,30 and it is our\nview that the proposed operation would have some Fourth Amendment\nproblems due to the absence of asylum state consent.\nThe standard Fourth Amendment requirement for an arrest is that it\nbe based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964);\nGerstein v. Pugh, 420 U.S. at 111-12. \xe2\x80\x9c[WJhile the Court has expressed\na preference for the use of arrest warrants when feasible . . . , it has\nnever invalidated an arrest supported by probable cause solely because\nthe officers failed to secure a warrant.\xe2\x80\x9d Id. at 113. Here we have\nwarrants and probable cause. The Fourth Amendment problem stems\ninstead from the FBI\xe2\x80\x99s lack of statutory authority for an extraterritorial\napprehension that has not been sanctioned by the asylum state.\nWhere federal officials act without explicit statutory authority, the\nvalidity of an arrest in this country turns on whether it meets the\n30 Reid v. Covert 354 U.S. 1, 5-6 (1957); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144,\n160-61 (1976).\n\n553\n\n\x0cstandards for a valid citizen\xe2\x80\x99s arrest under state law.31 If a court\nextrapolated that reasoning to the international context, the pertinent\nquestion would be the standards for a citizen\xe2\x80\x99s arrest in the asylum\nstate.32 The rule in the asylum state is that \xe2\x80\x9c[a]ny person may, with or\nwithout warrant or other legal process, arrest and detain another\nperson who has committed a felony.\xe2\x80\x9d Presumably this is a reference to\ndomestic felonies; otherwise the statute would authorize arrests for\ncrimes that are not punishable in domestic courts and are not the\nsubject of an extradition order. Thus we think this asylum state statute\ncould not afford to U.S. officials authority to arrest for U.S. felonies\nwithin the asylum state\xe2\x80\x99s territory. So in the absence of asylum state\nconsent and the \xc2\xa7 533 authority to arrest that comes with it, the fugitive\nhas a plausible Fourth Amendment claim. In contrast, for reasons stated\nin Part I of this memorandum to support the conclusion that, in the\nabsence of the brutality alleged in Toscanino, there is no due process\nviolation warranting divestment of jurisdiction, we conclude that there\nwould be no Fifth Amendment violation warranting a civil remedy.\nWe do not view a violation of international law as a legally sufficient\nindependent basis for a civil action. The reason is the distinct compass\nof international law. Last February the Fifth Circuit observed in the\nanalogous context of a vessel seizure:\nSince 1815 it has been established that redress for im\xc2\xad\nproper seizure in foreign waters is not due to the owner\nor crew of the vessel involved, but to the foreign govern\xc2\xad\nment whose territoriality has been infringed by the\naction.33\nThe fugitive lacks standing to pursue the violation of international\nlaw.34\nThe final potential bases for civil liability on the part of the federal\ngovernment and individual federal officials are the common law torts of\nfalse imprisonment, false arrest, assault and battery. And to the question\nof liability must be added the question of forum.\nS1 See United States v. D i Re. 332 U.S. 581. 589-92 (1948); Alexander v. United States. 390 F.2d 101\n(5th Cir. 1968); United States v. Viale. 312 F.2d 595, 601 (2d Cir ), cert, denied. 373 U.S. 903 (1963).\n38 O f course, a court could also conclude that federal agents do not have any citizen\'s arrest\nprivileges in the asylum state and therefore cannot avail themselves of citizen arrest standards to argue\nthe validity of the seizure.\n33 United States v. Conroy. S89 F.2d I2S8, 1268 (5th Cir. 1979); see also The Richmond. 13 U.S. (9\nCranch) 102. 103 (1815).\n34 Nor does the international law argument add to the fugitive\'s potential Fourth Amendment\nclaims, except to the extent that it delimits the statutory authority of the FBI. As the Fifth Circuit has\nnoted:\nW hether the search and seizure were Fourth-Amendment-unreasonable must be estab\xc2\xad\nlished by showing that interests to be served by the Fourth Amendment were violated,\nand not merely by establishing the violation of general principles o f international law.\nCadena. 585 F.2d at 1264.\nWe note that by its terms the Federal Kidnapping Act is inapplicable in the context o f the proposed\noperation. It pertains to abductions \xe2\x80\x9cwithin the special maritime and territorial jurisdiction o f the\nUnited States.\xe2\x80\x99* 18 U.S.C. \xc2\xa7 1201(aX2). But see Toscanino, 500 F.2d at 276.\n\n554\n\n\x0cAlthough a civil suit in the asylum state against U.S. officials is\ntheoretically possible, it is an unlikely course for the fugitive to take\nbecause of the obvious logistical problems, the fact the United States\nwould not be amenable to suit there, and difficulties the asylum state\ncourts would have in obtaining personal jurisdiction over individual\ngovernment officers. It is much more likely that any action for common\nlaw torts would be instituted in the United States, and we think such an\naction could be maintained in this country.\nAccording to private international law, injuries to a person or per\xc2\xad\nsonal property of another are transitory and the right to redress follows\nthe defendant to foreign lands.35 This principle has been recognized in\nthe United States.36 All that is necessary is that the defendant be found\nwithin a jurisdiction in this country. The law to be applied is normally\nthat of the site of the tortious conduct\xe2\x80\x94the asylum state in this\ncase 37\xe2\x80\x94although we think American law would still govern the ques\xc2\xad\ntion of immunity.38 It is always possible that the fugitive would be\nnonsuited because a court regards the cause of action as repugnant to\nthe policies of the forum state. But the dicta in Ker about damage\nactions make that result less certain,39 and we think that in the absence\nof an immunity defense the United States and individual federal officials\ncould be held liable for false imprisonment.\nThe law of the place of the tort also usually governs the damage\naward.40 Exemplary damages are available under English common law,\nand consequently asylum state law, as are damages for nervous\nshock.41 By their very nature, the size of such awards is impossible to\npredict; we can only advise that exemplary damages would not be\navailable in an action against the United States.42 Although there is no\nprecedent on point, we think that it is unlikely that an American court\nwould be receptive to an argument that a fugitive should be compen\xc2\xad\n35 See, e.g.. G. Cheshire, Private International Law 240-42 (1965).\nSee. e.g.. Slater v. Mexican National R.R. Co.. 194 U.S. 120 (1904); Schertenleib v. Traum. 