b'Applicability of 18 U.S.C. \xc2\xa7 205 to Union Organizing\nActivities of Department of Justice Employee\nT he representational bar in 18 U.S.C. \xc2\xa7205 applies to union organizing activities of a\nfederal employee in which he acts as \xe2\x80\x9cagent or attorney\xe2\x80\x9d for other federal employees\nbefore their agency.\nT he definition o f \xe2\x80\x9cagency\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 6 is an expansive one, which establishes a\npresumption that a governmental entity is an agency for purposes of a given criminal\noffense, including offenses involving a conflict of interest, and includes entities in the\nlegislative branch.\nEven if certain provisions in T itle V II of the Civil Service Reform Act (CSRA) specifi\xc2\xad\ncally protect a federal employee\xe2\x80\x99s organizational and representational activities under\nthat A ct, notwithstanding the general bar in \xc2\xa7 205, those provisions do not apply in this\ncase because the employee group seeking recognition is not a \xe2\x80\x9clabor organization\xe2\x80\x9d\nunder the CSRA.\n\nJune 26, 1981\nM EM ORAN DUM OPIN IO N\nFO R THE A C T IN G G E N E R A L COUNSEL,\nO F F IC E O F JU STIC E A SSISTAN CE, RESEA RCH AN D\nSTA TISTICS\nThis responds to your request that we reconsider our views on the\napplicability of 18 U.S.C. \xc2\xa7205 and the implementing Department of\nJustice regulations to Mr. A \xe2\x80\x99s activities as Executive Director of the\nCapitol Employees Organizing G roup (CEOG). Our conclusion in\nthese m emoranda was that \xc2\xa7 205 bars Mr. A from acting as agent or\nattorney before any department, agency, or court on behalf of employ\xc2\xad\nees of the Senate Restaurant in their efforts to organize and bargain\nwith their employer, the Architect o f the Capitol. Mr. A takes issue\nw ith this conclusion on grounds that \xc2\xa7 205 was not intended to prohibit\nthe sort o f activity in which he wishes to engage, and that his activity\nis protected under Title V II of the Civil Service Reform Act of 1978\n(CSRA), 92 Stat. 1111, 1191, 5 U.S.C. \xc2\xa77101 et seq. After a careful\nreview of the statutes at issue, we reaffirm our previous position.\nMr. A \xe2\x80\x99s counsel has suggested that \xc2\xa7 205 should not be construed to\napply to representational activities before organizational entities within\nthe legislative branch such as the Office of the Architect of the Capitol\n(OAC). The argument, we assume, is that the OA C is not an "agency\xe2\x80\x9d\nas that term is used in \xc2\xa7 205. It is true that the legislative history of the\n194\n\n\x0cconflict of interest laws indicates that the representational bar of \xc2\xa7 205\nwas not intended to prohibit services before \xe2\x80\x9cCongress or its commit\xc2\xad\ntees.\xe2\x80\x9d H.R. Rep. No. 748, 87th Cong. 1st Sess. 20 (1961). However, we\ncan find no support for the notion that a similar exemption was in\xc2\xad\ntended to apply to other parts o f the legislative branch. Indeed, the\nexpress extension of the \xc2\xa7 205 representational bar to employees of the\nlegislative branch indicates that Congress did not intend to limit the\nterm \xe2\x80\x9cagency\xe2\x80\x9d to entities within the executive branch.\nMoreover, the term \xe2\x80\x9cagency\xe2\x80\x9d is defined for purposes of Title 18\ngenerally to include\nany department, independent establishment, commission,\nadministration, authority, board or bureau of the United\nStates or any corporation in which the United States has a\nproprietary interest, unless the context shows that such\nterm was intended to be used in a more limited sense.\n18 U.S.C. \xc2\xa76. This Office has in the past taken the position that the\ndefinition of \xe2\x80\x9cagency\xe2\x80\x9d in Title 18 is an expansive one which, in effect,\nestablishes a presumption that a governmental entity is an agency for\npurposes of a given offense, including the conflict of interest statutes. We\nconclude, therefore, that the OAC is an \xe2\x80\x9cagency\xe2\x80\x9d as that term is defined\nin \xc2\xa7 205 and that \xc2\xa7 205 accordingly does apply to representational activi\xc2\xad\nties before that entity.\nA second point raised by Mr. A is that even if \xc2\xa7 205 does apply\ngenerally to representational activities before an agency of the legisla\xc2\xad\ntive branch, the particular activities in which he wishes to engage are\nspecifically protected under Title VII of the CSRA. See 5 U.S.C.\n\xc2\xa7 7102. Therefore, he argues, the more general bar of \xc2\xa7 205 should give\nway. We cannot agree that \xc2\xa7 701 covers Mr. A \xe2\x80\x99s organizing activities\non behalf of the Senate Restaurant employees.\nSection 701 of the CSRA gives all covered employees the right \xe2\x80\x9cto\nform, join, or assist any labor organization.\xe2\x80\x9d An employee\xe2\x80\x99s rights\nunder this section include the right\nto act for a labor organization in the capacity of a repre\xc2\xad\nsentative and the right, in that capacity, to present the\nviews of the labor organization to heads of agencies and\nother officials of the executive branch of the Government,\nthe Congress, or other appropriate authorities . . . .\nWhile Mr. A is concededly an \xe2\x80\x9cemployee\xe2\x80\x9d enjoying the protections\nafforded by \xc2\xa7 701, see 5 U.S.C. \xc2\xa7 7103(a)(2), the CEOG does not appear\nto be a \xe2\x80\x9clabor organization\xe2\x80\x9d as that term is defined in Title V II of the\n195\n\n\x0cCSRA. See 5 U.S.C. \xc2\xa7 7103(a)(4).1 Accordingly, organizational and\nrepresentational activities in its behalf are not protected under \xc2\xa7 701.2\nThus, even if Mr. A is correct that activities which are protected under\n\xc2\xa7 701 would escape the \xc2\xa7 205 bar, this argument avails him nothing in\nthis case.\nFinally, Mr. A argues that \xc2\xa7 205 was not intended to prohibit the sort\nof representational activities in which he wishes to engage in behalf of\nthe C EO G . While it is true that the legislative history of \xc2\xa7 205 makes\nno specific mention of union organizing or representational activities,\nwe cannot assume that Congress by its silence intended to enact an\nexception to the clear terms o f the statutory prohibition\xe2\x80\x94a prohibition\nwhich applies broadly to \xe2\x80\x9cany proceeding, application, request for a\nruling or other determination, contract, claim, controversy, charge,\naccusation, arrest, or other particular matter in which the United States\nis a party or has a direct and substantial interest . . . .\xe2\x80\x9d (Emphasis\nadded.) W e have been provided no information which would permit\nreconsideration o f our earlier conclusion that at least some of Mr. A \xe2\x80\x99s\nproposed representational activities would be included on this compre\xc2\xad\nhensive list. N or do we understand Mr. A to contend that his role\nwould not be that of an \xe2\x80\x9cagent or attorney\xe2\x80\x9d as those terms are used in\nthe statute. W e therefore have no basis on w hich to change our earlier\nconclusion that \xc2\xa7 205 prohibits at least some of the representational\nactivities he wishes to undertake.\nWe stress that \xc2\xa7 205 does not bar M r. A from aiding and assisting the\nSenate employees in their efforts to organize, as long as he does not act\nas their \xe2\x80\x9cagent or attorney.\xe2\x80\x9d In addition, we should point out that \xc2\xa7 205\ncontains an explicit exception which would allow an officer or em\xc2\xad\nployee to aid or assist \xe2\x80\x9cany person w ho is the subject of disciplinary,\nloyalty, o r other personnel administration proceedings in connection\nwith those proceedings.\xe2\x80\x9d It may well be that some of the matters in\nwhich the C E O G Executive D irector would represent Senate employ\xc2\xad\nees would fall into the category of a \xe2\x80\x9cpersonnel administration proceed\xc2\xad\n1A \xe2\x80\x9clabor organization\xe2\x80\x9d under T itle V II o f the CSR A is defined as \xe2\x80\x9can organization composed in\nw hole o r in part of employees . . . .\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7103(a)(4). The term \xe2\x80\x9cemployee\xe2\x80\x9d in turn is defined as\nan individual \xe2\x80\x9c employed in an agency.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7103(a)(2). In contrast to the expansive definition of\n\xe2\x80\x9cagency\xe2\x80\x9d in the Criminal Code, an \xe2\x80\x9c agency\xe2\x80\x9d is narrow ly defined for purposes of Title VII coverage\nas \xe2\x80\x9can Executive agency\n. the Library of Congress, and the Governm ent Printing Office . . . \xe2\x80\x9d 5\nU.S.C. \xc2\xa7 7103(a)(3). It is our understanding that the CEO G is composed exclusively of employees of\nthe Senate Restaurant, who are em ployed by and subject to the administration and supervision of the\nA rchitect of the Capitol. If, as w e conclude, the O A C is not an \xe2\x80\x9cagency\xe2\x80\x9d for purposes of Title VII\ncoverage, the Senate Restaurant employees are not \xe2\x80\x9c employees\xe2\x80\x9d and the C E O G accordingly is not a\n\xe2\x80\x9c labor organization\xe2\x80\x9d under the A ct. Mr. A might have a valid argument if the definition of the term\n\xe2\x80\x9cagency\xe2\x80\x9d w ere the same in Title V II and in Title 18, but that is not the case.\n2 We note that the National L abor Relations Board has reached a similar conclusion with respect to\nthe analogous provisions of the N ational Labor Relations Act (NLRA). See Capital Times Co., 234\nN.L.R.B. 309 (1978) (covered em ployee\'s refusal to cross picket line established by non-covered\nemployees not protected activity under \xc2\xa7 7 of the NLRA).\n\n196\n\n\x0cing.\xe2\x80\x9d We leave it to you to discuss with Mr. A which of his activities may\nbe permissible under one or the other of these provisions.\nT h e o d o r e B. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n197\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before\nNon-Federal Agency\n18 U.S.C. \xc2\xa7 205(a)(2), w hich bars a Federal em ployee from acting as an agent or attorney before\nany \xe2\x80\x9c agency . . . in connection with any covered m atter in w hich the U nited States is a party\nor has a direct and substantial interest,\xe2\x80\x9d applies only to Federal agencies and does not apply to\nstate agencies o r agencies o f the D istrict o f Colum bia.