b'Security Clearance Adjudications by the\nDOJ Access Review Committee\nThe notification requirement in section 106(c) of the Foreign Intelligence Surveillance\nAct generally applies when the Department of Justice intends to use information obtained from electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee concerning the Department\xe2\x80\x99s revocation of an employee\xe2\x80\x99s security clearance.\nCompliance with the notification requirement in section 106(c) of the Foreign Intelligence\nSurveillance Act in particular Access Review Committee adjudications could raise asapplied constitutional questions if such notice would require disclosure of sensitive\nnational security information protected by executive privilege.\nJune 3, 2011\n\nMEMORANDUM OPINION FOR THE CHAIR AND MEMBERS\nOF THE ACCESS REVIEW COMMITTEE\nSection 106(c) of the Foreign Intelligence Surveillance Act (\xe2\x80\x9cFISA\xe2\x80\x9d),\n50 U.S.C. \xc2\xa7 1806(c) (2006), requires the government to notify an \xe2\x80\x9caggrieved person\xe2\x80\x9d\xe2\x80\x94that is, a person who was the target of electronic surveillance or whose communications or activities were subject to electronic\nsurveillance, see id. \xc2\xa7 1801(k)\xe2\x80\x94whenever the government intends to use\n\xe2\x80\x9cagainst\xe2\x80\x9d that person any information \xe2\x80\x9cobtained or derived from [such]\nelectronic surveillance of that aggrieved person\xe2\x80\x9d in any \xe2\x80\x9ctrial, hearing, or\nother proceeding in or before any court, department, officer, agency,\nregulatory body, or other authority of the United States.\xe2\x80\x9d You have asked\nwhether this notification requirement applies when the Department of\nJustice intends to use information obtained from such electronic surveillance against an aggrieved person in an adjudication before the Access\nReview Committee (\xe2\x80\x9cARC\xe2\x80\x9d) concerning the Department\xe2\x80\x99s revocation of\nan employee\xe2\x80\x99s security clearance. 1 In accord with views we received from\nthe Department\xe2\x80\x99s Justice Management and National Security Divisions,\nwe conclude that the notification requirement generally applies to such\n\n1 See Memorandum for David Barron, Acting Assistant Attorney General, Office of\nLegal Counsel, from Mari Barr Santangelo, Chair, Access Review Committee, et al., Re:\nRequest for Opinion (Jan. 26, 2010).\n\n86\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nadjudications. 2 But, as we explain below, compliance with the notification\nrequirement in particular ARC adjudications could raise as-applied constitutional questions if such notice would require disclosure of sensitive\nnational security information protected by executive privilege.\nI.\nSection 106(c) of FISA provides:\nWhenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or\nbefore any court, department, officer, agency, regulatory body, or\nother authority of the United States, against an aggrieved person, any\ninformation obtained or derived from an electronic surveillance of\nthat aggrieved person pursuant to the authority of this subchapter,\nthe Government shall, prior to the trial, hearing, or other proceeding\nor at a reasonable time prior to an effort to so disclose or so use that\ninformation or submit it in evidence, notify the aggrieved person and\nthe court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use\nsuch information.\n50 U.S.C. \xc2\xa7 1806(c). Section 106(e), in turn, provides that the aggrieved\nperson \xe2\x80\x9cmay move to suppress the evidence obtained or derived from such\nelectronic surveillance on the grounds that\xe2\x80\x94(1) the information was\nunlawfully acquired; or (2) the surveillance was not made in conformity\nwith an order of authorization or approval.\xe2\x80\x9d Id. \xc2\xa7 1806(e).\n\nSee E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice Management Division, Re: ARC\nrequest (Apr. 2, 2010); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Todd Hinnen, Deputy Assistant Attorney General for Law\nand Policy, National Security Division, Re: NSD Views Regarding the Applicability of\n1806\xe2\x80\x99s Notification Provision to Access Review Committee Proceedings (Mar. 31, 2010).\nWe also received views from the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) that did not take\nissue with the position that section 106(c) applies to ARC adjudications, but that raised\nother, related issues, two of which we respond to below in note 3 and in Part III. See\nMemorandum for the Acting Assistant Attorney General, Office of Legal Counsel, from\nValerie Caproni, General Counsel, Federal Bureau of Investigation, Re: Request for an\nOLC Opinion Dated January 26, 2010 by ARC (Aug. 9, 2010) (\xe2\x80\x9cCaproni Memo\xe2\x80\x9d).\n2\n\n87\n\n\x0c35 Op. O.L.C. 86 (2011)\n\nYou have asked us to assume, for purposes of our analysis, that a Department component has revoked an employee\xe2\x80\x99s security clearance; that\nthe loss of security clearance caused the component to discharge the\nemployee; that the employee has appealed the component\xe2\x80\x99s securityclearance revocation decision to the ARC; and that, in the course of the\nARC adjudication, the Department intends to justify the clearance revocation with the use of information it has \xe2\x80\x9cobtained . . . from an electronic surveillance\xe2\x80\x9d of communications that involved the employee. 3 Id.