589\nF.2d 1156, 1165 (2d Cir. 1978); Mobil Tankers Co. v. Mene Grande Oil Co.. 363 F.2d 611, 615 (3d Cir ),\ncert, denied. 385 U.S. 945 (1966).\n37 See generally, G. Cheshire, Private International Law 240-57 (1965); M. Hancock, Torts in the\nConflict of Laws 54-63 (1942); Restatement (Second) of the Conflict of Laws \xc2\xa7\xc2\xa7 10, 145 (1969). Of\ncourse, this is not an ironclad rule and the government would be free to argue that a suit between a\nU.S. citizen and his government created a sufficient nexus with the American forum to dictate the\napplication of its tort liability principles. But those principles are unlikely to vary sufficiently to make\na difference in the outcome.\n38 Although state law may govern the cause \xc2\xaef action, federal courts have applied a uniform federal\nrule in determining whether the defendant enjoys official immunity. Barr v. Matteo, 360 U.S. 564, 56976 (1959). There is no justification for departing from that rule because the cause of action arises under\nforeign law.\n39 Appellate courts have had divergent views on what forum the Supreme Court had in mind when\nit alluded to damage actions in Ker, 119 U.S. at 444. Compare Waits v. McGowan, 516 F.2d at 207 n.7\n(damage actions in state courts) with United States ex rel. Lujan v. Gengler, 510 F.2d at 64-65 n.3\n(damage actions in foreign courts).\n40 See G. Cheshire, Private International Law 602-04 (1965); M. Hancock, Torts in the Conflict of\nLaws 113-120 (1942); Restatement (Second) of Conflict of Laws \xc2\xa7\xc2\xa7 10, 145, 171 (1969).\n41 H. Street, The Law of Torts 114-17, 440 (1976).\n42 28 U.S.C. \xc2\xa72674; see. e.g.. Johnson v. United States, 547 F.2d 688, 690 n.5 (D.C. Cir. 1976).\n\n555\n\n\x0csated for his lost opportunity to evade the lawful processes of the\nUnited States. Such an argument suggests a personal \xe2\x80\x9cright of asylum,\xe2\x80\x9d\na right explicitly rejected in Ker, and the argument could be properly\nrebuffed as against the public policy of the forum. Also injunctive\nrelief, ordering that the fugitive be returned to the asylum state, is\nsquarely inconsistent with Ker. We note that there is no provision for\nindemnification of government officials held liable in an action for false\nimprisonment.43\nIV. Criminal Liability and the Importance of Asylum State Consent\nThe importance of asylum state consent is perhaps most dramatically\nhighlighted by the possibility that federal officials may be extraditable\nto the asylum state for kidnapping.44 A number of abduction cases,\nincluding Ker, have discussed this possibility.45 The only effective\nsafeguard against the diplomatic embarrassment and personal anxiety an\nextradition request would create is a prior agreement with the asylum\nstate that no extradition request will be made.\nIn sum, asylum state consent appears pivotal to the success of the\noperation, both as a matter of litigation and public perception. A formal\ndiplomatic protest w6uld force the Second Circuit to decide whether to\ndivest the district court of its criminal jurisdiction as a result of the\ninternational law violation. It would make an immunity claim in any\ncivil action difficult to maintain as well as provide the fugitive with a\nstrong argument that the operation violated his Fourth Amendment\nrights. It would present the possibility of an embarrassing extradition\nrequest. Finally, in the current international climate, this country can ill\nafford an operation that would permit others to argue that the United\nStates does not respect international law. We advise that you not\nauthorize the operation without the asylum state\xe2\x80\x99s tacit consent.\nV. Miscellaneous Considerations\nIf an apprehension is to be made, we recommend that it be made in\nthe same manner as any professional arrest: with expedition, minimum\n43 Torts Branch Monograph, Damage Suits Against Federal Officials, Department of Justice Repre\xc2\xad\nsentation, Immunity 10-11 (Nov. 1978).\n44 Art. 3, para. 7 of the extradition treaty between the United States and the asylum slate lists\nkidnapping and false imprisonment as extradition offenses. The penal code of the asylum state\nprovides:\nA person is guilty of kidnapping\xe2\x80\x94\n(1) who unlawfully imprisons any person, and takes him out of the jurisdiction of the\ncourt, without his consent; or\n(2) who unlawfully imprisons any person within the jurisdiction of the court, in such\na manner as to prevent him from applying to a court for his release or from discover\xc2\xad\ning to any other person the place where he is imprisoned, or in such a manner as to\nprevent any person entitled to have access to him from discovering the place where he\nis imprisoned.\n45 E.g., Lujan, 510 F.2d at 64-65 n.3; Villareal v. Hammond, 74 F.2d 503, 505-06 (5th Cir. 1934);\nCollier v. Vaccaro, 51 F.2d 17, 20-21 (4th Cir. 1931).\n\n556\n\n\x0crestraint, and with full sensitivity to the fugitive\xe2\x80\x99s physical needs and\nconstitutional rights. We would recommend that the fugitive be in\xc2\xad\nformed of his rights and the presence of outstanding warrants immedi\xc2\xad\nately upon his apprehension in the the asylum state and again immedi\xc2\xad\nately within the territorial confines of the United States. Even if the\nfugitive waives his rights, we recommend that there be no attempt at\ninterrogation until the fugitive is within the territorial limits of the\nUnited States.\nAs far as the participation of asylum state nationals is concerned, we\nmake the following observations: Insofar as foreign nationals are acting\nat the behest or direction of this government, they will be regarded as\nAmerican agents by the courts. If they take action outside the ambit of\nthat agency relationship, e.g., resort to torture, this government may\nsuccessfully maintain that it was not a party to that action.46 But this\ndoes not militate in favor of using asylum state nationals because FBI\nagents are not likely to engage in improper conduct in the first place.\nWe think that the use of foreign nationals raises more questions of\nstrategy than of law. Only if foreign nationals, without U.S. direction\nor compensation, deposited the fugitive on American soil would the\nlegal problems in this memorandum be obviated by their presence.\nJohn M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n<a Eg.. Lira. 515 F.2d at 70-71.\n\n557\n\n\x0c'