\n\nJanuary 3, 2000\nM\n\nem orandum\n\nO p in io n\n\nfo r t h e\n\nD ir e c t o r\n\nD e p a r t m e n t a l E t h i c s O f f ic e\nD epartm ent\n\nof\n\nJ u s t ic e\n\nYou have asked whether a state agency or an agency of the District of Columbia\ncomes within the term \xe2\x80\x9c agency\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 205(a)(2), which, among other\nthings, bars a Federal employee from acting as an agent or attorney before any\n\xe2\x80\x9c agency . . . in connection with any covered matter in which the United States\nis a party or has a direct and substantial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(2) (1994).\nWe conclude that \xe2\x80\x9c agency\xe2\x80\x9d in that provision encompasses only Federal agencies\nand does not apply to state agencies or agencies of the District of Columbia.\nI.\n\nSection 205(a)(2) provides as follows:\n(a) Whoever, being an officer or employee of the United States\nin the executive, legislative, or judicial branch of the Government\nor in any agency of the United States, other than in the proper\ndischarge o f his official duties \xe2\x80\x94\n\n(2) acts as agent or attorney for anyone before any depart\xc2\xad\nment, agency, court, court-martial, officer, or civil, military,\nor naval commission in connection with any covered matter\nin which the United States is a party or has a direct and\nsubstantial interest;\nshall be subject to the penalties set forth in section 216 of this title.\n18 U.S.C. \xc2\xa7 205(a)(2). Congress enacted this provision in 1962 as part of Pub.\nL. No. 87-849, 76 Stat. 1119, 1122, a wholesale revision of the conflict-of-interest\n13\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nlaws. Section 205 was directed at conflicts of interest arising from the \xe2\x80\x9c oppor\xc2\xad\ntunity for the use of official influence.\xe2\x80\x9d See H.R. Rep. No. 87-748, at 21 (1961);\nsee also Bayless Manning, Federal Conflict o f Interest Law 85 (1964) ( \xe2\x80\x9c The\nemphasis of Section 205 is upon action in a representative capacity, particularly\nin a situation involving direct confrontation between the government employee\nand other government employees.\xe2\x80\x9d ).\nYou have asked whether this provision prohibits a Federal government\nemployee from engaging in representation in connection with a covered matter\nbefore a state agency or an agency of the District of Columbia, or whether the\nprohibition only applies to representation before a Federal agency. In a prior\nopinion, this Office concluded that the term \xe2\x80\x98\xe2\x80\x98court\xe2\x80\x99\xe2\x80\x99 in the same provision covers\nstate as well as Federal courts. S ee Letter for Anthony L. Mondello, General\nCounsel,- United States Civil Service Commission, from William H. Rehnquist,\nAssistant Attorney General, Office of Legal Counsel at 1 (1970) (\xe2\x80\x9c 1970\nOpinion\xe2\x80\x9d ) ( \xe2\x80\x9c The principle that stands clear in 18 U.S.C. 205 is that any federal\nor D.C. employee is precluded from acting as an attorney to prosecute a claim\nagainst the United States or to represent anyone in any court whatever, federal,\nstate or otherwise, if the United States is a party to the proceeding or if a direct\nand substantial interest of the United States is involved in the proceeding.\xe2\x80\x9d ).1\nThe question before us is whether to give a similar interpretation to the term\n\xe2\x80\x9c agency\xe2\x80\x9d in the provision.\n\nn.\nA.\n\xe2\x80\x9c [W]e begin as we do in any exercise of statutory construction with the text\nof the provision in question, and move on, as need be, to the structure and purpose\nof the Act in which it occurs.\xe2\x80\x9d N ew York State Conf. o f Blue Cross & Blue\nShield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995). Because \xc2\xa7205 itself\ndoes not define \xe2\x80\x9c agency\xe2\x80\x9d or offer clear guidance as to its meaning, we turn to\nthe statutory scheme in which it is found.\n\xe2\x80\x9c Agency\xe2\x80\x9d is defined in 18 U.S.C. \xc2\xa7 6 as follows:\nAs used in this title:. . . .\nThe term \xe2\x80\x9c agency\xe2\x80\x9d includes any department, independent\nestablishment, commission, administration, authority, board or\n1The specific question raised in the 1970 Opinion was whether District o f Columbia and Federal government\nattorneys could appear on a volunteer basis in District o f Columbia courts to represent indigent persons asserting\nclaims against the District o f Columbia Based on the language and legislative history of the provision, Assistant\nAttorney General Rehnquist concluded that such representation is barred by \xc2\xa7205 because that provision\xe2\x80\x99s reference\nto matters \xe2\x80\x9c in which the United States is a party or has a direct and substantial interest\xe2\x80\x9d includes claims in which\nthe District o f Columbia is a party or has a direct and substantial interest. See 1970 Opinion at 2.\n\n14\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before Non-Federal Agency\n\nbureau o f the United States or any corporation in which the United\nStates has a proprietary interest, unless the context shows that such\nterm was intended to be used in a more limited sense.\n18 U.S.C. \xc2\xa76 (1994). By its terms, this definition applies to the word \xe2\x80\x9c agency\xe2\x80\x9d\nin 18 U.S.C. \xc2\xa7 205(a), thereby limiting \xc2\xa7 205(a) to Federal agencies. Section 6\napplies to the use of the term throughout title 18 unless the context indicates\na more limited definition; it does not, in any event, permit a broader application\nto agencies outside the Federal government. Although \xc2\xa7 205 is part of an amend\xc2\xad\nment to title 18, added after the definition of \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 6 , see ch. 645, 62\nStat. 683, 685 (1948) (definition of \xe2\x80\x9c agency\xe2\x80\x9d ); Pub. L. No. 87-849, 76 Stat.\nat 1122 (adding \xc2\xa7 205), the general rule of statutory construction is that a provision\nis to be read in its context and an amendment and the original provisions are\nto be read together \xe2\x80\x9c \xe2\x80\x98as parts of an integrated whole.\xe2\x80\x99 \xe2\x80\x9d Republic Steel Corp.\nv. Costle, 581 F.2d 1228, 1232 (6th Cir. 1978) (quoting Markham v. Cabell, 326\nU.S. 404, 411 (1945)), cert, denied, 440 U.S. 909 (1979); see also 1A Norman\nJ. Singer, Sutherland on Statutory Construction \xc2\xa722.35 (5th ed. 1991) (\xe2\x80\x9c Singer\xe2\x80\x9d )\n( \xe2\x80\x9c The act or code as amended should be construed as to future events as if it\nhad been originally enacted in that form. Provisions in the unamended sections\napplicable to the original section are applicable to the section as amended in so\nfar as they are consistent . . . . [and] [w]ords used in the unamended sections\nare considered to be used in the same sense in the amendment.\xe2\x80\x9d ) (footnotes\nomitted).\nThis conclusion comports with the practice of this Office, which has often relied\non \xc2\xa76 as defining \xe2\x80\x9c agency\xe2\x80\x9d for purposes of the conflict-of-interest provisions.\nSee, e.g., Applicability o f 18 U.S.C. \xc2\xa7 207(a) to the Union Station Development\nCorporation, 12 Op. O.L.C. 84, 84 (1988) ( \xe2\x80\x9c In the past, we have looked to the\n\ndefinition of \xe2\x80\x98agency of the United States\xe2\x80\x99 in 18 U.S.C. \xc2\xa7 6 to determine if an\nentity should be regarded as the United States for the purposes of the conflict\nof interest laws.\xe2\x80\x9d ); Applicability o f 18 U.S.C. \xc2\xa7 2 0 5 to Union Organizing Activities\no f Department o f Justice Employee, 5 Op. O.L.C. 194, 195 (1981) (noting that\nin \xc2\xa76 \xe2\x80\x9c the term \xe2\x80\x98agency\xe2\x80\x99 is defined for purposes of Title 18 generally\xe2\x80\x9d ); see\nalso Government A ttorneys\xe2\x80\x99 Participation as Plaintiffs in a Suit Against the Office\no f Personnel Management, 5 Op. O.L.C. 74, 75 (1981) (\xe2\x80\x9c Generally, [the second\n\nclause of \xc2\xa7 205] is interpreted to prohibit representational activity such as appear\xc2\xad\nances in court, signing pleadings or letters, and direct contact with a federal\nagency on behalf of [a client].\xe2\x80\x9d ) (emphasis added).2\n2Our conclusion also comports with relevant determinations o f the Office of Government Ethics ( \xe2\x80\x9c O GE\xe2\x80\x9d ) See,\ne.g., Letter to an Employee, 90 X 6, 1990 WL 485684 (OGE) (Apr 4, 1990) (\xc2\xa7205 prohibits Federal employee\nfrom representation before Federal agency but not before state or local agency); see also Memorandum from Stephen\nD Potts, Director, to D esignated Agency Ethics Officials. General Counsels, and Inspectors General Regarding\nAmendments to 18 U S.C \xc2\xa7 2 0 5 and 18 U.S.C \xc2\xa7207, 96 X 16, 1996 WL 931725 (OGE) (Aug 21, 1996) ( \xe2\x80\x9c Section\n205 of title 18, United States Code, prohibits an executive branch employee from acting as agent or attorney\nContinued\n\n15\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nWe might well come to a different conclusion if there were specific language\nin \xc2\xa7 205(a) manifesting an intent to give the term broader scope than the plain\nmeaning of the statutory definition o f \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa76.3 Section 205(a), however,\ncontains no explicit language broadening the definition of agency.\nIt also might be argued that the presence of the modifier \xe2\x80\x9c of the United States\xe2\x80\x9d\nwhere the term \xe2\x80\x9c agency\xe2\x80\x9d appears in the prefatory language in \xc2\xa7 205(a) (referring\nto the covered officers and employees of Federal agencies) and the absence of\nthat modifier in \xc2\xa7 205(a)(2)\xe2\x80\x99s reference to \xe2\x80\x9c any department, agency, court\xe2\x80\x9d (refer\xc2\xad\nring to the prohibited venues of representation) makes \xc2\xa7 205(a)(2) applicable to\nactions before state agencies. Given that Congress included an express limitation\nto Federal agencies in the introductory portion of the statutory subsection, one\nmight infer that the absence of any such express limitation in \xc2\xa7 205(a)(2) suggests\nthat \xc2\xa7 205(a)(2) refers to a broader class of entities than does \xc2\xa7 205(a), perhaps\nincluding state and local agencies. To conclude otherwise would arguably render\nthe words \xe2\x80\x9c of the United States\xe2\x80\x9d surplusage. See International Primate Protection\nLeague v. Adm inistrators ofTulane Educ. Fund, 500 U.S. 72, 80 (1991) (referring\nto general statutory principle that \xe2\x80\x9c each word in a statute should be given\neffect\xe2\x80\x9d ); see also 2A Singer at \xc2\xa7 46.06.