\n\xc2\xa7 1806(c). Accordingly, we will assume that the employee in question\nwould be an \xe2\x80\x9caggrieved person\xe2\x80\x9d under section 106(c), 4 and that the\ngovernment would use \xe2\x80\x9cinformation obtained . . . from an electronic\nsurveillance of\xe2\x80\x9d that aggrieved person \xe2\x80\x9cagainst\xe2\x80\x9d that person in the ARC\nadjudication. Id.\nThe function of a security clearance for a Department employee is to\ndesignate the employee as someone who is eligible to be afforded access\nto classified information, in accordance with the standards set forth in\npart 3 of Executive Order 12968, 3 C.F.R. 391, 397 (1996). See 28\nC.F.R. \xc2\xa7 17.41(a)(1) (2010). Executive Order 12968 provides in relevant\npart that eligibility for access to classified materials may be granted only\nto those employees\nfor whom an appropriate investigation has been completed and\nwhose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom\nfrom conflicting allegiances and potential for coercion, and willing-\n\nBecause the circumstances you posit involve the use of information obtained directly\nfrom the electronic surveillance in question, we need not address the language in section\n106(c) that also makes the section applicable when information has been \xe2\x80\x9cderived from\xe2\x80\x9d\nelectronic surveillance.\n4 Section 101(k) of FISA defines an \xe2\x80\x9caggrieved person\xe2\x80\x9d as a \xe2\x80\x9cperson who is the target\nof an electronic surveillance or any other person whose communications or activities were\nsubject to electronic surveillance.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1801(k). In other words, \xe2\x80\x9caggrieved\nperson[s]\xe2\x80\x9d include only those persons targeted by the surveillance and others who are\nparties to communications subject to surveillance; as explained in a FISA House Report,\n\xe2\x80\x9c[t]he term specifically does not include persons, not parties to a communication, who\nmay be mentioned or talked about by others.\xe2\x80\x9d H.R. Rep. No. 95-1283, pt. I, at 66 (1978).\n3\n\n88\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nness and ability to abide by regulations governing the use, handling,\nand protection of classified information.\nExec. Order No. 12968, \xc2\xa7 3.1(b), 3 C.F.R. at 397. The Executive Order\nrequires that departments and agencies reinvestigate employees on a\nperiodic basis, and it authorizes additional reinvestigation \xe2\x80\x9cif, at any\ntime, there is reason to believe\xe2\x80\x9d that an employee \xe2\x80\x9cmay no longer meet\nthe standards for access established\xe2\x80\x9d by the Order. Id. \xc2\xa7 3.4(b), 3 C.F.R.\nat 399. 5 The applicable Department of Justice regulations accordingly\nprovide that \xe2\x80\x9c[e]ligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with\nthe national security interests of the United States and any doubt shall be\nresolved in favor of the national security.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 17.41(b). 6\nIf a Department component denies an employee a security clearance\xe2\x80\x94\nthat is, if the component determines that the employee is not eligible for\naccess to classified information\xe2\x80\x94or if the component revokes such eligibility, the component must provide the employee \xe2\x80\x9cwith a comprehensive\nand detailed written explanation of the basis\xe2\x80\x9d for the decision, to the\nextent that \xe2\x80\x9cthe national security interests of the United States and other\napplicable law permit.\xe2\x80\x9d Id. \xc2\xa7 17.47(a)(1). The component must also inform the employee that she has a right, at her own expense, to be represented by counsel or another representative of her choice. Id. During\nthe thirty days following the date of the component\xe2\x80\x99s written explanation\nof the clearance denial, the employee may request any \xe2\x80\x9cdocuments, records or reports\xe2\x80\x9d from the security clearance investigation, \xe2\x80\x9cincluding the\nIn 2008, section 3(b) of Executive Order 13467 amended Executive Order 12968 in\nseveral respects, including by adding a new section 3.5 that provides for \xe2\x80\x9ccontinuous\nevaluation\xe2\x80\x9d of individuals determined to be eligible for access to classified information.\nSee 3 C.F.R. \xc2\xa7\xc2\xa7 196, 201 (2009). None of the 2008 amendments is germane to our\nanalysis here.\n6 Eligibility for access to classified information\xe2\x80\x94i.e., having a security clearance\xe2\x80\x94\ndoes not mean that an employee will necessarily be afforded access to such information.\nBoth Executive Order 12968 and the Department\xe2\x80\x99s regulations provide that eligibility for\naccess is merely one prerequisite to actual access. In particular, an employee may not be\nprovided access to such information without a demonstrated \xe2\x80\x9cneed-to-know,\xe2\x80\x9d see Exec.\nOrder No. 12968, \xc2\xa7 1.2(a) & (c)(2), 3 C.F.R. at 392; 28 C.F.R. \xc2\xa7 17.41(a)(2), and agencies\nmust \xe2\x80\x9censure that access to classified information by each employee is clearly consistent\nwith the interests of the national security,\xe2\x80\x9d Exec. Order No. 12968, \xc2\xa7 1.2(b), 3 C.F.R. at\n392; accord 28 C.F.R. \xc2\xa7 17.41(c).\n5\n\n89\n\n\x0c35 Op. O.L.C. 86 (2011)\n\nentire investigative file upon which [the] denial or revocation [was]\nbased,\xe2\x80\x9d id. \xc2\xa7 17.47(a)(2), and within thirty days of such a request the\nemployee must receive copies of the requested materials to the extent\nsuch materials would have been provided if requested under the Freedom\nof Information Act or the Privacy Act and \xe2\x80\x9cas the national security interests and other applicable law permit.