b"November 29, 1978\n\n78-62 MEMORANDUM OPINION FOR THE\nDIRECTOR, PRESIDENT\xe2\x80\x99S COMMISSION ON\nWHITE HOUSE FELLOWSHIPS\nSupplementation of Salary of Government Employees\n(18 U.S.C. \xc2\xa7 209)\xe2\x80\x94Propriety of Employer Providing\nCertain Benefits to Employee Serving as a White\nHouse Fellow\nThis responds to questions raised by your Office and the General Counsel of\nan Executive department regarding certain benefits an employer proposes to\nmake available to one of its employees in connection with service as a White\nHouse Fellow. The suggested arrangements are embodied in the employer\xe2\x80\x99s\nguidelines on leave of absence contracts for its employees on temporary\nGovernment assignments. We are unable to accept as legally permissible a\nnumber of its features.\nApparently, the most important aspects of the proposed arrangement from\nthe employee\xe2\x80\x99s point of view are those providing for the employer to reimburse\nher for the cost of temporary living quarters while in Washington and for travel\nto her home during the year. We understand that her husband will continue to\nwork in New Jersey and live in their home there during the year. The employee\npoints out that her husband\xe2\x80\x99s desire to keep his present job and his resulting\ninability to move to Washington will occasion the trips home, and likewise\nprevent her from renting the house in New Jersey thereby avoiding lodging\nexpenses for the family in two locations. While we sympathize with the\nemployee\xe2\x80\x99s situation, we do not believe that these special arrangements are\npermissible under 13 U.S.C. \xc2\xa7 209.\nWhatever the reasons, the decision of the employee to reside in two different\nlocations is a personal one. As a legal matter, \xc2\xa7 209, in our opinion, prohibits a\nprivate employer from providing at its expense a Federal employee with travel\nfor personal reasons where, as here, that travel is furnished on account of the\nemployee\xe2\x80\x99s Federal assignment. Whether the travel is for vacation, family, or\nother personal reasons is irrelevant for purpose of the statute.\nSimilarly, we do not believe that the employee may be reimbursed for\ntemporary living quarters in Washington. The payment of a Government\n267\n\n\x0cemployee\xe2\x80\x99s living expenses due to his Government service is a classic example\nof a supplementation of Government salary prohibited by \xc2\xa7 209.\nIt has been suggested that the employer\xe2\x80\x99s rental of an apartment in\nWashington is merely a payment in lieu of the cost of moving household\nbelongings to Washington. Because payment of moving expenses has previously\nbeen authorized by us, the argument proceeds that the payment of living\nexpenses in Washington in lieu of moving costs should also be permitted.\nWe recognize that our 1976 letter to your predecessor stated that a company\nmay pay a participant\xe2\x80\x99s moving expenses to the location of the fellowship\nassignment and back at the conclusion of the year. Upon reexamination, we no\nlonger believe that the policy of paying all moving expenses conforms to the\nintent of \xc2\xa7 209. However, we see no legal objection to the payment of the actual\nexpenses of returning to the employer\xe2\x80\x99s place of business at the conclusion of\nthe fellowship year because the payment of relocation expenses is a rather\ncommon practice in the private sector.\nHowever, payment of expenses of moving to Washington to work for the\nGovernment presents a different question. As a rule, the Government cannot\npay moving costs; newly hired Federal employees must ordinarily bear those\nexpenses themselves. Payment of these expenses by a private firm therefore\nwould bestow a substantial benefit on the individual. When this benefit accrues\nsolely because of Federal service, \xc2\xa7 209 prohibits the arrangement.\nWe recognize that White House Fellows enter Federal service for only a brief\nperiod with the expectation of returning to their previous employers. By\n\xc2\xa7 209(c), Congress created an exception from the prohibitions in \xc2\xa7 209(a) for\nspecial Government employees, who are persons employed or retained for not\nto exceed 130 out of any ensuing period of 365 days. In view of Congress\xe2\x80\x99\nexpress recognition of the unique status of certain short-term employees, it is\nnot legally possible to fashion additional exceptions administratively for other\nshort-term employees who do not fall within that exception.\nNor do we believe that a special construction of \xc2\xa7 209(a) is warranted in\norder to further the purposes of the White House Fellows program. If that\nprogram had any special statutory authorization indicating that certain outside\nfinancial assistance is permissible, then perhaps modifications in the applica\xc2\xad\ntion of \xc2\xa7 209(a) would be warranted. But the program, which is authorized only\nby Executive order, warrants no implied exception to an act of Congress.\nWe also recognize that current participants in the White House Fellows\nprogram may have relied upon past practice in accepting moving expense\nreimbursement. But we would suggest that next year\xe2\x80\x99s participants be advised\nin advance of the legal restrictions identified herein.\nIn the interim, we are unable to extend the reasoning of the 1976 letter to\nother reimbursements, such as those for apartment rental in Washington. We\nshould point out that the letter did not suggest that every participant in the\nfellowship program is entitled to some reimbursement from his previous\nemployer, or that the payment can be for a variety of purposes, such as moving\nexpenses, rent, or for some other items. Regardless of the controversy over the\nlegality of paying moving expenses under \xc2\xa7 209(a), the payment of a Federal\n268\n\n\x0cemployee\xe2\x80\x99s living expenses while in Washington is, as pointed out above, a\nclassic example of salary supplementation and therefore \xc2\xa7 209(a) applies.\nIt has also been suggested that payment of expenses for temporary quarters in\nWashington is no different in principle from a firm renting an employee\xe2\x80\x99s\npermanent residence which he vacates during his period of absence as a White\nHouse Fellow, which we concluded in the 1976 letter is lawful. We must\ndisagree. When the company arranges for the rent of the permanent residence,\nor rents the residence itself, the employee should be left in no better position\nthan he would be in if he rented the residence directly to an individual tenant.\nFor example, the employee should bear any rental or management fees entailed\nin the firm\xe2\x80\x99s renting the residence to an individual tenant; and if the\narrangement provides for the firm to rent the residence and leave it\nunoccupied, the fair market rental should be reduced by a reasonable estimate\nof maintenance and other costs that forseeably will not be incurred.