\nW e do not believe, however, that such an inference is warranted. Although the\nlegislative history offers little guidance as to the intent of the drafters on the scope\nof this term, it contains nothing indicating that inclusion of \xe2\x80\x98\xe2\x80\x98of the United States\xe2\x80\x99\xe2\x80\x99\nin paragraph (a) and the exclusion of that modifier in paragraph (a)(2) reflects\nan advertent choice to delineate different groups of entities. A number of the prior\nversions of the bill did include definitions of \xe2\x80\x9c agency\xe2\x80\x9d applicable to \xc2\xa7205. Some\nof these expressly limited \xe2\x80\x9c agency\xe2\x80\x9d to executive branch agencies, see Federal\nConflict o f Interest Legislation: Hearings on H.R. 302, H.R. 3050, H.R. 3411,\nbefore any Federal department, agency, or court in connection with [a covered matter]\n\xe2\x80\x9d ), Letter to the General\nCounsel o f a Department, 96 X 11, 1996 WL 931720, at 2 (OGE) (July 5, 1996) ( \xe2\x80\x9c Subject to certain exceptions,\n[\xc2\xa7 205] prohibits a Government employee . . from acting as agent or attorney for anyone in any claim against\nthe U nited States or from acting as agent or attorney for anyone before any department, agency, or court of the\nUnited States . .\n\xe2\x80\x9d ), Letter to a Designated Agency Ethics Official\xe2\x80\x9e 95 X 2, 1995 WL 855428 (OGE) (Mar.\n13, 1995) (same).\nOn the other hand, although this issue has never been addressed directly by case law, there are conflicting dicta\nin judicial opinions that discuss \xc2\xa7205 more generally. Compare Van EE v. Environmental Protection Agency, 55\nF. Supp. 2d 1, 12 (D.D.C. 1999) (concluding that \xc2\xa7205 prohibits certain conduct before Federal agencies and is\nconstitutional and noting that \xe2\x80\x9c [under \xc2\xa7205] plaintiff!, a Federal employee,] is free to represent [non-governmental\norganizations] in forums other than the federal government, such as state and local government\xe2\x80\x9d ), with Gray v.\nRhode Island D e p \xe2\x80\x99t o f Children, Youth and Families, 937 F. Supp. 153, 158 (D. R.I 1996) (reversing disqualification\no f attorney for state agency from participating in litigation against another state agency based on state ethics rules\nand observing that, under Federal law, \xe2\x80\x9c [\xc2\xa7205] prohibits an employee of the United States from acting as an attorney\nfor anyone before any forum in which the United States is a party or has a substantial interest\xe2\x80\x9d )\n3 It would be a different case, for example, if Pub. L No. 87-849, enacting \xc2\xa7205 in 1962, contained a definition\no f \xe2\x80\x9c agency\xe2\x80\x9d that differed from the definition in \xc2\xa7 6 so as to present a situation where \xe2\x80\x9c \xe2\x80\x98the new provisions and\nthe\n. unchanged portions o f the onginal section cannot be harmonized, [in which case] the new provisions should\nprevail as the latest declaration o f the legislative w ill.\xe2\x80\x99 \xe2\x80\x9d American Airlines, Inc. v. Remis Indus, Inc., 494 F.2d\n196, 200 (2d Cir. 1974) (quoting 1A Singer \xc2\xa722.34). The conflict-of-interest provisions in chapter 11 of title 18,\nhowever, although including some definitions, see 18 U.S C \xc2\xa7201 (1994), do not contain a new definition of\n\xe2\x80\x9c agency.\xe2\x80\x9d Other terms in the provision, notably \xe2\x80\x9c court,\xe2\x80\x9d are not defined in 18 U S C \xc2\xa7 6 and therefore may be\nread more broadly\n\n16\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before Non-Federal Agency\n\nH.R. 3412, and H.R. 7139 Before the Antitrust Subcomm. o f the House Comm,\non the Judiciary, 87th Cong. 5 (1961) (\xe2\x80\x9c Subcommittee Hearings\xe2\x80\x9d ) (reprinting\n\n\xc2\xa72(a) of H.R. 3050), or defined \xe2\x80\x9c agency\xe2\x80\x9d in the bill by express reference to\n18 U.S.C. \xc2\xa76, see Subcommittee Hearings at 23 (reprinting \xc2\xa72 of H.R. 7139);\nid. at 60 (discussing \xc2\xa72 of proposed bill entitled \xe2\x80\x9c Executive Employees\xe2\x80\x99 Stand\xc2\xad\nards Act\xe2\x80\x9d ). The deletion of any such definition or express cross-reference in the\nfinal version appears to reflect the recognition that a definition (or explicit ref\xc2\xad\nerence to a definition) of \xe2\x80\x98 \xe2\x80\x98agency\xe2\x80\x99\xe2\x80\x99 in the conflict-of-interest bill was unnecessary\ngiven the existing definition in the criminal code.4 That deletion thus should not\nbe understood as an effort to broaden the definition of \xe2\x80\x9c agency.\xe2\x80\x9d Moreover, the\npurpose of including a definition of \xe2\x80\x9c agency\xe2\x80\x9d in earlier versions of the bill was\nto clarify which Federal agencies were to be covered, not to address coverage\nof non-Federal entities.5\nAdditionally, the House Report on H.R. 8140, in its discussion of \xc2\xa7205,\ndescribes the provision as \xe2\x80\x9c prohibit[ing] officers and employees of the Govern\xc2\xad\nment from acting as agent or attorney for anyone before a Federal agency or\na court in connection with any matter in which the United States has a direct\nand substantial interest.\xe2\x80\x9d H.R. Rep. No. 87-748, at 9-10 (1961) (emphasis\nadded).6 It is unclear why the same reference does not appear in the Senate Report\nin the next session on the same bill.7 In any event, \xc2\xa7205 in H.R. 8140 \xe2\x80\x94 the\nbill which the House Report described as prohibiting representation before \xe2\x80\x9c a\nFederal agency\xe2\x80\x9d \xe2\x80\x94 included \xe2\x80\x9c of the United States\xe2\x80\x9d after \xe2\x80\x9c agency\xe2\x80\x9d in paragraph\n(a) but not in paragraph (a)(2); the language in the House Report thus indicates\nASee, e.g., Subcommittee Hearings at 45 (analyzing H R. 3050 and noting that \xe2\x80\x9c (Section 2(a)] contains a definition\nof the word \xe2\x80\x98Agency\xe2\x80\x99 as used in the bill. Although the definition used may suffice, the terms involved have already\nbeen defined in section 6 o f title 18, United States Code. In pracuce this last section has operated satisfactorily\nIn the circumstances it would be desirable to model [the definition] upon 18 U S C 6 \xe2\x80\x9d ) Arguably, cross-referencing\n\xc2\xa76 in \xc2\xa7205 could have unnecessarily cast doubt on the applicability o f \xc2\xa7 6 to other provisions of Title 18 that\nlack any such express cross-reference\n5See, e.g.. Subcommittee Hearings at 23 (reprinting \xc2\xa7 2 o f H.R. 7139) ( \xe2\x80\x9c The terms \xe2\x80\x98department\xe2\x80\x99 and \xe2\x80\x98agency\xe2\x80\x99\nshall have the meanings ascnbed to them in section 6 o f title 18, United States Code, but in no event shall they\nmean any agency o f the legislative or judicial branch.\xe2\x80\x99\xe2\x80\x99), id. at 60 (discussing \xc2\xa7 2 of proposed bill entitled \xe2\x80\x9c Executive\nEmployees\xe2\x80\x99 Standards A ct\xe2\x80\x99\xe2\x80\x99) ( \xe2\x80\x9c \xe2\x80\x98Department\xe2\x80\x99 and \xe2\x80\x98agency\xe2\x80\x99 are defined as in 18 U S.C. 6. These terms are intended\nto include the independent regulatory agencies.\xe2\x80\x99\xe2\x80\x99).\n6The version o f the provision discussed in that report was substantially similar to the version that was enacted\nIt provided as follows\nWhoever, being an officer or employee o f the United States in the executive, legislative, or judicial\nbranch o f the Government, or in any agency of the United States, including the District of Columbia,\notherwise than in the proper discharge o f his official duties \xe2\x80\x94\n(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or\nany civil, military, or naval commission in connection with any proceeding, application, request for a ruling\nor other determination, contract, claim, controversy, charge, accusation, arrest, or other matter in which\nthe United States is a party or has a direct and substantial interest \xe2\x80\x94\nShall be fined not more than $10,000 or imprisoned for more than two years, or both.\nSee H.R. Rep. No. 87-748, at 39\n^See S. Rep No 87-2213, at 11 (1962), reprinted in 1962 U S C.C A N 3852, 3859 ( \xe2\x80\x9c Section 205 . . extends\nits bar against a Government employee\xe2\x80\x99s pnvate representational activities to all matters in which the United States\nis a party or has an interest Thus the section includes within its scope applications for licenses or other privileges,\ncriminal proceedings, and other important matters not now covered.\xe2\x80\x99\xe2\x80\x99).\n\n17\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthat use of the modifier \xe2\x80\x9c of the United States\xe2\x80\x9d in one part should not be read\nto suggest that a broader meaning of \xe2\x80\x9c agency\xe2\x80\x9d applies whenever that modifier\nis absent. Given the lack of explicit evidence of contrary intent in the legislative\nhistory or the text of \xc2\xa7205, we do not believe that the inferences from the use\nof modifiers in \xc2\xa7 205 is sufficient to overcome the clear directive of \xc2\xa7 6 that\n\xe2\x80\x9c agency\xe2\x80\x9d as used in \xc2\xa7 205(a) covers \xe2\x80\x9c agencies of the United States\xe2\x80\x9d and not\na broader class of agencies which might include state agencies.\nB.\nW hether \xc2\xa7 205(a)(2) prohibits representation by United States government\nemployees before an agency of the District of Columbia presents a closer question.\nSection 205 is structured so that the first subsection, 205(a), sets forth a prohibi\xc2\xad\ntion on activities by Federal employees. The second subsection, 205(b), sets forth\nthe prohibition on District of Columbia employees. Because it, too, uses the term\n\xe2\x80\x9c agency,\xe2\x80\x9d and does so in a context that one might assume includes agencies\nof the District of Columbia, analysis of \xc2\xa7 205(b)(2) assists in determining the scope\nof \xc2\xa7 205(a)(2). Subsection 205(b)(2) states:\nWhoever, being an officer or employee of the District of Columbia\nor an officer or employee of the Office of the United States\nAttorney for the District o f Columbia, otherwise than in the proper\ndischarge of official duties \xe2\x80\x94\n\n(2) acts as agent or attorney for anyone before any depart\xc2\xad\nment, agency, court, officer, or commission in connection\nwith any covered matter in which the District of Columbia\nis a party or has a direct and substantial interest;\nshall be subject to the penalties set forth in section 216 of this title.\n18 U.S.C. \xc2\xa7 205(b) (1994).