\xe2\x80\x9d Id. \xc2\xa7 17.47(a)(3). Thirty days after\nreceiving the written explanation of the denial or the requested documents\nunder section 17.47(a)(3)\xe2\x80\x94whichever is later\xe2\x80\x94the employee may file a\nwritten reply and request a review of the adverse determination. Id.\n\xc2\xa7 17.47(b). Thereafter, the employee must be provided a written notice of\nthe results of the requested review, including the reasons for the results,\nalong with the identity of the deciding authority and notice of the right to\nappeal an adverse decision to the ARC. The employee then may, within\nthirty days of receiving that written notice, appeal an adverse decision to\nthe ARC and may request the opportunity to appear personally before the\nARC and to present relevant documents, materials, and information. Id.\n\xc2\xa7 17.47(d). The Department Security Officer must also be afforded an\nopportunity to present relevant materials to the ARC in support of the\nsecurity clearance denial or revocation, and may appear personally if the\nemployee does so. Id. \xc2\xa7 17.47(g).\nThe ARC is composed of the Deputy Attorney General, the Assistant\nAttorney General for National Security, and the Assistant Attorney General for Administration\xe2\x80\x94each of whom may name a designee, subject to\nthe Attorney General\xe2\x80\x99s approval. See 28 C.F.R. \xc2\xa7 17.15(b). When an\nemployee appeals an adverse security clearance decision, the ARC must\nmake a written \xe2\x80\x9cdetermination of eligibility for access to classified information . . . as expeditiously as possible.\xe2\x80\x9d Id. \xc2\xa7 17.47(f). Although the\nregulations describe this determination as a \xe2\x80\x9cdiscretionary security decision\xe2\x80\x9d by the ARC, they also mirror the regulations governing the component\xe2\x80\x99s initial decision by providing that the ARC may conclude that an\nemployee should be granted eligibility for access to classified materials\n\xe2\x80\x9conly where facts and circumstances indicate that access to classified\ninformation is clearly consistent with the national security interest of the\nUnited States\xe2\x80\x9d; any doubt is to be \xe2\x80\x9cresolved in favor of the national security.\xe2\x80\x9d Id. The ARC\xe2\x80\x99s decision is final unless the Attorney General requests\na recommendation from the ARC and \xe2\x80\x9cpersonally exercises appeal authority.\xe2\x80\x9d Id. \xc2\xa7 17.15(a).\n90\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nII.\nBecause the ARC is composed of three high-ranking Department officials or their designees and its decisions are final unless the Attorney\nGeneral personally exercises appeal authority over them, an ARC adjudication challenging revocation of a security clearance takes place before\na \xe2\x80\x9cdepartment, officer[s], . . . or other authority of the United States.\xe2\x80\x9d\n50 U.S.C. \xc2\xa7 1806(c); see 28 U.S.C. \xc2\xa7 501 (2006) (\xe2\x80\x9c[t]he Department of\nJustice is an executive department of the United States\xe2\x80\x9d); see also Dong\nv. Smithsonian Inst., 125 F.3d 877, 881 (D.C. Cir. 1997) (\xe2\x80\x9cAt the very\nleast . . . it seems logical that for an entity to be an authority of the government it must exercise some governmental authority.\xe2\x80\x9d) (emphasis\nomitted); Webster\xe2\x80\x99s Third New International Dictionary 146 (1993)\n(defining \xe2\x80\x9cauthority\xe2\x80\x9d as \xe2\x80\x9csuperiority derived from a status that carries\nwith it the right to command and give final decisions\xe2\x80\x9d). Thus, section\n106(c)\xe2\x80\x99s notification requirement would generally be applicable in an\nARC adjudication if that adjudication is a \xe2\x80\x9ctrial, hearing, or other proceeding.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1806(c). Although we are not aware of any judicial\nprecedent discussing whether an employment-related administrative\nprocess such as an ARC adjudication would be a \xe2\x80\x9ctrial, hearing, or other\nproceeding\xe2\x80\x9d for purposes of either section 106(c) or analogous, similarly\nworded notice statutes, we believe the ordinary meaning of the statutory\nlanguage encompasses such an adjudication, and the legislative history is\nconsistent with our understanding.\nWe consider first whether the ARC process is a \xe2\x80\x9cproceeding\xe2\x80\x9d within\nthe meaning of section 106(c). Id. The term \xe2\x80\x9cproceeding\xe2\x80\x9d has several\nbroad definitions, including, most importantly for present purposes, a\n\xe2\x80\x9cprocedural means for seeking redress from a tribunal or agency.\xe2\x80\x9d\nBlack\xe2\x80\x99s Law Dictionary 1324 (9th ed. 2009); see also Webster\xe2\x80\x99s Third\nNew International Dictionary at 1807 (defining \xe2\x80\x9cproceeding\xe2\x80\x9d as \xe2\x80\x9ca\nparticular step or series of steps adopted for doing or accomplishing\nsomething\xe2\x80\x9d); Random House Dictionary of the English Language 1542\n(2d ed. 1987) (defining \xe2\x80\x9cproceeding\xe2\x80\x9d as \xe2\x80\x9ca particular action or course or\nmanner of action\xe2\x80\x9d). In order for that term to have some independent\neffect in section 106(c)\xe2\x80\x94which we assume Congress intended, see, e.g.,\nCarcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009) (\xe2\x80\x9c\xe2\x80\x98we are obliged to\ngive effect, if possible, to every word Congress used\xe2\x80\x99\xe2\x80\x9d) (quoting Reiter v.