\nImplicit in the conclusion stated in our 1976 letter that it is permissible for a\ncompany to rent the vacated permanent residence of a White House Fellow was\nthe understanding that the arrangement must be essentially the same as though\nthe residence were rented on the open market and that the employee will\ntherefore not have the use of the residence during the rental period.1 In this\ncase, however, the family will have the use of the permanent residence. The\nemployer could not, therefore, properly pay the employee the rental value of\nthe home; this would confer a windfall that would not otherwise result. Thus,\nthe reimbursement of temporary lodging costs in Washington cannot be\njustified by reference to situations in which the private employer may rent the\nWhite House Fellow\xe2\x80\x99s permanent residence.\nSeveral other aspects of the employer\xe2\x80\x99s guidelines are also troublesome. We\nmay question, for example, the continuation of concession telephone service\nprovided by the company for a person in Government service. Section 209(b)\npermits a Government employee to continue to participate in a \xe2\x80\x9c bona fide\npension, retirement, group life, health or accident insurance, profit-sharing,\nstock bonus, or other employee welfare or benefit plan maintained by a former\nemployer.\xe2\x80\x9d It may be argued that concession telephone service is a \xe2\x80\x9c benefit\nplan\xe2\x80\x9d maintained by the employer. However, the purpose of \xc2\xa7 209(b),\nsuggested by the enumeration of benefit plans in the subsection itself, is to\npermit persons entering Federal service to continue established security\narrangements that are often essential to long-range financial planning for the\nfamily. See R. Perkins, The New Federal Conflict-of-interest Law, 76 Harv. L.\nRev. 1113, 1139-42 (1963). Concession telephone service is, we believe, far\nremoved from this purpose.\nWe also note that the suggestion in the guidelines that a person returning to\nthe employer after Government service would be entitled to vacation days in an\namount equal to the difference between what he would have accrued and what\n'Also implicit was the understanding that the employee was prepared to rent the house to a tenant\nwho would reside there, so that the employer would not be paying the employee for a residence the\nemployee intended to leave vacant. In the latter situation, the employer\xe2\x80\x99s payment of rent may\ndisguise a supplementation of Government salary.\n\n269\n\n\x0che actually used (or was paid for) while in Government service is inconsistent\nwith the advice of our 1976 letter. We continue to believe that the accrual of\nvacation time from a private employer under these circumstances constitutes a\nsupplementation of salary prohibited by \xc2\xa7 209. For similar reasons, we do not\nbelieve that the employer may pay for sick leave due to any absence on account\nof service over the amount accrued from the Government, as is contemplated in\nthe guidelines. We do not, however, object to the provision for termination of\nthe leave of absence and reinstatement on the employer\xe2\x80\x99s payroll in the event of\na long-term absence.\nIn our view, a problem of salary supplementation also arises in those portions\nof the guidelines providing that coverage under the basic group life insurance\nplan and death and pension benefit plans will be calculated on the higher of the\nemployee\xe2\x80\x99s Government or his private salary. Section 209(b) permits \xe2\x80\x9c contin\xc2\xad\nued participation\xe2\x80\x9d in a \xe2\x80\x9c bona fide\xe2\x80\x9d benefit plan maintained by a former\nemployer. The concept of \xe2\x80\x9c continued participation\xe2\x80\x9d would appear to require\nthat participation is to be based on the employee\xe2\x80\x99s private salary under all\ncircumstances. The salaiy on which these figures are based must in turn be\ncalculated without reference to Government service.\nSeveral other features of the guidelines are unclear. It is provided that the\nemployer will make a lump sum payment equal to the contribution that would\nhave been made to the employer\xe2\x80\x99s savings plan had the employee remained on\nits payroll. To whom is the lump sum to be paid? If the payment is to be made\ndirectly to the employee under circumstances in which he would not otherwise\nbe entitled to have access to the funds, this would not appear to be \xe2\x80\x9c continued\xe2\x80\x9d\nparticipation in the savings plan. Similar questions are raised by the provision\nof the guidelines for payment of the cash equivalent of the Employees Stock\nOwnership Plan participation the individual would have earned at his previous\nyear\xe2\x80\x99s salary. In both these provisions and in the provision dealing with net\ncredited-service, we also have some doubt that an employee actually \xe2\x80\x9c contin\xc2\xad\nues\xe2\x80\x9d to participate in the benefit plans if he does not receive credit for the\nperiod of Federal employment until he returns to the company.\nA final ambiguity concerns the meaning of the term \xe2\x80\x9c educational fees\xe2\x80\x9d in\nthe guidelines. Some further justification of miscellaneous reentry expenses\nmentioned also seems necessary.2\nLarry A. H am m ond\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n2Public Law 96-174, 93 Stat. 1288(1979), amends 18 U.S.C. \xc2\xa7 209 by providing that it does not\nprohibit the payment of actual relocation expenses of participants in an executive exchange or fellow\xc2\xad\nship program. See H. Rept. No. 96-674 (1979).\n\n270\n\n\x0c"


b'Withdrawal of Opinion on CIA Interrogations\nA previous opinion of the Office of Legal Counsel concerning interrogations by the\nCentral Intelligence Agency is withdrawn and no longer represents the views of the\nOffice.\nJune 11, 2009\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nSections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009\ncomp.), set forth restrictions on the use of interrogation methods. In\nsection 3(c) of that order, the President further directed that \xe2\x80\x9cunless the\nAttorney General with appropriate consultation provides further guidance,\nofficers, employees, and other agents of the United States Government\nmay not, in conducting interrogations, rely upon any interpretation of\nthe law governing interrogation . . . issued by the Department of Justice\nbetween September 11, 2001, and January 20, 2009.\xe2\x80\x9d We have previously\nnoted that this direction encompasses, among other things, four opinions\nof the Office of Legal Counsel, which we withdrew on April 15, 2009.\nSee Withdrawal of Four Opinions on CIA Interrogations, 33 Op. O.L.C.\n191 (2009). We have now determined that it also encompasses another\nopinion of our Office. See Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury,\nPrincipal Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Application of the War Crimes Act, the Detainee Treatment Act, and\nCommon Article 3 of the Geneva Conventions to Certain Techniques That\nMay Be Used by the CIA in the Interrogation of High-Value al Qaeda\nDetainees (July 20, 2007).\nIn connection with the consideration of this opinion for possible public\nrelease, the Office has now reviewed this additional opinion and has\ndecided to withdraw it. It no longer represents the views of the Office of\nLegal Counsel.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n239\n\n\x0c'