\nThe definition of \xe2\x80\x9c agency\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 6 \xe2\x80\x94 which restricts an \xe2\x80\x9c agency\xe2\x80\x9d\nfor purposes of that title to entities \xe2\x80\x9c of the United States\xe2\x80\x9d \xe2\x80\x94 does not specify\nwhether \xe2\x80\x9c of the United States\xe2\x80\x9d encompasses the District of Columbia. The legis\xc2\xad\nlative history is unhelpful on this point. In light of this ambiguity, there are a\nnumber of possible interpretations of \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a) and (b).8 Because the\n8 For example, if \xe2\x80\x9c o f the United Slates\xe2\x80\x9d as used in \xc2\xa7 6 includes the District of Columbia, it could be that \xc2\xa7 205(a)\nand \xc2\xa7 205(b) would prohibit representation before both Federal and District o f Columbia agencies by either Federal\nor District o f Columbia employees, the form er in covered matters in which the United States \xe2\x80\x9c is a party or has\na direct and substantial interest,\xe2\x80\x9d the latter in covered matters in which the District of Columbia \xe2\x80\x9c is a party or\n\n18\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before Non-Federal Agency\n\ntext and legislative history of \xc2\xa76, as well as the text of \xc2\xa7205, offer no clear\nanswer, we turn to the structure and legislative history of \xc2\xa7205. We conclude\nthat the best interpretation is that \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a) applies only to Federal\nagencies while \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(b) applies only to District of Columbia agen\xc2\xad\ncies. While an interpretation giving the same term different meanings in different\nparts of the same provision ordinarily would be disfavored under canons of statu\xc2\xad\ntory construction, we conclude that the structure and legislative history o f \xc2\xa7205,\ntaken in conjunction with the text of \xc2\xa76, compels different constructions of the\nterm \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a) and \xc2\xa7 205(b).\nSection 205 contains a list of entities before which employees may not engage\nin representational activities. The list of entities in \xc2\xa7 205(a) is different from the\nlist in \xc2\xa7 205(b). The entities that are not included in \xc2\xa7 205(b)\xe2\x80\x94 \xe2\x80\x9c court[s]-martial\xe2\x80\x9d\nand \xe2\x80\x9c civil, military, or naval\xe2\x80\x9d commissions \xe2\x80\x94 are, typically, solely Federal enti\xc2\xad\nties. This suggests that the entities listed in \xc2\xa7 205(a) are intended to be Federal\ngovernment entities while those listed in \xc2\xa7 205(b) are intended to be District of\nColumbia government entities.\nThis interpretation is also supported by the minimal legislative history\naddressing the question whether \xc2\xa7 205 applies to District of Columbia entities.\nPrior to 1989, the text of \xc2\xa7 205 did not contain the current lettered paragraphs\ndifferentiating between applicability to Federal employees and District of\nColumbia employees. To the contrary, the earlier version of \xc2\xa7205 stated that,\nat least with regard to the question of which employees were covered by the\nprohibition, \xe2\x80\x9c agency of the United States\xe2\x80\x9d included the District of Columbia.\nThe 1988 version, like the original 1962 version of \xc2\xa7205, see Pub. L. No. 87849, 76 Stat. at 1122, provided as follows:\nWhoever, being an officer or employee of the United States in the\nexecutive, legislative, or judicial branch of the Government, or in\nany agency o f the United States, including the D istrict o f Columbia,\n\notherwise than in the proper discharge of his official duties \xe2\x80\x94\n\nhas a direct and substantial interest \xe2\x80\x9d O r one could conclude that the context of the prohibition in \xc2\xa7 205(b), applying\nas it does only to District o f Columbia employees, shows that the term \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7205(b) \xe2\x80\x9c was intended to\nbe used in a more limited sense,\xe2\x80\x9d 18 U S C. \xc2\xa76, and thus applies only to representation before District of Columbia\nagencies Under such an interpretation, Federal employees would be prohibited from representational activities before\nboth Federal and District o f Columbia agencies in covered matters where the United States \xe2\x80\x9c is a party or has a\ndirect and substantial interest\xe2\x80\x9d under \xc2\xa7 205(a)(2) but District of Columbia employees would only be prohibited from\nrepresentational activities before District o f Columbia agencies in covered matters where the District of Columbia\n\xe2\x80\x9c is a party or has a direct and substantial interest\xe2\x80\x9d under \xc2\xa7 205(b)(2). A third possibility is that, although \xe2\x80\x9c of\nthe United States\xe2\x80\x9d in \xc2\xa7 6 includes both Federal and District o f Columbia entities, the context o f \xc2\xa7 205(a) shows\nthat the prohibition therein is intended to reach only the more limited class of Federal agencies while the context\no f \xc2\xa7 205(b) shows that it is intended to reach only the more limited class of District of Columbia agencies. It is\nalso possible that \xe2\x80\x9c o f the United States\xe2\x80\x9d as used in \xc2\xa7 6 does not reach the District of Columbia at all, in which\ncase \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a) would reach only Federal agencies while \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(b) would either only reach\nFederal, and not District o f Columbia agencies, or would reach District of Columbia agencies based on the theory\nthat \xc2\xa7 205(b) is an anomalous provision to which \xc2\xa7 6 for some reason is inapplicable.\n\n19\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n(2) acts as agent or attorney for anyone before any department,\nagency, court, court-martial, officer, or any civil, military, or naval\ncommission in connection with any proceeding, application, request\nfor a ruling or other determination, contract, claim, controversy,\ncharge, accusation, arrest, o r other particular matter in which the\nUnited States is a party or has a direct and substantial interest \xe2\x80\x94\nShall be fined not more than $10,000 or imprisoned for not more\nthan two years, or both.\n18 U.S.C. \xc2\xa7205 (1988) (emphasis added); see also H.R. Rep. No. 87-748, at\n39 (quoting substantially similar language in proposed bill setting forth original\nversion o f provision).\nThe Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1750,\namended that provision to make it substantially similar to the current one, sepa\xc2\xad\nrating into distinct sections the prohibitions on Federal employees and District\nof Columbia employees. The little authoritative legislative history that there is\nregarding the separation of the provisions affecting Federal employees and District\nof Columbia employees supports the conclusion that it creates prohibitions for\nFederal employees with regard to Federal agencies and District of Columbia\nemployees with regard to District of Columbia agencies. In the Report of the\nBipartisan Task Force on Ethics on H.R. 3660, which eventually was enacted\nas Pub. L. No. 101-194, the section-by-section analysis notes that the bill amends\n\xc2\xa7 205 \xe2\x80\x98\xe2\x80\x98to treat officers and employees of the District of Columbia government\nseparately from officers and employees of the Federal Government in the prohibi\xc2\xad\ntion against acting as agent or attorney . . . for anyone in a matter before a Fed\xc2\xad\neral agency in the case of Federal employees, or a District government agency\nin the case of District employees.\xe2\x80\x9d 135 Cong. Rec. 30,740, 30,757 (1989).\nOther commentary indicates that the amendment was intended to remedy a per\xc2\xad\nceived problem with the existing statute, which precluded Federal employees from\nappearing in District of Columbia fora. The Administration\xe2\x80\x99s proposed bill,\nalthough not adopted in its entirety, contained essentially the same language\namending \xc2\xa7205 as was eventually included in the final legislation. In his testi\xc2\xad\nmony, Acting Associate Attorney General Joseph Whitley explained the proposed\nchange to \xc2\xa7 205 as follows:\nTurning to yet another area of concern to government employees\nwho live in the District o f Columbia, the President\xe2\x80\x99s bill removes\na senseless impediment to their taking a full part in affairs of con\xc2\xad\ncern to their local neighborhoods. 18 U.S.C. 205 is a statute of\nfairly ancient vintage which prohibits all federal employees \xe2\x80\x94\nincluding legislative staff, for example \xe2\x80\x94 from representing anyone\n20\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before Non-Federal Agency\n\nbefore a federal or District of Columbia agency except in the\nperformance of official duties. . . . The prohibition dates from the\npre-home rule period for the District. It is a unique burden that\nfalls on federal employees who reside in the city of Washington\nand is not shared by their fellow workers who live in any other\nstate. Section 111 o f the President\'s bill would end this unjustifiable\ndiscrimination and allow federal employees to appear in a rep\xc2\xad\nresentative capacity before District o f Columbia agencies. The rep\xc2\xad\nresentation would, o f course, have to be without charge and con\xc2\xad\ncern a matter unrelated to the em ployee\xe2\x80\x99s official responsibilities.\nEffects o f Federal Ethics Restrictions on Recruitment and Retention o f Employees:\nHearing Before the Subcomm. on Human Resources o f the House Comm, on Post\nOffice and Civil Service, 101st Cong. 35, 45 (1989) (statement of Joe D. Whitely,\n\nActing Assoc. Attorney General) (emphasis added). This view is echoed in the\nMarch 1989 Report of the President\xe2\x80\x99s Commission on Federal Ethics Law Reform\nwhich recommended the same change to \xc2\xa7 205:\nAs presently written, 18 U.S.C. \xc2\xa7\xc2\xa7203 and 205 prohibit all offi\xc2\xad\ncers and employees o f the federal government and the D istrict o f\nColumbia government from appearing before federal courts and\nagencies and entities o f the D istrict government. The theory behind\n\n\xc2\xa7\xc2\xa7 203 and 205 is that an employee should serve only one master\nand should not represent another entity against his primary\nemployer. The laws do not reflect the current separate statutory\nstatus of the District government, however, and have the effect of\nprecluding federal government employees from participating in out\xc2\xad\nside charitable activities such as providing pro bono legal services\nto the poor in local courts. Another unfortunate effect is that law\nstudents who work as paralegals or clerks in federal or District\ngovernment agencies are often precluded from participating in clin\xc2\xad\nical legal programs sponsored by their law schools.