\n91\n\n\x0c35 Op. O.L.C. 86 (2011)\n\nSonotone Corp., 442 U.S. 330, 339 (1979))\xe2\x80\x94the term \xe2\x80\x9cother proceeding\xe2\x80\x9d\nin section 106(c) is best read to include processes \xe2\x80\x9cbefore any court,\ndepartment, officer, agency, regulatory body, or other authority of the\nUnited States\xe2\x80\x9d that are distinct from, and in addition to, trials and hearings. See 50 U.S.C. \xc2\xa7 1806(c). The reference to proceedings before a\n\xe2\x80\x9cdepartment, officer, agency, regulatory body, or other authority\xe2\x80\x9d strongly suggests that Congress did not intend to limit the application of this\nprovision to judicial proceedings. See id. Accordingly, although we\nneed not determine the outer bounds of the meaning of \xe2\x80\x9cproceeding,\xe2\x80\x9d the\nbreadth of the dictionary definition of the term and the surrounding text\nin section 106(c) lead us to believe that \xe2\x80\x9cproceeding\xe2\x80\x9d would encompass\nthe ARC\xe2\x80\x99s process for adjudicating an appeal from a decision by a Department of Justice component to revoke an employee\xe2\x80\x99s security clearance.\nThe legislative history is consistent with this broad reading of \xe2\x80\x9cproceeding.\xe2\x80\x9d When proposed legislation concerning electronic surveillance\nfor foreign intelligence purposes was introduced in 1976, the original\nversion of section 106(c) would have limited its scope to a \xe2\x80\x9ctrial, hearing,\nor other proceeding in a Federal or State court,\xe2\x80\x9d S. Rep. No. 94 -1035, at\n64 (1976); S. Rep. No. 94 -1161, at 41, 65 (1976). When a revised version\nof the bill was introduced in the next Congress, the language was altered\nto cover non-judicial proceedings expressly, see S. Rep. No. 95-604, at 56\n(1977) (\xe2\x80\x9cThis provision has been broadened in S. 1566 over its counterpart in S. 3197 by including non-judicial proceedings.\xe2\x80\x9d). 7 To be sure,\nsome of the language used in the relevant congressional reports echoes\nlanguage used in the context of trials or court proceedings. See, e.g., H.R.\nThe relevant draft statutory language discussed in Senate Report 95-604 is similar,\nalthough not identical to, the language actually passed a year later. The revised language\nproposed in 1977 did not explicitly include proceedings before a \xe2\x80\x9cregulatory body,\xe2\x80\x9d and\nwould have applied not only to authorities of the United States, but also to those of a state\nor political subdivision. See S. Rep. No. 95-604, at 80. In 1978, the House Permanent\nSelect Committee on Intelligence proposed the language that was adopted later that year\nand remains the current statutory text\xe2\x80\x94adding the reference to \xe2\x80\x9cregulatory body\xe2\x80\x9d and\nfocusing the section on federal authorities. See H.R. Rep. No. 95-1283, pt. I, at 9 (1978).\nAlthough the House Report setting out the language of section 106(c) as finally adopted\nexplains that the notice requirements are imposed on the states through a separate section,\nit does not provide a reason for the change, nor does it explain the reason for the addition\nof the term \xe2\x80\x9cregulatory body.\xe2\x80\x9d See id. at 89.\n7\n\n92\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nRep. No. 95-1720, at 31 (1978) (Conf. Rep.) (explaining that the Senate\nbill \xe2\x80\x9cprovided for notification to the court when information derived from\nelectronic surveillance is to be used in legal proceedings\xe2\x80\x9d); id. (explaining\nthat early notice would allow for \xe2\x80\x9cthe disposition of any motions concerning evidence derived from electronic surveillance\xe2\x80\x9d); S. Rep. No. 95-701,\nat 62 (1978) (explaining that the notice provision, as well as the provisions governing motions for suppression, \xe2\x80\x9cestablish the procedural mechanisms by which such information may be used in formal proceedings\xe2\x80\x9d)\n(emphasis added); H.R. Rep. No. 95-1283, pt. I, at 89 (1978) (same).\nNevertheless, Congress\xe2\x80\x99s decision to eliminate the reference to federal or\nstate courts in the statutory provision, coupled with the legislative history\xe2\x80\x99s explicit statement that the terms \xe2\x80\x9ctrial, hearing, or other proceeding\xe2\x80\x9d\nwere not limited to judicial proceedings, indicates that references to legal\nproceedings in the legislative history should not be understood as limiting\nsection 106(c)\xe2\x80\x99s reach to court proceedings. 8\nIn sum, Congress\xe2\x80\x99s expansion of the language of section 106(c) supports the broad reading indicated by the plain meaning of the phrase\n\xe2\x80\x9cother proceeding,\xe2\x80\x9d 9 and we conclude that an ARC adjudication of a\nAnalogous provisions in the statutory scheme governing wiretaps for law enforcement purposes also strongly suggest that Congress intended the phrase \xe2\x80\x9ctrial, hearing, or\nother proceeding\xe2\x80\x9d to be quite broad. In one provision, using language nearly identical in\nrelevant part to that in section 106(c), Congress authorized any \xe2\x80\x9caggrieved person in any\ntrial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States\xe2\x80\x9d to \xe2\x80\x9cmove to suppress the contents\xe2\x80\x9d of\ninterceptions. 