b"Removal of Holdover Officials Serving on the Federal Housing\nFinance Board and the Railroad Retirement Board\nThe President m ay rem ove, w ithout cause, m em bers o f the Federal H ousing Finance Board and the\nRailroad R etirem ent B oard who are serving in holdover capacities and do not enjoy express tenure\nprotection by statute.\n\nAugust 1, 1997\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nYou have asked for our opinion about the President\xe2\x80\x99s power to remove, without\ncause, members of the Federal Housing Finance Board (\xe2\x80\x9c FHFB\xe2\x80\x9d ) and Railroad\nRetirement Board ( \xe2\x80\x9c RRB\xe2\x80\x9d ) who are serving in holdover capacities. Members of\nneither board enjoy express tenure protection.1 Your question therefore requires\nus to address whether, in the face of congressional silence, a restriction on the\nPresident\xe2\x80\x99s power to remove the board members should be inferred. See Wiener\nv. United States, 357 U.S. 349 (1958). Without such an implied removal restric\xc2\xad\ntion, the President may remove the board members without cause even before\ntheir terms have expired. See Myers v. United States, 272 U.S. 52 (1926).\nWe conclude that although there is some small risk that a court would find\na tenure protection during the holdover period, the clearly better legal view is\nthat such a protection should not be inferred. The President may therefore remove,\nwithout cause, the board members serving in holdover capacities.\nI.\nIn a thorough review of removal jurisprudence from the early days of the\nRepublic to the present, our Office concluded that tenure protection should no\nlonger be inferred when Congress is silent. See The Constitutional Separation of\nPowers Between the President and Congress, 20 Op. O.L.C. 124 (1996); see also\nid. at 168 n.115 (explaining that rationale of Wiener, in which Court inferred\na removal restriction for a quasi-adjudicatory officer, is suspect in light of subse\xc2\xad\nquent cases, but continues to be followed by some courts). In accordance with\nthis position, there would be no implied tenure protection during FHFB or RRB\ndirectors\xe2\x80\x99 regular terms, let alone during their holdover periods.\nNevertheless, some courts have continued to suggest that tenure protection may\nsometimes be inferred when Congress is silent. See, e.g., Swan v. Clinton, 100\nF.3d 973, 981-84 (D.C. Cir. 1996); FEC v. NRA Political Victory Fund, 6 F.3d\n821, 826 (D.C. Cir. 1993), cert, dismissed , 513 U.S. 88 (1994). These courts have\n1 By \xe2\x80\x9c tenure protection,\xe2\x80\x9d we mean a prohibition against removal without cause See, e.g., 5 U S C \xc2\xa7 121 I (1994)\n(\xe2\x80\x9c The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance\nin office \xe2\x80\x9d )\n\n135\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in Volume 21\n\nheld that such protection is justified whenever Congress has indicated, through\nthe functions it has vested in an agency or through legislative history or statutory\nlanguage, that the agency must be insulated from the control of the President\nin order to perform its functions adequately. This rationale does not necessarily\nextend to board members serving in holdover capacities, however, as they by defi\xc2\xad\nnition are subject to the President\xe2\x80\x99s ability, with the Senate\xe2\x80\x99s advice and consent,\nto appoint successors to their positions. See Swan, 100 F.3d at 984. In holdover\nsituations, therefore, a court may first ask (as did the court in Swan, despite the\nobjections of the concurring judge, 100 F.3d at 990 (Silberman, J.)) whether tenure\nprotection should be inferred during board members\xe2\x80\x99 terms of office. See id. at\n981-83. If the court finds that tenure protection should be inferred, it asks whether\nsuch protection should also be inferred during holdover periods. See id. at 984\xe2\x80\x94\n87. In answering this second question, courts are likely to require some rationale\nother than the one supporting tenure protection during appointed terms. See id.\nat 984. We have examined the question of removal of FHFB and RRB holdovers\nunder this methodology in order to be as thorough as possible, although it is our\nview that removal is not limited even during the directors\xe2\x80\x99 terms, in light of the\ncongressional silence on the question.\nII.\nThe FHFB is an \xe2\x80\x9c independent agency in the executive branch.\xe2\x80\x9d 12 U.S.C.\n\xc2\xa7 1422a(a)(2) (1994). It is composed of the Secretary of Housing and Urban\nDevelopment and four other directors appointed by the President with the advice\nand consent of the Senate. See id. \xc2\xa7 1422a(b)(l). The four appointed directors\nmust have \xe2\x80\x9c extensive experience or training in housing finance\xe2\x80\x9d or \xe2\x80\x9c a commit\xc2\xad\nment to providing specialized housing credit.\xe2\x80\x9d Id. \xc2\xa7 1422a(b)(2)(A). At least one\nof the directors must also be chosen from an \xe2\x80\x9c organization with more than a\n2-year history of representing consumer or community interests on banking serv\xc2\xad\nices, credit needs, housing, or financial consumer protections.\xe2\x80\x9d Id.\n\xc2\xa7 1422a(b)(2)(B). No more than three of the directors, including the Secretary,\nmay be of the same political party. See id. \xc2\xa7 1422a(b)(2)(A). No more than one\nof the appointed directors may be from any single district of the Federal Home\nLoan Bank System. See id.\nThe four appointed directors of the FHFB serve seven year terms, see id.\n\xc2\xa7 1422a(b)(l)(B), unless appointed to fill a vacancy occurring prior to the expira\xc2\xad\ntion of a director\xe2\x80\x99s term, in which case they serve for the remainder of the original\nterm, see id. \xc2\xa7 1422a(d)(l). Vacancies \xe2\x80\x9c shall be filled in the manner in which\nthe original appointment was made.\xe2\x80\x9d Id. Upon expiration of a director\xe2\x80\x99s term,\nthat director \xe2\x80\x9c may continue to serve until a successor has been appointed and\nqualified.\xe2\x80\x9d Id. Directors enjoy no express tenure protection. See id. \xc2\xa7 1422a.\n136\n\n\x0cRem oval o f H o ldover O fficials Serving on the F ederal H ousing Finance B oard a n d the R ailroad\nR etirem ent Board\n\nThe primary duty of the FHFB is to \xe2\x80\x98\xe2\x80\x98ensure that the Federal Home Loan Banks\noperate in a financially safe and sound manner.