\nTo Serve With Honor: Report o f the President\xe2\x80\x99s Commission on Federal Ethics\nLaw Reform 116 (1989) (emphasis added) (\xe2\x80\x9c Commission Report\xe2\x80\x9d ).9 The\n\nCommission then proceeds to voice its agreement with the suggestion of the Office\nof Government Ethics that \xe2\x80\x9c if there is to be any coverage of District of Columbia\nemployees, these sections be amended so that federal employees are prohibited\n9 The statement in the quoted text that the theory behind \xc2\xa7205 is \xe2\x80\x9c that an employee should serve only one master\nand should not represent another entity against his primary em ployer" might lead to the conclusion that Federal\nemployees should be prohibited from all covered representational activities under \xc2\xa7 205(a), even in District of\nColumbia agencies. However, other language in the Commission Report (discussed in the text, infra) disputes that\nconclusion.\n\n21\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nonly from appearing before federal agencies and courts, and D istrict o f Columbia\nem ployees are proh ibited only fro m appearing before D istrict agencies and\ncourts." Id. (emphasis added). It recommends that \xc2\xa7 205\n\nbe amended so that [it] (1) no longer precludefs] employees of the\nDistrict of Columbia government from appearing before federal\nagencies and courts, [and] (2) no longer preclude[s] most federal\nemployees from appearing before District of Columbia agencies.\nId. at 115.10 While these sources are not the most authoritative types of legislative\n\nhistory, they are useful because they offer some insight into the purposes under\xc2\xad\nlying the technical amendments leading to the separation of \xc2\xa7 205(a) and \xc2\xa7 205(b).\nThe structure and legislative history of \xc2\xa7205 show that the 1989 changes to\n\xc2\xa7 205 were intended to differentiate between the agencies covered by the prohibi\xc2\xad\ntion applicable to Federal employees and those covered by the prohibition\napplicable to District of Columbia employees. At least for purposes of \xc2\xa7 205, then,\n\xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa76, in the first instance, may be said to cover both Federal and\nDistrict of Columbia agencies. In accordance with the express recognition in \xc2\xa76\nthat this definition may be limited to a narrower scope by the context, the context\nof \xc2\xa7 205(a) shows that the term in that provision is intended to reach only the\nmore limited class of Federal agencies and the context of \xc2\xa7 205(b) shows that\nthe term there is intended to reach only the more limited class of District of\nColumbia agencies.\nC.\nOur conclusion that the term \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a) should be construed to apply\nonly to Federal agencies, and not state and local or District of Columbia entities,\nis reinforced by the rule of lenity which \xe2\x80\x9c demand[s] resolution of ambiguities\nin criminal statutes in favor of the defendant.\xe2\x80\x9d Hughey v. United States, 495 U.S.\n411, 422 (1990); see also Liparota v. United States, 471 U.S. 419, 427 (1985)\n( \xe2\x80\x9c \xe2\x80\x98[A]mbiguity concerning the ambit of criminal statutes should be resolved in\nfavor of lenity.\xe2\x80\x99 \xe2\x80\x9d ) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).\nThat rule is particularly applicable, and a narrow construction of a criminal\nprohibition is warranted, where \xe2\x80\x9c a reasonable doubt persists about a statute\xe2\x80\x99s\nintended scope even after resort to \xe2\x80\x98the language and structure, legislative history,\nand motivating policies\xe2\x80\x99 of the statute.\xe2\x80\x9d Moskal v. United States, 498 U.S. 103,\n108 (1990) (citation omitted); se e also Chapman v. United States, 500 U.S. 453,\nI0The qualification o f \xe2\x80\x9c m ost\xe2\x80\x9d Federal employees refers to a recommended exception to this general rule for\n\xe2\x80\x9c the United States A ttorney\xe2\x80\x99s Office because o f its unique role in prosecuting cases in both the United States District\nC ourt and the District o f C olumbia Superior C ourt Employees o f the United States Attorney\xe2\x80\x99s Office should continue\nto be barred from appearing before entities o f the District government except in accordance with their official duties.\xe2\x80\x9d\nCom m ission Report, at 116. This exception was incorporated into the text of the statute. See 18 U .S C . \xc2\xa7 205(b)\n\n22\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 205(a)(2) to Representation Before Non-Federal Agency\n\n463 (1991) (rule of lenity applicable where \xe2\x80\x9c there is a \xe2\x80\x98grievous ambiguity or\nuncertainty in the language and structure of the Act\xe2\x80\x99 \xe2\x80\x9d ) (citation omitted). Cf.\nApplication o f 18 U.S.C. \xc2\xa7 2 0 5 to Proposed \xe2\x80\x9cM aster A m ici\xe2\x80\x9d , 16 Op. O.L.C. 59,\n64 (1992) (concluding that application of \xc2\xa7205 to activities by government attor\xc2\xad\nneys as \xe2\x80\x9c master amici\xe2\x80\x9d before Court of Veterans Appeals is clearly prohibited\nby language, structure, legislative history, and motivating policies, and therefore,\nrule of lenity does not apply). Examination of the statutory structure and legislative\nhistory yields little definitive instruction as to the scope of \xe2\x80\x9c agency\xe2\x80\x9d in \xc2\xa7 205(a)\nand (b); hence, the rule of lenity supports narrow readings of the term.\nIII.\nWe conclude that the prohibition in 18 U.S.C. \xc2\xa7 205(a)(2) on a Federal govern\xc2\xad\nment employee engaging in representation before an \xe2\x80\x9c agency\xe2\x80\x9d in connection with\na covered matter in which the United States is a party or has a direct and substan\xc2\xad\ntial interest applies only to representation before a Federal agency and does not\napply to such representation before state agencies or agencies of the District of\nColumbia.11\nCORNELIA T.L. PILLARD\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n11 O f course, representation before a state, local, or other non-Federal endty may present a different case if a\nFederal employee sits on the non-Federal enUty in his or her official capacity. Such a situation, which may in\ncertain circumstances comprehend representation before a Federal agency for purposes o f \xc2\xa7 205(a), is beyond the\nscope of this opinion.\n\n23\n\n\x0c'


b'Effect of a Recent United Nations Security Council\nResolution on the Authority of the President Under\nInternational Law to Use Military Force Against Iraq\nUnited Nations Security Council Resolution 1441 does not alter the legal authority, under international\nlaw, granted by existing U.N. Security Council resolutions to use force against Iraq.\n\nNovember 8, 2002\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked our Office to analyze the effect of United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d)\nSecurity Council Resolution 1441, adopted on November 8, 2002, on the President\xe2\x80\x99s authority under international law to use military force against Iraq. We\nrecently advised you that the use of military force against Iraq would be consistent\nwith international law under existing U.N. Security Council resolutions\n(\xe2\x80\x9cUNSCRs\xe2\x80\x9d), or as an exercise of anticipatory self-defense. See Authority of the\nPresident Under Domestic and International Law to Use Military Force Against\nIraq, 26 Op. O.L.C. 143 (2002) (\xe2\x80\x9cIraq Opinion\xe2\x80\x9d). The terms of UNSCR 1441 do\nnot alter our earlier conclusion: the United States continues to have the authority,\nunder international law, to use force against Iraq. 1\nWe emphasize at the outset that U.N. Security Council authorization is not a\nnecessary precondition under international law for the use of force. On numerous\noccasions, states have, consistent with international law, used force without prior\nauthorization from the Security Council. Such uses of force have been based on\nthe inherent right to national self-defense recognized and affirmed in article 51 of\nthe U.N. Charter. See generally Iraq Opinion, 26 Op. O.L.C. at 178, 181-82. Under\nthe doctrine of anticipatory self-defense, the United States may use force against\nIraq if the President determines the use of force would be necessary due to an\nimminent threat, and a proportional response to that threat. See generally id. at\n177-95.\nWe also emphasize that the question of legality of the use of force against Iraq\nunder international law has no bearing on the President\xe2\x80\x99s authority under domestic\nlaw. As we have advised you previously, the President has full constitutional\nauthority as Chief Executive and Commander in Chief to use force against Iraq. Id.\nat 6-8. Congress most recently supported the President\xe2\x80\x99s authority in this context\nby passing H.R.J. Res. 114, Pub. L. No. 107-243, 116 Stat. 1498 (2002).\n\n1\nAs we have previously advised, it is the responsibility of this Office, on behalf of the Attorney\nGeneral, to provide authoritative opinions for the President on all legal questions, including questions\nof international law. See Letter for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee,\nAssistant Attorney General, Office of Legal Counsel (Jan. 11, 2002).\n\n199\n\n227-329 VOL_26_PROOF.pdf 209\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nI. UNSCR 1441\nOn November 8, 2002, the U.N. Security Council unanimously approved a\nresolution regarding Iraq. S.C. Res. 1441, U.N. Doc. S/RES/1441 (Nov. 8, 2002).