18 U.S.C. \xc2\xa7 2518(10)(a) (2006). According to the legislative history, \xe2\x80\x9cthe\nscope of the provision [wa]s intended to be comprehensive,\xe2\x80\x9d although it would not\ninclude grand jury proceedings or Congressional hearings. S. Rep. No. 90 -1097, at 106\n(1968). The statutory scheme in the law enforcement context uses the narrower phrase\xe2\x80\x94\nrejected in the FISA notification provision\xe2\x80\x94\xe2\x80\x9ctrial, hearing, or other proceeding in a\nFederal or State court\xe2\x80\x9d to require that certain information be provided to parties before the\ncontents of a wiretap are used in such proceedings. 18 U.S.C. \xc2\xa7 2518(9) (2006). The\nlegislative history of that provision makes clear that the phrase was limited to \xe2\x80\x9cadversary\ntype hearings,\xe2\x80\x9d and would not include a grand jury hearing. S. Rep. No. 90 -1097, at 105.\n9 Whether the term \xe2\x80\x9cproceeding\xe2\x80\x9d as used in section 106(c) refers only to an adversarial\nprocess is a question we need not decide. Cf. In re Grand Jury Proceedings, 856 F.2d\n685, 690 & n.9 (4th Cir. 1988) (concluding that notice under section 106(c) was not\nrequired in the grand jury context because Congress explicitly included grand juries in\ncertain provisions governing domestic wiretaps, demonstrating that Congress \xe2\x80\x9cknew how\nto include grand jury investigations as proceedings before which notice must be given to\noverheard persons\xe2\x80\x9d and because the legislative history of the domestic wiretap provisions\n8\n\n93\n\n\x0c35 Op. O.L.C. 86 (2011)\n\nDepartment component\xe2\x80\x99s revocation of an employee\xe2\x80\x99s security clearance\nis an \xe2\x80\x9cother proceeding\xe2\x80\x9d within the meaning of FISA\xe2\x80\x99s notification provision. 10 Section 106(c) thus generally requires the government to notify an\n\xe2\x80\x9caggrieved person\xe2\x80\x9d when it intends to use information \xe2\x80\x9cobtained or derived from . . . electronic surveillance of that aggrieved person\xe2\x80\x9d against\nthat person in such an ARC adjudication. 11 50 U.S.C. \xc2\xa7 1806(c).\ndemonstrated that \xe2\x80\x9cthe term \xe2\x80\x98proceeding\xe2\x80\x99 was limited to include only adversary hearings\xe2\x80\x9d). The ARC adjudication at issue here is distinguishable from a federal grand jury\nproceeding because it is an adversarial process in which both sides are provided an\nopportunity to present their cases to a decision-maker. See 28 C.F.R. \xc2\xa7 17.47.\n10 Because we conclude that the ARC process is an \xe2\x80\x9cother proceeding,\xe2\x80\x9d we need not\ndecide whether it is also a \xe2\x80\x9chearing.\xe2\x80\x9d We note, however, that the term \xe2\x80\x9chearing\xe2\x80\x9d can\xe2\x80\x94\nand in federal law often does\xe2\x80\x94refer to any \xe2\x80\x9copportunity to be heard or to present one\xe2\x80\x99s\nside of a case.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary at 1044; see also Black\xe2\x80\x99s\nLaw Dictionary at 788 (defining a \xe2\x80\x9chearing\xe2\x80\x9d for purposes of administrative law as \xe2\x80\x9c[a]ny\nsetting in which an affected person presents arguments to a decision-maker\xe2\x80\x9d); 1 Richard\nJ. Pierce, Jr., Administrative Law Treatise \xc2\xa7 8.2, at 708\xe2\x80\x9312 (5th ed. 2010) (collecting and\ndiscussing decisions giving deference to various agency interpretations of statutory\nrequirements for a \xe2\x80\x9chearing\xe2\x80\x9d). Although the term may in some instances refer specifically to a particular stage of litigation, see Black\xe2\x80\x99s Law Dictionary at 788 (defining a\n\xe2\x80\x9chearing\xe2\x80\x9d as \xe2\x80\x9c[a] judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying\xe2\x80\x9d), or to the sort of\nformal, adversary process that ordinarily characterizes a trial, these are not its only\nmeanings. Thus, an ARC adjudication may be a \xe2\x80\x9chearing\xe2\x80\x9d as well as a \xe2\x80\x9cproceeding.\xe2\x80\x9d\n11 Section 106 does not specify the form of notice the government must provide to an\n\xe2\x80\x9caggrieved person.\xe2\x80\x9d See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions \xc2\xa7 27:11 (2007) (comparing section 106(c) to other statutory\nsearch notice requirements). We have been informed that the ordinary government\npractice is simply to state without elaboration that the United States intends to offer into\nevidence, or otherwise use or disclose, information obtained or derived from electronic\nsurveillance conducted pursuant to FISA, and not in the first instance to provide any\nfurther information, such as the identity of the FISA target, what communications were\nintercepted, when the information was obtained, or what FISA information the government intends to use. See Caproni Memo, supra note 2, at 2\xe2\x80\x933. You have not asked us to\naddress the scope of the required notification. We note, however, that if the aggrieved\nperson moves the relevant authority to suppress evidence or information obtained or\nderived from such electronic surveillance pursuant to section 106(e), section 106(f)\nauthorizes the Attorney General to file an affidavit under oath to the district court in the\nsame district as the authority stating \xe2\x80\x9cthat disclosure or an adversary hearing would harm\nthe national security of the United States.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1806(f) (2006). If the Attorney\nGeneral files such an affidavit, the district court is to \xe2\x80\x9creview in camera and ex parte the\napplication, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully author-\n\n94\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nIII.