\xe2\x80\x9d Id. \xc2\xa7 1422a(a)(3)(A). Specifi\xc2\xad\ncally, the FHFB supervises the Federal Home Loan Banks and ensures that they\ncarry out their housing finance mission and stay adequately capitalized in the cap\xc2\xad\nital markets. See id. \xc2\xa7 1422a(a)(3)(B). To carry out these duties, the FHFB may\npromulgate and enforce regulations and orders, may suspend or remove for cause\nFederal Home Loan Bank employees, may assess the Banks for the Board\xe2\x80\x99s\nexpenditures, and may use the United States mails. See 12 U.S.C. \xc2\xa7 1422b(a)\n(1994).\nThe FHFB is in many ways indistinguishable from the Board of the National\nCredit Union Administration ( \xe2\x80\x9c NCUA\xe2\x80\x9d ) at issue in Swan, a recent case consid\xc2\xad\nering tenure protection during holdover periods. In that case, the D.C. Circuit\nfound that although it might infer tenure protection for NCUA Board members\nduring their fixed terms, it would not infer such protection during holdover\nperiods. See 100 F.3d at 988. The D.C. Circuit made these determinations by\nexamining the NCUA Board\xe2\x80\x99s structure, function, and legislative history, much\nof which is similar to that of the FHFB.2\nLike the NCUA Board, nothing in the statutory language establishing the FHFB\nor its legislative history explicitly grants any protection from Presidential control.\nMoreover, the FHFB explicitly resides within the executive branch and is not\namong the \xe2\x80\x9c independent regulatory agenc[ies]\xe2\x80\x9d listed in the Paperwork Reduction\nAct, 44 U.S.C. \xc2\xa73502(10) (1994), which identifies many of the agencies whose\nmembers are thought to have tenure protection.3 Two aspects of the FHFB, how\xc2\xad\never, suggest that Congress may have wanted the FHFB\xe2\x80\x99s directors to be inde\xc2\xad\npendent from the President. These aspects are shared with the NCUA Board and\nwere cited by the D.C. Circuit as indicators of independence. First, members of\nboth boards serve for fixed terms of office. Although fixed terms alone do not\nprovide removal protection, Parsons v. United States, 167 U.S. 324, 338-39\n(1897), they may offer evidence of agency independence when combined with\nother factors. See Swan, 100 F.3d at 982. Second, the FHFB and NCUA Board\nserve similar functions in that both Boards regulate financial institutions. The D.C.\nCircuit determined that this type of function often is a sign of independence from\nthe President as \xe2\x80\x9c people will likely have greater confidence in financial institu-\n\n2 The D C Circuit refrained from making any actual holding about the tenure protection of Board members during\ntheir ordinary terms On the other hand, the district court had \xe2\x80\x98\xe2\x80\x98decline[dj to infer a restriction upon the President\xe2\x80\x99s\npower to remove NCUA Board members where none was expressly provided for by Congress.\xe2\x80\x9d Swan v. Clinton,\n932 F Supp 8, 13 ( D D C 1996) (footnote omitted) This holding apparently would have extended to removal\ndunng a Board m em ber\xe2\x80\x99s regular term, as well as during the holdover penod\n3 The FHFB could, however, fall within the \xe2\x80\x9c other similar agency\xe2\x80\x9d language of the Paperwork Reduction Act.\n44 U S C \xc2\xa73502(10) (1994)\n\n137\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in Volum e 21\n\ntions if they believe that the regulation of these institutions is immune from polit\xc2\xad\nical influence.\xe2\x80\x9d Id. at 983.4\nIn addition to these features, the Swan court relied on legislative history to sug\xc2\xad\ngest that tenure protection might be inferred for NCUA Board members. See id.\nat 982-83. It is less clear from the legislative history of the FHFB that tenure\nprotection should be inferred. The NCUA Board was created in 1978 to replace\nthe NCUA Administrator who had explicitly served at the pleasure of the Presi\xc2\xad\ndent. The amendments creating the NCUA Board deleted all reference to the Presi\xc2\xad\ndent\xe2\x80\x99s removal power. The D.C. Circuit interpreted this silence after an explicit\nreference as bolstering the inference of tenure protection during NCUA Board\nmembers\xe2\x80\x99 terms. In contrast, the directors of the FHFB, or its predecessor body,\nnever explicitly served at the pleasure of the President. Early versions of the bill\nestablishing the FHFB did provide that the President could remove the Board\xe2\x80\x99s\ndirectors at his discretion. See S. 413, 101st Cong. \xc2\xa7 702(b) (1989). The proposed\nremoval provision was later dropped without comment and the reports accom\xc2\xad\npanying the enacted bill were silent on removal. See H.R. Conf. Rep. No. 101\xe2\x80\x94\n209, at 427-29 (1989). This change in a draft of a bill is less indicative of congres\xc2\xad\nsional intent than an amendment to an already enacted law. The change prior\nto enactment, however, might lend some support to the argument that at least\nsome members of Congress did not want to give the President express discretion\nto remove directors at will.5\nThe FHFB therefore shares some, but not all, of the features of the NCUA\nBoard that led the D.C. Circuit to state that it would likely infer tenure protection\nduring NCUA Board members\xe2\x80\x99 fixed terms of office. See Swan, 100 F.3d at 98384.6 Even if a court were to reach a similar conclusion with the FHFB, however,\nthe D.C. Circuit held that such features did not necessitate tenure protection during\nholdover periods. See id. at 988. The reasoning behind this holding applies equally\nto the FHFB as to the NCUA Board. The D.C. Circuit found that inferring hold\xc2\xad\nover protection was not necessary to ensure the independence of NCUA Board\nmembers because holdover members can be replaced by a Senate-confirmed suc\xc2\xad\ncessor at any time, including a time when the President disagrees with the mem\xc2\xad\n4 As the district court in Swan observed, however, the Comptroller o f the Currency and the Office of Thrift Super\xc2\xad\nvision \xe2\x80\x9c perform similar functions . . albeit w ith respect to other financial instituuons,\xe2\x80\x9d but \xe2\x80\x9c Congress has not\n. . . found it necessary to insulate these entities from executive control.\xe2\x80\x9d 932 F. Supp at 13 n.8 (citations omitted).\n5 O ther aspects o f the A ct\xe2\x80\x99s legislative history, however, indicate that Congress was not primarily concerned with\nthe FH FB \xe2\x80\x99s independence from the Executive. Even though Congress explicitly describes the Board as an \xe2\x80\x9c inde\xc2\xad\npendent agency,\xe2\x80\x9d 12 U.S.C. \xc2\xa7 I422a(a)(2), Congress was more concerned about the Board\xe2\x80\x99s independence from\nthe banking industry and the Department of the Treasury than from the President, see S Rep. No. 101-19, at 5 6 (1989), H.R. Conf. Rep. No. 101-209, at 428. Indeed, the President's involvement with the Board was designed\nto help ensure independence from the banking industry and Treasury Department. See S Rep. No 101-19, at 5.