\nUNSCR 1441 \xe2\x80\x9cdeplor[es]\xe2\x80\x9d Iraq\xe2\x80\x99s continued failure to comply with various\nUNSCRs, including in particular the requirements imposed by those resolutions\nthat Iraq: (1) fully disclose all aspects of its weapons of mass destruction\n(\xe2\x80\x9cWMD\xe2\x80\x9d) and other nuclear programs; (2) fully and unconditionally cooperate\nwith the United Nations Special Commission (\xe2\x80\x9cUNSCOM\xe2\x80\x9d), its successor, the\nUnited Nations Monitoring, Verification and Inspection Commission\n(\xe2\x80\x9cUNMOVIC\xe2\x80\x9d), and the International Atomic Energy Agency (\xe2\x80\x9cIAEA\xe2\x80\x9d);\n(3) provide immediate, unconditional and unrestricted access to UNMOVIC and\nthe IAEA; (4) renounce international terrorism; (5) cease the repression of its\ncivilian population; (6) provide access by international humanitarian organizations\nto all those in need of assistance in Iraq; (7) return, or cooperate in accounting for,\nKuwaiti and third country nationals wrongfully detained by Iraq; and (8) return\nKuwaiti property wrongfully seized by Iraq. Id. pmbl. \xc2\xb6\xc2\xb6 6-9 (2002).\nUNSCR 1441 grants Iraq \xe2\x80\x9ca final opportunity to comply with its disarmament\nobligations under relevant resolutions of the Council,\xe2\x80\x9d and specifies that, in order\nfor Iraq to begin to comply with these obligations, it must submit a full disclosure\nof its WMD program within thirty days of the resolution. Id. \xc2\xb6\xc2\xb6 2, 3. It specifically\nrequires Iraq to provide \xe2\x80\x9cimmediate, unimpeded, unconditional, and unrestricted\naccess to any and all, including underground, areas, facilities, buildings, equipment, records, and means of transport which [UNMOVIC and the IAEA] wish to\ninspect\xe2\x80\x9d and to all officials and other persons. Id. \xc2\xb6 5. Because international\ninspectors have been absent from Iraq since 1998, UNSCR 1441 also strengthens\nprevious resolutions by providing UNMOVIC and the IAEA with expansive new\nauthorities to assist them in fulfilling their mission. Id. \xc2\xb6 7. UNSCR 1441 directs\nthe Executive Chairman of UNMOVIC to report immediately to the Security\nCouncil \xe2\x80\x9cany interference by Iraq with inspection activities, as well as any failure\nby Iraq to comply with its disarmament obligations, including its obligations\nregarding inspections under this resolution.\xe2\x80\x9d Id. \xc2\xb6 11. False statements or omissions in the declarations submitted pursuant to UNSCR 1441 and failure to\ncooperate fully in implementing UNSCR 1441 also must be reported to the\nSecurity Council. Id. \xc2\xb6 4. Upon receipt of such a report, the Security Council will\n\xe2\x80\x9cconvene immediately . . . in order to consider the situation and the need for full\ncompliance with all of the relevant Council resolutions in order to secure international peace and security.\xe2\x80\x9d Id. \xc2\xb6 12.\nSignificantly, UNSCR 1441 \xe2\x80\x9c[d]ecides\xe2\x80\x9d that Iraq \xe2\x80\x9chas been and remains in\nmaterial breach of its obligations under relevant resolutions,\xe2\x80\x9d in particular the\nobligations in UNSCR 687 regarding Iraq\xe2\x80\x99s WMD program. Id. \xc2\xb6 1. In addition,\nthe resolution specifies that any false statements or omissions with respect to\n\n200\n\n227-329 VOL_26_PROOF.pdf 210\n\n10/22/12 11:13 AM\n\n\x0cEffect of UNSCR on President\xe2\x80\x99s Authority to Use Military Force Against Iraq\n\nIraq\xe2\x80\x99s WMD program \xe2\x80\x9cshall constitute a further material breach of Iraq\xe2\x80\x99s obligations.\xe2\x80\x9d Id. \xc2\xb6 4. The resolution also reminds Iraq that the Security Council has\nrepeatedly warned that \xe2\x80\x9cserious consequences\xe2\x80\x9d will result from the continued\nviolation of its obligations. Id. \xc2\xb6 13. Finally, UNSCR 1441 twice \xe2\x80\x9c[r]ecall[s]\xe2\x80\x9d\nUNSCR 678 and explicitly restates the authorization in that resolution for member\nstates \xe2\x80\x9cto use all necessary means to uphold and implement its resolution 660\n(1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660\n(1990) and to restore international peace and security in the area.\xe2\x80\x9d Id. pmbl. \xc2\xb6\xc2\xb6 1\n& 4.\nNothing in UNSCR 1441 alters our prior conclusion that the use of force\nagainst Iraq by the United States would be consistent with the U.N. Charter and\ninternational law, due to existing U.N. Security Council resolutions and the\nnation\xe2\x80\x99s inherent right of self-defense.\nII. U.N. Security Council Authorization to Use Force Against Iraq\nAs we explained previously, existing Security Council resolutions provide\ncontinuing authority to use force against Iraq. Enacted at the start of the Persian\nGulf War, UNSCR 678 authorizes member states to use \xe2\x80\x9call necessary means\xe2\x80\x9d to\neject Iraq from Kuwait, to uphold and implement \xe2\x80\x9call subsequent relevant\nresolutions,\xe2\x80\x9d and \xe2\x80\x9cto restore international peace and security in the area.\xe2\x80\x9d S.C.\nRes. 678, \xc2\xb6 2, U.N. Doc. S/RES/678 (Nov. 29, 1990); see also Iraq Opinion, 26\nOp. O.L.C. at 176-77. One of the most significant \xe2\x80\x9csubsequent relevant resolutions\xe2\x80\x9d is UNSCR 687, which established the terms of the cease-fire that suspended\nhostilities between Iraq and the U.S.-led international coalition. S.C. Res. 687,\nU.N. Doc. S/RES/687 (Apr. 8, 1991). As we detailed in our earlier opinion, Iraq\nOpinion, 26 Op. O.L.C. at 165-66, and as the President has made clear in recent\nspeeches, see, e.g., Address to the United Nations General Assembly in New York\nCity, 2 Pub. Papers of Pres. George W. Bush 1572 (Sept. 12, 2002); see also\nStatement of Prime Minister Tony Blair to the Emergency Session of the House of\nCommons (Sept. 24, 2002), available at http://news.bbc.co.uk/2/hi/uk_politics/\n2278495.stm (last visited May 7, 2012); Office of the Press Secretary, White\nHouse, A Decade of Deception and Defiance: Saddam Hussein\xe2\x80\x99s Defiance of the\nUnited Nations (Sept. 12, 2002), available at http://georgewbush-whitehouse.\narchives.gov/news/releases/2002/09/20020912.html (last visited May 7, 2012),\nIraq has committed numerous material breaches of the cease-fire, in particular by\ncontinuing to develop weapons of mass destruction and by preventing U.N.\ninspectors from discovering and destroying these weapons. Iraq\xe2\x80\x99s material\nbreaches permit the United States to suspend the cease-fire and rely on UNSCR\n678 as an authorization to use force to bring Iraq into compliance with UNSCR\n687 and other relevant resolutions. Further, Iraq\xe2\x80\x99s ongoing drive to develop\nweapons of mass destruction and its demonstrated hostile intentions toward its\n\n201\n\n227-329 VOL_26_PROOF.pdf 211\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nneighbors continue to pose a serious threat to international peace and security in\nthe region. Therefore, under UNSCR 678, the United States may use force to\nimplement the terms of UNSCR 687 and thereby restore international peace and\nsecurity in the area.\nNothing in UNSCR 1441 undermines or restricts the authority to use force\ngranted by existing resolutions. Rather, UNSCR 1441 provides further support for\nthe conclusion that the use of force would be appropriate under existing resolutions because it confirms that the President has sufficient grounds to find Iraq in\nmaterial breach of the cease-fire. Id. \xc2\xb6 1. Although we believe that the United\nStates may determine for itself whether Iraq is in material breach of UNSCR 687,\nsee Iraq Opinion, 26 Op. O.L.C. at 163-66, the adoption of a resolution making\nthat finding demonstrates that the Security Council agrees. A finding that Iraq is in\nmaterial breach of UNSCR 687 or other relevant resolutions is by itself sufficient\nto trigger the suspension of the cease-fire and the authority to use force under\nUNSCR 678. 2 UNSCR 1441\xe2\x80\x99s finding of material breach adds further support to\nour authority under international law.\nUNSCR 1441 does not undermine the consistent position of the United States\nthat UNSCR 678\xe2\x80\x99s authorization to use force remains in effect. See Iraq Opinion,\n26 Op. O.L.C. at 166-69. The Security Council has already reaffirmed UNSCR\n678 three times. See S.C. Res. 686, U.N. Doc. S/RES/686 (Mar. 2, 1991); S.C.\nRes. 687, U.N. Doc. S/RS/687 (Apr. 8, 1991); S.C. Res. 949, U.N. Doc.\nS/RES/949 (Oct. 15, 1994). UNSCR 1441 neither revokes UNSCR 678\xe2\x80\x99s authorization to use \xe2\x80\x9call necessary means\xe2\x80\x9d against Iraq, nor terminates the authorization\nin any way. The U.N. Security Council has not readily authorized the use of force\nin the past (indeed, it appears to have done so only in the context of seven\nconflicts), nor has it rescinded those decisions lightly. When the Security Council\nhas taken the serious step of ending an authorization to use force, it has only done\nso in one of two ways: either by expressly terminating the prior authorization, or\nby setting an up-front time limit on the authorization. 3 See, e.g., S.C. Res. 1031,\n\xc2\xb6 19, U.N. Doc. S/RES/1031 (Dec. 15, 1995) (Bosnia) (deciding that \xe2\x80\x9cthe\nauthority to take certain measures conferred upon States by [various UNSCRs]\nshall be terminated\xe2\x80\x9d); S.C. Res. 954, \xc2\xb6 1, U.N. Doc. S/RES/954 (Nov. 4, 1994)\n(extending the mandate for the U.N. Mission in Somalia (UNOSOM II) for a\n\n2\nUNSCR 1441 puts to rest the arguments of those commentators who claim that only the Security\nCouncil may determine whether Iraq is in material breach. See, e.g., Jules Lobel & Michael Ratner,\nBypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi\nInspection Regime, 93 Am. J. Int\xe2\x80\x99l L. 124, 150 (1999). Such commentators argue that the Security\nCouncil\xe2\x80\x99s previous resolution finding that Iraq was in material breach, which was adopted over ten\nyears ago, is too outdated to provide a basis for suspending the cease-fire. See id. at 151-52; S.C.\nRes. 707, U.N. Doc. S/RES/707 (Aug. 15, 1991).\n3\nFor your convenience, we have attached an appendix listing the various UNSCRs that have\nauthorized the use of force and their current status.\n\n202\n\n227-329 VOL_26_PROOF.pdf 212\n\n10/22/12 11:13 AM\n\n\x0cEffect of UNSCR on President\xe2\x80\x99s Authority to Use Military Force Against Iraq\n\n\xe2\x80\x9cfinal period\xe2\x80\x9d until March 31, 1995); S.C. Res. 929, \xc2\xb6 4, U.N. Doc. S/RES/929\n(June 22, 1994) (Rwanda) (specifying that \xe2\x80\x9cthe mission of Member States\ncooperating with the Secretary-General will be limited to a period of two months\nfollowing the adoption of the present resolution,\xe2\x80\x9d if not earlier). 4 U.N. Security\nCouncil practice has been consistent on this point over a substantial period of time.