\nFinally, we address a constitutional issue that bears on the statutory\nquestion you have asked. The FBI notes that the President\xe2\x80\x99s authority to\ncontrol access to national security information, and thus to make security\nclearance determinations for Executive Branch employees, \xe2\x80\x9cflows primarily\xe2\x80\x9d from the President\xe2\x80\x99s constitutional powers, Dep\xe2\x80\x99t of the Navy v.\nEgan, 484 U.S. 518, 527 (1988), and, further, that federal employees do\nnot have a statutory or constitutional right to a security clearance, see id.\nat 528. In light of these premises, the FBI questions \xe2\x80\x9cwhether Congress\nhas the legal authority to impose restrictions on the Executive\xe2\x80\x99s authority\nand decision-making process in the security clearance context,\xe2\x80\x9d and\nsuggests that perhaps section 106(c) is therefore unconstitutional as applied to ARC adjudications. Caproni Memo, supra note 2, at 1\xe2\x80\x932.\nWe agree with the FBI that the President\xe2\x80\x99s constitutional authority to\nclassify information concerning the national defense and foreign relations\nof the United States and to determine whether particular individuals\nshould be given access to such information \xe2\x80\x9cexists quite apart from any\nexplicit congressional grant.\xe2\x80\x9d Egan, 484 U.S. at 527; see Whistleblower\nProtections for Classified Disclosures, 22 Op. O.L.C. 92, 94\xe2\x80\x9399 (1998)\n(statement of Randolph D. Moss, Deputy Assistant Attorney General,\nOffice of Legal Counsel, before the House Permanent Select Committee\non Intelligence). But that does not imply that Congress entirely lacks\nauthority to legislate in a manner that touches upon disclosure of classified information. See EPA v. Mink, 410 U.S. 73, 83 (1973) (\xe2\x80\x9cCongress\ncould certainly have provided that the Executive Branch adopt new procedures [concerning information required to be kept secret in the interest of the national defense] or it could have established its own procedures\xe2\x80\x94subject only to whatever limitations the Executive privilege may\nbe held to impose upon such congressional ordering.\xe2\x80\x9d). For example, we\nbelieve Congress\xe2\x80\x99s authority to regulate foreign intelligence surveillance\n\nized and conducted.\xe2\x80\x9d Id.; see also id. \xc2\xa7 1801(g) (2006) (defining \xe2\x80\x9cAttorney General\xe2\x80\x9d for\npurposes of FISA to include the Attorney General (or the Acting Attorney General); the\nDeputy Attorney General; and, upon designation by the Attorney General, the Assistant\nAttorney General for National Security).\n\n95\n\n\x0c35 Op. O.L.C. 86 (2011)\n\nunder FISA, 12 and to regulate the terms of federal employment, 13 does, as\na general matter, permit Congress to impose the notification requirement\nin section 106(c), even when that requirement reaches proceedings concerning security clearance revocations.\nThe doctrine of separation of powers, however, places some limits on\nCongress\xe2\x80\x99s authority to participate in regulating the system for protecting\nclassified information. The key question in identifying such limits is\nwhether Congress\xe2\x80\x99s action is \xe2\x80\x9cof such a nature that [it] impede[s] the\nPresident\xe2\x80\x99s ability to perform his constitutional duty.\xe2\x80\x9d Morrison v. Olson,\n487 U.S. 654, 691 (1988). Congress may not, for example, provide Executive Branch employees with independent authority to countermand or\nevade the President\xe2\x80\x99s determinations as to when it is lawful and appropriate to disclose classified information. See Whistleblower Protections for\nClassified Disclosures, 22 Op. O.L.C. at 100. And, as noted above, Congress\xe2\x80\x99s authority is \xe2\x80\x9csubject only to whatever limitations the Executive\nprivilege may be held to impose upon such congressional ordering.\xe2\x80\x9d Mink,\n410 U.S. at 83 (citing United States v. Reynolds, 345 U.S. 1 (1953)).\nSection 106(c), by reaching broadly to require notice in proceedings\nsuch as ARC adjudications, could give rise to as-applied constitutional\nconcerns under this separation of powers framework. There may, for\nexample, be cases in which providing notice under section 106(c) would\neffectively disclose sensitive national security information that is constitutionally privileged. Cf. Whistleblower Protections for Classified DiscloSee generally Memorandum for Edward P. Boland, Chairman, House Permanent\nSelect Comm. on Intelligence, from John M. Harmon, Assistant Attorney General, Office\nof Legal Counsel (Apr. 18, 1978), in Foreign Intelligence Electronic Surveillance:\nHearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on\nLegis. of the H. Permanent Select Comm. on Intelligence, 95th Cong. 31 (1978) (explaining that it would be \xe2\x80\x9cunreasonable to conclude that Congress, in the exercise of its powers\nin this area,\xe2\x80\x9d could not grant courts the authority under FISA to approve the legality of the\nExecutive\xe2\x80\x99s electronic surveillance); Foreign Intelligence Surveillance Act of 1978:\nStatement on Signing S. 1566 into Law (Oct. 25, 1978), 2 Pub. Papers of Pres. Jimmy\nCarter 1853, 1853 (1978) (explaining that FISA \xe2\x80\x9cclarifies the Executive\xe2\x80\x99s authority\xe2\x80\x9d\nand noting no constitutional objections to the Act).\n13 See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 101 (1947); Ex parte Curtis,\n106 U.S. 371, 372\xe2\x80\x9373 (1882). Various statutes regulate the security clearance process\nmore generally. See 50 U.S.C. \xc2\xa7\xc2\xa7 435\xe2\x80\x93438 (2006 & Supp. III 2009); 50 U.S.C. \xc2\xa7\xc2\xa7 831\xe2\x80\x93\n835 (2006) (governing employees of the National Security Agency).\n12\n\n96\n\n\x0cSecurity Clearance Adjudications by the DOJ Access Review Committee\n\nsures, 22 Op. O.L.C. at 94\xe2\x80\x9399 (noting historical examples of presidential\nclaims of constitutional privilege to protect national security information).\nGiven our understanding that the information provided when notice is\nrequired by section 106(c) is quite limited, see supra note 11, we expect\nsuch as-applied concerns will arise infrequently.\nCAROLINE D. KRASS\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n97\n\n\x0c'