\nAll that should be inferred from the status o f an \xe2\x80\x9c independent agency\xe2\x80\x9d is that the entity is not located within\nanother department or agency\n6 A major difference between the two boards is that the Secretary o f Housing and Urban Development serves\non the FHFB, and one o f the directors of the FHFB is, therefore, necessarily subject to the plenary supervision\nof the President. This structural feature may indicate that independence from the Executive is not necessary for\nthe FHFB to carry out its functions However, it may also indicate an increased need to insulate the FHFB\xe2\x80\x99s other\ndirectors from the pow er o f the President\n\n138\n\n\x0cR em oval o f H oldover Officials Serving on the F ederal H ousing F inance Board a n d the R ailroad\nR etirem ent B oard\n\nber\xe2\x80\x99s decisions. See id. at 984. \xe2\x80\x9c [H]oldover members know that even if they\ncannot be removed directly, an unpopular decision may lead the President to nomi\xc2\xad\nnate a successor immediately or encourage the Senate to speed up confirmation\nhearings.\xe2\x80\x9d Id. Similarly, FHFB directors serving in holdover capacities can be\nreplaced at any time. See 12 U.S.C. \xc2\xa7 1422a(d)(l). Therefore, during the holdover\nperiod there is no independence to be protected by restricting removal by the\nPresident.\nThe FHFB holdover clause is somewhat different from the NCUA Board hold\xc2\xad\nover clause, however. The FHFB clause permits a director to serve until a suc\xc2\xad\ncessor has been \xe2\x80\x9c appointed and qualified,\xe2\x80\x9d id., whereas the NCUA Board hold\xc2\xad\nover clause permits a member to serve until a successor has \xe2\x80\x9c qualified,\xe2\x80\x9d see\n12 U.S.C. \xc2\xa7 1752a(c) (1994). The D.C. Circuit suggested in Swan that the use\nof \xe2\x80\x9c appointed and qualified,\xe2\x80\x9d as opposed to just \xe2\x80\x9c qualified,\xe2\x80\x9d may indicate\nCongress\xe2\x80\x99s intent to keep holdovers in office until the Senate has confirmed the\nPresident\xe2\x80\x99s appointees. See Swan, 100 F.3d at 986. Congress\xe2\x80\x99s intent presumably\nwould be both to provide that the office would not be \xe2\x80\x9c vacan[t]\xe2\x80\x9d for purposes\nof the Recess Appointment Clause, so that there would be no ground for a recess\nappointment by the President, see Wilkinson v. Legal Services Corp., 865 F. Supp.\n891, 900 (D.D.C. 1994), rev\xe2\x80\x99d on other grounds, 80 F.3d 535 (D.C. Cir.), cert,\ndenied, 519 U.S. 927 (1996); Mackie v. Clinton, 827 F. Supp. 56, 57-58 (D.D.C.\n1993), vacated as moot, 1994 WL 163761 (D.C. Cir. 1994), and to grant tenure\nprotection against removal during holdover periods. It seems unlikely, however,\nthat Congress had this intent with the FHFB. First, in suggesting such an intent,\nthe D.C. Circuit relied on the fact that Congress explicitly changed the NCUA\nBoard holdover clause from \xe2\x80\x9c appointed and qualified\xe2\x80\x9d to \xe2\x80\x9c qualified.\xe2\x80\x9d In con\xc2\xad\ntrast, Congress never made any changes to the FHFB holdover clause. Indeed,\nCongress was completely silent on the issue and in the absence of clear and\nexpress legislative intent, a court should not assume that Congress intended to\nrestrict the President\xe2\x80\x99s recess appointment powers. Cf. Franklin v. Massachusetts,\n505 U.S. 788, 800-01 (1992) (textual silence insufficient to subject President to\nAdministrative Procedure Act); see also Application o f 28 U.S.C. \xc2\xa7458 to Presi\xc2\xad\ndential Appointments of Federal Judges, 19 Op. O.L.C. 350 (1995). Second, con\xc2\xad\ntrary to the D.C. Circuit\xe2\x80\x99s suggestion, the \xe2\x80\x9c qualified\xe2\x80\x9d in \xe2\x80\x9c appointed and quali\xc2\xad\nfied\xe2\x80\x9d does not have to mean confirmed in order to avoid being surplusage. Rather,\nnominees qualify when they take their oaths and are sworn in to office, regardless\nif they have been confirmed by the Senate or have taken office through a recess\nappointment.7 See Brief for Appellees at 39 n.7, Swan v. Clinton, 100 F.3d 973\n(D.C. Cir. 1996) (No. 96-5193). We therefore conclude that tenure protection\nshould not be inferred for FHFB directors serving in holdover capacities.\n7 It would not be possible to argue that the requirement that FHFB vacancies \xe2\x80\x9c shall be filled in the manner\nin which the original appointment was made,\xe2\x80\x9d 12 U S.C \xc2\xa7 1422a(d)(l), indicates Congress\xe2\x80\x99s intent to bar recess\nappointments and keep holdovers in office. See, e .g , Staebler v. Carter, 464 F Supp. 585, 590-91 (D D C. 1979).\n\n139\n\n\x0cO pinions o f the O ffice o f Legal C ounsel in Volum e 21\n\nIII.\nThe RRB is an \xe2\x80\x9c independent agency in the executive branch.\xe2\x80\x9d 45 U.S.C.\n\xc2\xa7231f(a) (1994). It is composed of three members appointed by the President\nwith the advice and consent of the Senate. The President must choose one member\nfrom recommendations made by representatives of railroad employees and another\nmember from recommendations made by representatives of railroad employers.\nThe President appoints the final member, the Chairman, without recommendation.\nAll three members serve five year terms, unless appointed to fill a vacancy occur\xc2\xad\nring prior to the expiration of a Board member\xe2\x80\x99s term, in which case they serve\nfor the remainder of the original term. Upon expiration of a member\xe2\x80\x99s term, that\nmember \xe2\x80\x9c shall continue to serve until his successor is appointed and shall have\nqualified.\xe2\x80\x9d Id. Members of the Board enjoy no express tenure protection. See\nid.\n\nThe Board is charged with exercising all duties and powers necessary to admin\xc2\xad\nister the Railroad Retirement Act. See id. \xc2\xa7231f(b). These duties and powers\ninclude determining what portion o f the taxes collected under the Railroad Retire\xc2\xad\nment Tax Act should be credited to the various benefit accounts, determining who\nreceives annuities and death benefits, making decisions upon issues of law and\nfact relating to such benefits, arranging payment, keeping records of eligibility\nand payments, and developing rules and regulations to oversee the process. See\nid.