\nUNSCR 678, however, contains no self-imposed time-limit, and none of the\nresolutions relating to Iraq, including UNSCR 1441, have explicitly terminated the\nresolution\xe2\x80\x99s authorization to use force. Unless the Security Council clearly states,\nusing the same language it has in the past, that it has terminated UNSCR 678\xe2\x80\x99s\nauthorization for the use of force, that authorization continues. Instead, UNSCR\n1441 twice \xe2\x80\x9c[r]ecall[s]\xe2\x80\x9d UNSCR 678 and explicitly restates the authorization in\nUNSCR 678 for member states \xe2\x80\x9cto use all necessary means to uphold and\nimplement its resolution 660 (1990) . . . and all relevant resolutions subsequent to\nresolution 660 (1990) and to restore international peace and security in the area.\xe2\x80\x9d\nS.C. Res. 1441, pmbl.; S.C. Res. 678, \xc2\xb6 2. 5\nOther elements of UNSCR 1441 further support our conclusion that it does not\naffect existing authority, under previous Security Council resolutions, to use force\nagainst Iraq. First, UNSCR 1441\xe2\x80\x99s warning that Iraq\xe2\x80\x99s continued violation of its\ninternational obligations will result in \xe2\x80\x9cserious consequences,\xe2\x80\x9d read together with\n4\nSimilarly, the practice of the Security Council is to state clearly its intention to terminate sanctions\nimposed by previous UNSCRs. See, e.g., S.C. Res. 1367, \xc2\xb6 1, U.N. Doc. S/RES/1367 (Sept. 10, 2001)\n(deciding \xe2\x80\x9cto terminate the prohibitions established by . . . resolution 1160 (1998),\xe2\x80\x9d which required all\nstates to prevent the sale or supply to the Federal Republic of Yugoslavia of arms and related materi\xc3\xa8l\nof all types); S.C. Res. 1074, \xc2\xb6 2, U.N. Doc. S/RES/1074 (Oct. 1, 1996) (former Yugoslavia) (deciding\n\xe2\x80\x9cto terminate, with immediate effect, the measures referred to in paragraph 1 of\xe2\x80\x9d UNSCR 1022); S.C.\nRes. 1022, \xc2\xb6 4, U.N. Doc. S/RES/1022 (Nov. 22, 1995) (deciding that the Security Council \xe2\x80\x9cwill\nterminate [certain] measures on the tenth day following the occurrence of the first free and fair\nelections\xe2\x80\x9d provided for in the General Framework Agreement for Peace in Bosnia and Herzegovina);\nS.C. Res. 1011, \xc2\xb6 8, U.N. Doc. S/RES/1011 (Aug. 16, 1995) (deciding that \xe2\x80\x9con 1 September 1996 the\nrestrictions imposed by paragraph 13 of resolution 918 (1994) on the sale or supply of military arms\nand related materi\xc3\xa8l to the Government of Rwanda shall terminate, unless the Council decides\notherwise after its consideration of the second report of the Secretary-General\xe2\x80\x9d); S.C. Res 944, \xc2\xb6 4,\nU.N. Doc. S/RES/944 (Sept. 29, 1994) (deciding \xe2\x80\x9cto terminate the measures regarding Haiti set out in\n[various] resolutions . . . at 001 a.m. EST on the day after the return to Haiti of President Jean-Bertrand\nAristide\xe2\x80\x9d); S.C. Res. 919, \xc2\xb6\xc2\xb6 1, 2, U.N. Doc. S/RES/919 (May 26, 1994) (deciding \xe2\x80\x9cto terminate\nforthwith the mandatory arms embargo and other restrictions related to South Africa imposed by\nresolution 418 (1977) . . . [and] to end forthwith all other measures against South Africa contained in\nresolutions of the Security Council\xe2\x80\x9d); S.C. Res. 460, \xc2\xb6 2, U.N. Doc. S/RES/460 (Oct. 21, 1979)\n(deciding \xe2\x80\x9cto call upon Member States to terminate the measures taken against Southern Rhodesia\nunder Chapter VII of the Charter pursuant to resolutions 232 (1966), 253 (1968) and subsequent related\nresolutions on the situation in Southern Rhodesia\xe2\x80\x9d).\n5\nWe do not read UNSCR 1441\xe2\x80\x99s referral to UNSCR 678 in the past tense as an indication that the\nauthorization in that resolution has expired. See S.C. Res. 1441, pmbl. \xc2\xb6 4 (\xe2\x80\x9c[r]ecalling that resolution 678 (1990) authorized member States to use all necessary means\xe2\x80\x9d). Instead, the past tense appears\nto have been used because it is describing a previously adopted resolution. For example, UNSCR 1441\ndescribes obligations \xe2\x80\x9cimposed\xe2\x80\x9d by USCR 687, and there is absolutely no doubt that that resolution\ncontinues in effect. S.C. Res. 1441, pmbl. \xc2\xb6 5.\n\n203\n\n227-329 VOL_26_PROOF.pdf 213\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nits references to UNSCR 678, suggest that the Security Council views such serious\nconsequences as including the use of force under UNSCR 678. 6 S.C. Res. 1441,\n\xc2\xb6 13. Second, under general principles of armistice law, the cease-fire under\nUNSCR 687 suspended hostilities between the parties to the Persian Gulf War, but\ndid not extinguish the Security Council\xe2\x80\x99s authorization to use force. See Iraq\nOpinion, 26 Op. O.L.C. at 167-70. Third, nothing in UNSCR 1441 precludes the\nUnited States from assessing for itself whether the authorization in UNSCR 678\nremains in effect. Just as the Security Council has terminated authorizations to use\nforce using only clear and unambiguous language, it also has been clear and\nunambiguous when it has wanted the Security Council itself, rather than individual\nmember states, to determine whether an authorization continues in effect. See S.C.\nRes. 940, \xc2\xb6 8, U.N. Doc. S/RES/940 (July 31, 1994) (Haiti) (deciding \xe2\x80\x9cthat the\nmultinational force will terminate its mission . . . when a secure and stable\nenvironment has been established . . . [as determined] by the Security Council,\ntaking into account recommendations from the Member States of the multinational\nforce\xe2\x80\x9d). UNSCR 1441 contains no such clear and unambiguous statement.\nIt should be noted that UNSCR 1441 contains two provisions that might cast\ndoubt on the continuing authorization to use force against Iraq under previous\nU.N. Security Council resolutions. We believe, however, that these two paragraphs\nonly promise further review of Iraqi failure to comply with the new inspection\nregime. The first, paragraph 2, while \xe2\x80\x9cacknowledging\xe2\x80\x9d Iraq\xe2\x80\x99s previous material\nbreaches, \xe2\x80\x9c[d]ecides . . . to afford Iraq, by this resolution, a final opportunity to\ncomply with its disarmament obligations under the relevant resolutions of the\nCouncil.\xe2\x80\x9d This language might be read by some to suggest that no action will be\ntaken against Iraq until Iraq has had time to comply with its disarmament obligations under the framework of the new resolution. Paragraph 2, however, cannot\nconstitute a legal repeal of existing international legal authority to use force\nagainst Iraq. As explained above, the Security Council has always used clear and\nunambiguous language when it intends to terminate an authorization to use force.\nUNSCR 1441 does not impose a new sunset date, nor does it use the clear and\nunambiguous termination language that previous Security Council resolutions\nhave employed when rescinding authorizations to use force. As a legal matter,\n6\nTwice before, military force against Iraq has followed warnings by the Security Council that\nIraq\xe2\x80\x99s continued intransigence would result in serious consequences. On January 8 and 11, 1993, the\nPresident of the Security Council warned Iraq that \xe2\x80\x9cserious consequences\xe2\x80\x9d would follow if it failed to\ncomply with its international obligations. See S.C. Pres. Statement 1993/25091, U.N. Doc. S/PRST/\n25091 (Jan. 11, 1993); S.C. Pres. Statement 1993/25081, U.N. Doc. S/PRST/25081 (Jan. 8, 1993).\nShortly thereafter, on January 13, 1993, President George H.W. Bush ordered an air attack on surfaceto-missile sites and related facilities in the southern no-fly zone. And the December 1998 airstrikes\nagainst Iraq followed a late-October 1997 warning by the President of the Security Council that\n\xe2\x80\x9cserious consequences\xe2\x80\x9d would result if Iraq failed to comply unconditionally and immediately with its\ninternational obligations. S.C. Pres. Statement 1997/49, U.N. Doc. S/PRST/1997/49 (Oct. 29, 1997);\nsee also S.C. Res. 1137, pmbl., U.N. Doc. S/RES/1137 (Nov. 12, 1997) (recalling that statement).\n\n204\n\n227-329 VOL_26_PROOF.pdf 214\n\n10/22/12 11:13 AM\n\n\x0cEffect of UNSCR on President\xe2\x80\x99s Authority to Use Military Force Against Iraq\n\nnothing in paragraph 2 alters the existing authorization in UNSCR 678 for member\nStates to use \xe2\x80\x9call necessary means\xe2\x80\x9d to uphold and implement UNSCR 687 and\nother relevant resolutions and to restore international peace and security to the\narea. If paragraph 2 sought to suspend or repeal existing authority under UNSCR\n678 to use force, it would have employed clear and unambiguous language\nequivalent to the \xe2\x80\x9cterminate\xe2\x80\x9d provisions or sunset dates used in previous resolutions. See infra Appendix. 7\nNor could paragraph 2 alter the international law principle that, in response to\nIraq\xe2\x80\x99s previous material breaches of the cease-fire, the United States may, at any\ntime, suspend the cease-fire and rely on the authorization to use force against Iraq.\nSee Iraq Opinion, 26 Op. O.L.C. at 166-75. We do not read paragraph 2 as\ncontaining a clear agreement by the parties to the cease-fire, codified by UNSCR\n687, to modify its terms in any way. Certainly there is no clear statement that\nparagraph 2, or any other part of UNSCR 1441, seeks to alter the terms of the\n1991 cease-fire.\nParagraph 12 of UNSCR 1441 states that the Security Council will convene\nimmediately upon a report of Iraqi noncompliance by the Executive Chairman of\nUNMOVIC \xe2\x80\x9cto consider the situation and the need for full compliance with all of\nthe relevant Council resolutions in order to secure international peace and\nsecurity.\xe2\x80\x9d Although some might read this language to preclude the unilateral use of\nforce against Iraq until the Security Council had held such a meeting, this interpretation would be in error. Paragraph 12 does not alter our view that, under principles of both treaty and armistice law, the United States may, at any time, unilaterally suspend the cease-fire and rely on the authorization in UNSCR 678 to resume\nhostilities in response to Iraq\xe2\x80\x99s prior material breaches. See Iraq Opinion, 26 Op.