b"January 27, 1978\n\n78-5\n\nMEMORANDUM OPINION FOR THE\nADMINISTRATOR, DRUG ENFORCEMENT\nADMINISTRATION\nDrug Enforcement Administration\xe2\x80\x94\nSupergrade Positions\xe2\x80\x94Exemption From\nCompetitive Service\n\nThis is in response to your inquiry raising four questions involving the\ninterpretation o f certain aspects o f the Percy amendment to the Crime Control\nAct o f 1976.\nThe main import o f the Percy am endm ent, \xc2\xa7 201 o f the Crime Control Act of\n1976 (Public Law 94-503; 90 Stat. 2425; 28 U .S.C . 509 note), is to except from\nthe competitive service all positions in the Drug Enforcement Administration\n(DEA) which are at levels GS-16, 17, and 18 of the General Schedule, and\ncertain positions at GS-15 (\xe2\x80\x9c subsection (a) positions\xe2\x80\x9d ). Subsection (c)(2) of\n\xc2\xa7 201 provides:\n(2)\nEffective beginning one year after the date o f the enactment of\nthis Act, an individual in a position described in subsection (a) may\nbe reduced in rank or pay by the Administrator within the Drug\nEnforcement Administration if\xe2\x80\x94\n(A) Such individual has been continuously employed in such\nposition since the date o f the enactment of this Act, and\n(B) The adm inistrator determines, in his discretion, that such\naction would promote the efficiency o f the service.\nAny individual reduced in rank or pay under this paragraph shall be\npaid in accordance with subsection (d).\nUnder subsection (d), an employee reduced in rank or pay pursuant to\nsubsection (c)(2) is to receive the basic pay he was receiving immediately\nbefore such reduction in rank or pay; under subsection (c)(3), however, he is\ndenied the benefits o f the veterans\xe2\x80\x99 preference provisions o f 5 U .S.C . \xc2\xa7\xc2\xa7 7512,\n7701.\nQuestions 1 and 2 address themselves to the following issue presented by\nsubsection (c)(2). Pursuant to that subsection the Administrator, effective 1\n23\n\n\x0cyear after the approval o f the statute (October 15, 1976), may reduce in rank or\npay an individual in a subsection (a) position if such individual has been\ncontinuously em ployed in such position since the date of the enactment of the\nAct. The problem raised by Questions 1 and 2 is whether the phrase\n\xe2\x80\x9c continuously employed in such position\xe2\x80\x9d refers to the specific position which\nthe employee holds at the time at which the reduction in rank or pay is\neffectuated, or to any subsection (a) position. In other words, does subsection\n(c)(2) apply to an employee only if he has been continuously employed in the\nsame position since the date of the approval of the Act, or is it sufficient if he\nhas been continuously em ployed in any subsection (a) position?\nThe legislative history of the Act is of little help in solving this problem.\nW hat is now \xc2\xa7 201 was introduced by Senator Percy as an amendment to the\nbill during the debate on the floor o f the Senate, 122 Cong. Rec. S 12434\n(Daily ed ., July 26, 1976). Senator Percy\xe2\x80\x99s explanation of the amendment\ncontained the following statement as to its purpose:\n. . . It [the amendment] would place these DEA supervisory positions\non a basis comparable to those at the FBI. Certainly there is a need\nfor greater managerial flexibility and for the ability to move people\nabout at one policy-m aking level in a law enforcement agency of this\nkind. Id.\nThe bill passed by the House did not contain a corresponding provision. The\nConference Committee modified the text of the Percy amendment. The\nconference report, however, does not give any reasons for action taken by the\nconference except to state:\nDrug Enforcement Administration\nThe Senate bill would make certain DEA positions now in the\ncompetitive service into excepted service positions.\nThe House amendment had no parallel provisions.\nThe conference substitute adopts a modified and more restrictive\nversion o f the Senate bill provisions. H. Conf. Rept. 94-1723, p .32.\nIt is our opinion that subsection (c)(2) applies if the employee has served\ncontinuously since the approval o f the Act in any subsection (a) position, and\nhe need not have served continuously in the same position. If it were otherwise,\nthe Administrator could totally deprive an employee of his salary retention\nrights under subsection (d) by the expedient of transferring him from one\nposition to another or by promoting or demoting him. As shown above, the\npurpose o f \xc2\xa7 201 is to enable the Administrator to exercise greater control over\nthe policymaking positions in his agency, and to protect the salary status of\nthose who at the time o f the approval of the Act were already serving in a\nsubsection (a) position. This does require that the employee remain frozen in\nthe position he held at the time o f the enactment of the statute if he is to keep his\nretention rights. Indeed, the very managerial flexibility which the Act is\ndesigned to achieve would be jeopardized by the contrary view. A considerate\n\n24\n\n\x0cAdministrator may well hesitate to reassign or promote an employee if that\naction would result in the loss of the em ployee\xe2\x80\x99s salary retention rights.1\nFor those reasons we conclude that the requirements of paragraph (c)(2) are\nmet if the employee held any\xe2\x80\x94 but not necessarily the same\xe2\x80\x94 subsection (a)\nposition since the enactment of the statute.