\n\nNothing in the statutory language establishing the Board or its legislative history\nexplicitly indicates a determination by Congress that the Board\xe2\x80\x99s functions require\nit to be independent of the President\xe2\x80\x99s plenary supervision. Moreover, the Board\xe2\x80\x99s\nstructure contains features that militate against such independence. The Board is\nwithin the executive branch, see id. \xc2\xa7231f(a), and is not listed as an \xe2\x80\x9c independent\nregulatory agency\xe2\x80\x9d in the Paperwork Reduction Act, 44 U.S.C. \xc2\xa73502(10). In\naddition, the statutory language explicitly provides that \xe2\x80\x9c [vacancies in the Board\nshall not impair the powers or affect the duties of the Board or of the remaining\nmembers of the Board, of whom a majority of those in office shall constitute\na quorum for the transaction of business.\xe2\x80\x9d 45 U.S.C. \xc2\xa7231f(a). This provision\ncould militate against independence because it could eviscerate the employer/\nemployee balancing requirement whenever the employer or employee seat is\nvacant.\nOn the other hand, the Board\xe2\x80\x99s structure contains features that have been consid\xc2\xad\nered indicators of independence. First, the Board members serve for fixed terms.\nSee Swan, 100 F.3d at 982; but see Parsons, 167 U.S. at 338-39 (fixed terms\nalone do not provide removal protection). Second, the Board has some quasi\xc2\xad\njudicial functions, which until Morrison v. Olson, 487 U.S. 654 (1988), was a\ndetermining factor in declaring an agency independent and therefore protecting\nits board members from arbitrary removal. See Wiener, 357 U.S. at 353-56.\n140\n\n\x0cRem oval o f H o ldover O fficials Serving on the F ederal H ousing F inance Board a n d the R ailroad\nRetirem ent Board\n\nWe do not believe these features, without more, are enough to conclude that\nCongress intended the Board to possess that independence conferred by tenure\nprotection. The Board is far from the War Claims Commission at issue in Wiener.\nFor example, unlike the Board, see 45 U.S.C. \xc2\xa7 23lg (1994), that Commission\nwas not subject to judicial review. The Board is more like the Social Security\nAdministration, when it was part of the Department of Health and Human Serv\xc2\xad\nices, than the War Claims Commission. Even if a court concluded, however, that\nthe Board\xe2\x80\x99s functions require independence and Board members therefore need\ntenure protection to carry out these functions, it would not necessarily follow that\nthe Board members would enjoy tenure protection while serving in holdover\ncapacities. See Swan, 100 F.3d at 984. Rather, a court would most likely require\nthat the nature of the holdover capacity or language and history of the holdover\nclause also provide some evidence of Congress\xe2\x80\x99s intent to provide tenure protec\xc2\xad\ntion. See id.\nThe Board\xe2\x80\x99s holdover clause provides little evidence of an intent to grant tenure\nprotection during holdover periods. First, holdover members can be replaced by\na successor at any time, including a time when the President and Senate disagree\nwith the member\xe2\x80\x99s decisions. See id. Second, tenure protection under the holdover\nclause is not necessary to ensure the Board\xe2\x80\x99s continuity, as the Board may con\xc2\xad\ntinue to function with one or two members. See 45 U.S.C. \xc2\xa7231f(a). Third, Con\xc2\xad\ngress did not seem to be contemplating tenure protection when it added the hold\xc2\xad\nover clause in 1968. See Amendments to the Railroad Retirement Act, Pub. L.\nNo. 90-257, \xc2\xa7 106, 82 Stat. 16, 21 (1968). In a report explaining the 1968 amend\xc2\xad\nments, the House\xe2\x80\x99s only explanation of the holdover clause was that its \xe2\x80\x9c purpose\nis apparent and is similar to provisions for other agencies.\xe2\x80\x9d H.R. Rep. No. 90\xe2\x80\x94\n1054, at 27 (1968), reprinted in 1968 U.S.C.C.A.N. 1622, 1649.\nThe only possible indication of holdover tenure protection is the language of\nthe holdover clause itself. One court has held that the use of \xe2\x80\x9c shall,\xe2\x80\x9d as opposed\nto \xe2\x80\x9c may,\xe2\x80\x9d in a holdover clause indicates Congress\xe2\x80\x99s intent that an office occupied\nby a holdover official not be considered vacant for purposes of recess appoint\xc2\xad\nments until the Senate has confirmed the President\xe2\x80\x99s appointees. See Wilkinson,\n865 F. Supp. at 900. Arguably, an additional consequence of the reading might\nbe to grant tenure protection during holdover periods. However, because the\nstatute here does not limit the holdover period, this reading of the holdover clause\nwould give the Senate the power to keep holdovers in office indefinitely by simply\nrefusing to confirm the President\xe2\x80\x99s appointees. See Swan, 100 F.3d at 986-87;\nStaebler, 464 F. Supp. at 590-91. While there is at least an argument (although\nnot one we would endorse) that such power may be justified when Congress has\nexplicitly stated the need to keep the agency free of political pressures, see\nWilkinson, 865 F. Supp. at 900, it is unjustified when Congress has not explicitly\nstated that need, see Swan, 100 F.3d at 986; Staebler, 464 F. Supp. at 591. There\xc2\xad\n141\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in Volum e 21\n\nfore, holdover tenure protection should not be inferred from the use of the word\n\xe2\x80\x9c shall\xe2\x80\x9d in the holdover clause.\nNor should holdover tenure protection be inferred from the \xe2\x80\x9c appointed and\nqualified\xe2\x80\x9d language of the holdover clause. As discussed above, the D.C. Circuit\nhas suggested that the use of these terms, as opposed to just \xe2\x80\x9c qualified,\xe2\x80\x9d may\nindicate Congress\xe2\x80\x99s intent to bar recess appointments and keep holdovers in office\nuntil the Senate has confirmed the President\xe2\x80\x99s appointees. See Swan, 100 F.3d\nat 986. However, the legislative history of the Board\xe2\x80\x99s holdover clause does not\nsupport an inference of this intent. The House\xe2\x80\x99s description of the clause states\nthat it \xe2\x80\x9c provide[s] that a Board member would continue to serve until his suc\xc2\xad\ncessor has qualified.\xe2\x80\x9d H.R. Rep. No. 90-1054, at 27, reprinted in 1968\nU.S.C.C.A.N. at 1649. The House thus appears to have made no distinction\nbetween \xe2\x80\x9c appointed and qualified\xe2\x80\x9d and \xe2\x80\x9c qualified.\xe2\x80\x9d The language of the Board\xe2\x80\x99s\nholdover clause therefore provides little evidence of Congress\xe2\x80\x99s intent to give\nBoard members tenure protection during their holdover periods. If it did, it would\napply to recess appointments too. In the absence of clear and express legislative\nintent, a court should not assume that Congress intended to restrict the President\xe2\x80\x99s\nrecess appointment powers. See, e.g., Staebler, 464 F. Supp. at 590-91. We there\xc2\xad\nfore conclude that tenure protections should not be inferred for members of the\nRRB serving in holdover capacities.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n142\n\n\x0c"