\nQuestion 3 asks for an interpretation of paragraph (c)(3), in particular the\nphrase \xe2\x80\x9c any reduction in rank or pay (under paragraph (2) or otherw ise).\xe2\x80\x9d\nParagraph (c)(3) reads:\n(3)\nThe provisions of sections 7512 and 7701 of title 5, United\nStates Code, and otherwise applicable Executive orders, shall not\napply with respect to actions taken by the Administrator under\nparagraph (1) or any reduction in rank or pay (under paragraph (2) or\notherwise) of any individual in a position described in subsection(a).\nParagraph (c)(3) removes from the protection of the Veterans Preference Act\n(5 U .S.C . \xc2\xa7\xc2\xa7 7512, 7701) certain employees of DEA serving in subsection (a)\npositions. The first clause exempts actions taken under paragraph (c)(1), that is,\nall adverse personnel actions\xe2\x80\x94 removal, suspensions for more than 30 days,\nfurloughs without pay, or reductions in rank or pay\xe2\x80\x94 affecting those who have\nserved in subsection (a) positions for less than a year. Clause 2 removes from\nthe application of the Veterans Preference Act any reduction in pay or rank\n(under paragraph 2 or otherwise) of any person serving in a subsection (a)\nposition. Reductions in rank or pay under paragraph 2 affect those who have\nserved continuously in a subsection (a) position since the approval of the Act. If\nthe words \xe2\x80\x9c or otherw ise\xe2\x80\x9d were lacking, paragraph (c)(3) would remove from\nthe protection of the Veterans Preference Act those employees holding a\nsubsection (a) position who have served less than a year and those who have\nserved continuously since the approval of the Act. Veterans\xe2\x80\x99 preference,\nhowever, would be continued for the intermediary group, i.e., those who have\nserved for more than a year, but not since the approval o f the statute. There\nappears to be no rational basis for retaining veterans\xe2\x80\x99 preference for that group\nbut to deny it to those who have served for shorter or longer periods. Nor is\nthere anything to indicate that Congress intended to achieve that result. It must\nbe assumed that the words \xe2\x80\x9c or otherw ise\xe2\x80\x9d were designed to extend the denial\nof veterans\xe2\x80\x99 preference protection to those who fall into that intermediary\ngroup. The import of the second clause of paragraph (c)(3), therefore, is to\ndeny veterans\xe2\x80\x99 preference to any subsection (a) employee who is reduced in\nrank or pay, regardless of his length o f service.2\nQuestion 4 asks whether the requirement of continuous employment in\nsubsection (a) position within the meaning of paragraph (c)(2) has been met\nwhere a person has been selected for such a position by the Administrator and\nhas been acting in that position prior to the approval of the Act, but where the\n'Indeed, he might even be reluctant to demote if that action would have the additional result of\ndepriving the em ployee o f his retention rights.\n2W e realize that there is a certain overlap between clauses (I) and (2) o f paragraph (c)(3) since\nclause ( I ) also covers the reduction in rank or pay o f those who have served for less than a year.\n\n25\n\n\x0capproval o f the Civil Service Commission to the appointment was given after\nthat date. The answer to this question affects the em ployee\xe2\x80\x99s entitlement to\nretention pay, which presupposes that he has served continuously in a\nsubsection (a) position since the approval of the Act.\nThis question must be answered in the negative. Pursuant to 5 U .S.C .\n\xc2\xa7 3324, an appointment to a position in grades G S-16, 17, or 18 may be made\nby an agency only on the approval o f the qualifications of the proposed\nappointee by the Civil Service Commission. An official therefore cannot be\nemployed in such a position prior to that date. Service in an acting capacity is\nmerely a \xe2\x80\x9c detail\xe2\x80\x9d (see 5 U .S.C . Ch. 33, Subchapter III), and a person cannot\nreceive the compensation in addition to that of his regular pay for serving in an\nacting capacity in another position. 5 U .S.C . \xc2\xa7 5535. We conclude that formal\nappointment to a position in G S-16, 17, or 18 pursuant to Civil Service\nCommission approval is a prerequisite for fulfilling the requirement of\ncontinuous employm ent since the date o f the approval of the Act and the\nconcomitant entitlem ent to retention pay.\nAppointment to a position in the SR category3 and in GS-15 does not require\nprior approval by the Civil Service Commission; hence, there would appear to\nbe no need for \xe2\x80\x9c acting\xe2\x80\x9d details in connection with those positions. We\ntherefore assume that the fourth question does not arise with respect to such\nappointments. If it does, the answer will depend on the specific circumstances\ninvolved.\nL eon U lm an\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n^The SR category covers the four supergrade positions created by \xc2\xa7 3(b) o f Reorganization Plan\nNo. 1 o f 1968.\n\n26\n\n\x0c"