\nO.L.C. at 166, 173; see also Ruth Wedgwood, The Enforcement of Security\nCouncil Resolution 687: The Threat of Force Against Iraq\xe2\x80\x99s Weapons of Mass\nDestruction, 92 Am. J. Int\xe2\x80\x99l L. 724, 726-27 (1998) (discussing U.S. right to use\nforce unilaterally to \xe2\x80\x9cvindicate\xe2\x80\x9d the Iraqi inspection regime). At most, paragraph\n12 only ensures that the U.N. Security Council will convene immediately to\naddress further material breaches by Iraq. Simply requiring another meeting holds\nopen the possibility of additional Security Council action, but does not eliminate\npast decisions and authorities. Paragraph 12, therefore, has no effect on the\nremedies available under international law in response to Iraq\xe2\x80\x99s previous and\nongoing material breaches of the cease-fire. A decision by the Security Council to\nconvene immediately in the event of Iraqi noncompliance cannot amount to a\n\n7\nEven if paragraph 2 were to be read to limit the use of force while Iraq undertook to comply with\nUNSCR 1441, any Iraqi breach of UNSCR 1441 itself would exhaust its \xe2\x80\x9cfinal opportunity\xe2\x80\x9d to comply\nwith its disarmament obligations. See S.C. Res. 1441, \xc2\xb6 4 (failure by Iraq at any time to comply with or\ncooperate fully in the implementation of UNSCR 1441 constitutes a further material breach of its\nobligations). This would provide yet another independent basis for the use of force under UNSCR 678.\n\n205\n\n227-329 VOL_26_PROOF.pdf 215\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nsuspension or repeal of the substantive authorization to use force granted by\nexisting U.N. Security Council resolutions.\nIII. Conclusion\nUNSCR 1441 does not alter the legal authority, under international law, granted\nby existing U.N. Security Council resolutions to use force against Iraq. We also\nemphasize that a U.N. Security Council authorization is not a necessary precondition under international law for the use of force. Under the doctrine of anticipatory\nself-defense, the United States may use force against Iraq if the President determines the use of force would be necessary due to an imminent threat, and a\nproportional response to that threat. 8 We refer you to our Oct. 23, 2002 Iraq\nOpinion for a complete examination of self-defense under international law and its\napplication to Iraq. See generally id., 26 Op. O.L.C. at 177-97.\nJOHN C. YOO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n8\nThe United States has consistently taken the position that the inherent right to self-defense under\ninternational law is not limited to responding to actual armed attacks. See Iraq Opinion, 26 Op. O.L.C.\nat 185-87; Memorandum for William J. Haynes II, General Counsel, Department of Defense, from Jay\nS. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Legal Constraints to Boarding and\nSearching Foreign Vessels on the High Seas at 10 (June 13, 2002).\n\n206\n\n227-329 VOL_26_PROOF.pdf 216\n\n10/22/12 11:13 AM\n\n\x0cEffect of UNSCR on President\xe2\x80\x99s Authority to Use Military Force Against Iraq\n\nAppendix\nUNSCRs Authorizing the Use of Force\nKorea\nUNSCR 83 \xe2\x80\x9c[r]ecommends that the Members of the United Nations furnish\nsuch assistance to the Republic of Korea as may be necessary to repel the armed\nattack and to restore international peace and security in the area.\xe2\x80\x9d S.C. Res. 83,\nU.N. Doc. S/RES/83 (June 27, 1950).\nTermination: This resolution does not appear to have been terminated.\nIraq\nUNSCR 678, \xe2\x80\x9c[a]cting under Chapter VII of the Charter . . . , [a]uthorizes\nMember States co-operating with the Government of Kuwait, unless Iraq on or\nbefore 15 January 1991 fully implements . . . the aforementioned resolutions, to\nuse all necessary means to uphold and implement resolution 660 (1990) and all\nsubsequent relevant resolutions and to restore international peace and security in\nthe area.\xe2\x80\x9d S.C. Res. 678, \xc2\xb6 2, U.N. Doc. S/RES/678 (Nov. 29, 1990).\nTermination: This resolution has not been terminated.\nSomalia\nUNSCR 794, \xe2\x80\x9c[a]cting under Chapter VII of the Charter of the United Nations,\nauthorizes the Secretary-General and Member States cooperating . . . to use all\nnecessary means to establish as soon as possible a secure environment for\nhumanitarian relief operations in Somalia.\xe2\x80\x9d S.C. Res. 794, \xc2\xb6 10, U.N. Doc. S/RES/\n794 (Dec. 3, 1992).\nUNSCR 814 expanded the U.N. Operation in Somalia (\xe2\x80\x9cUNOSOM II\xe2\x80\x9d) \xe2\x80\x9cfor an\ninitial period through 31 October 1993, unless previously renewed by the Security\nCouncil.\xe2\x80\x9d S.C. Res. 814, \xc2\xb6 6, U.N. Doc. S/RES/814 (Mar. 26, 1993).\nTermination: UNSCR 954 \xe2\x80\x9cdecides to extend the mandate for UNOSOM II for\na final period until 31 March 1995.\xe2\x80\x9d S.C. Res. 954, \xc2\xb6 1, U.N. Doc. S/RES/954\n(Nov. 4, 1994).\nRwanda\nUNSCR 929, \xe2\x80\x9c[a]cting under Chapter VII of the Charter of the United Nations,\nauthorizes the Member States cooperating with the Secretary-General to conduct\nthe operation referred to in paragraph 2 above using all necessary means to\nachieve [certain] humanitarian objectives.\xe2\x80\x9d S.C. Res. 929, \xc2\xb6 3, U.N. Doc. S/RES/\n\n207\n\n227-329 VOL_26_PROOF.pdf 217\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n929 (June 22, 1994). (Paragraph 2 welcomes the establishment of a temporary\noperation under national command and control aimed at contributing to the\nsecurity and protection of displaced persons, refugees, and civilians at risk in\nRwanda.)\nTermination: UNSCR 929 contains its own termination date, specifying that\n\xe2\x80\x9cthe mission of Member States cooperating with the Secretary-General will be\nlimited to a period of two months following the adoption of the present resolution,\xe2\x80\x9d if not earlier. Id. \xc2\xb6 4.\nHaiti\nUNSCR 940, \xe2\x80\x9c[a]cting under Chapter VII of the Charter of the United Nations,\nauthorizes Member States to form a multinational force under unified command\nand control and, in this framework, to use all necessary means to facilitate the\ndeparture from Haiti of the military leadership, consistent with the Governors\nIsland Agreement, the prompt return of the legitimately elected President and the\nrestoration of the legitimate authorities of the Government of Haiti, and to\nestablish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement.\xe2\x80\x9d S.C. Res. 940, \xc2\xb6 4, U.N. Doc. S/RES/\n940 (July 31, 1994).\nTermination: UNSCR 940 \xe2\x80\x9c[d]ecides that the multinational force will terminate\nits mission . . . when a secure and stable environment has been established,\xe2\x80\x9d as\ndetermined by the Security Council, taking into account recommendations from\nMember States of the multinational force (\xe2\x80\x9cMNF\xe2\x80\x9d). Id. \xc2\xb6 8. In UNSCR 975, the\nSecurity Council made such a determination and provided for a full transfer of\nresponsibility from the MNF to the U.N. Mission in Haiti by March 31, 1995. S.C.\nRes. 975, \xc2\xb6\xc2\xb6 5, 7, U.N. Doc. S/RES/975 (Jan. 30, 1995).\nFormer Yugoslavia\nUNSCR 770 \xe2\x80\x9c[c]alls upon States to take nationally or through regional agencies or arrangements all measures necessary to facilitate in coordination with the\nUnited Nations the delivery by relevant United Nations humanitarian organizations and others of humanitarian assistance to Sarajevo and wherever needed in\nother parts of Bosnia and Herzegovina.\xe2\x80\x9d S.C. Res. 770, \xc2\xb6 2, U.N. Doc. S/RES/770\n(Aug. 13, 1992).\nUNSCR 781 \xe2\x80\x9c[c]alls upon States to take nationally or through regional agencies or arrangements all measures necessary to provide assistance to the United\nNations Protection Force [UNPROFOR], based on technical monitoring and other\ncapabilities\xe2\x80\x9d to monitor compliance with the ban on military flights. S.C. Res. 781,\n\xc2\xb6 5, U.N. Doc. S/RES/781 (Oct. 9, 1992).\n\n208\n\n227-329 VOL_26_PROOF.pdf 218\n\n10/22/12 11:13 AM\n\n\x0cEffect of UNSCR on President\xe2\x80\x99s Authority to Use Military Force Against Iraq\n\nUNSCR 816 \xe2\x80\x9c[a]uthorizes Member States . . . to take, under the authority of\nthe Security Council . . . all necessary measures in the airspace of the Republic of\nBosnia and Herzegovina . . . to ensure compliance with the\xe2\x80\x9d flight ban. S.C. Res.\n816, \xc2\xb6 4, U.N. Doc. S/RES/816 (Mar. 31, 1993).\nUNSCR 836 \xe2\x80\x9c[d]ecides that . . . Member States, acting nationally or through\nregional organizations or arrangements, may take, under the authority of the\nSecurity Council . . . all necessary measures, through the use of air power, in and\naround the safe areas in the Republic of Bosnia and Herzegovina, to support\nUNPROFOR.\xe2\x80\x9d S.C. Res. 836, \xc2\xb6 10, U.N. Doc. S/RES/836 (June 4, 1993).\nUNSCR 844 \xe2\x80\x9c[r]eaffirms its decision in . . . resolution 836 (1993) on the use of\nair power, in and around the safe areas, to support UNPROFOR in the performance of its mandate.\xe2\x80\x9d S.C. Res. 844, \xc2\xb6 4, U.N. Doc. S/RES/844 (June 18, 1993).\nUNSCR 958 \xe2\x80\x9c[d]ecides that the authorization given in [UNSCR 836] shall\napply also to such measures taken in the Republic of Croatia.\xe2\x80\x9d S.C. Res. 958,\npmbl., U.N. Doc. S/RES/958 (Nov. 19, 1994).\nTermination: UNSCR 1031 states that \xe2\x80\x9cwith effect from the day on which the\nSecretary-General reports to the Council that the transfer of authority from the\nUnited Nations Protection Force (UNPROFOR) to IFOR [a multinational implementation force] has taken place, the authority to take certain measures conferred\nupon States by resolutions [770, 781, 816, 836, 844 and 958] shall be terminated.\xe2\x80\x9d\nS.C. Res. 1031, \xc2\xb6 19, U.N. Doc. S/RES/1031 (Dec. 15, 1995).\nUNSCR 1031 \xe2\x80\x9c[a]uthorizes . . . Member States . . . to take all necessary\nmeasures to effect the implementation of and to ensure compliance with Annex\nI-A of the Peace Agreement . . . [and] to ensure compliance with the rules and\nprocedures, to be established by the Commander of IFOR, governing command\nand control of airspace over Bosnia and Herzegovina with respect to all civilian\nand military air traffic . . . [and] to take all necessary measures, at the request of\nIFOR, either in defence of IFOR or to assist the force in carrying out its mission,\nand recognizes the right of the force to take all necessary measures to defend itself\nfrom attack or threat of attack.\xe2\x80\x9d Id. \xc2\xb6\xc2\xb6 14-17.\nTermination: UNSCR 1031 itself \xe2\x80\x9c[d]ecides, with a view to terminating the\nauthorization [provided for in the resolution] one year after the transfer of\nauthority from UNPROFOR to IFOR, to review by that date and to take a decision\nwhether that authorization should continue, based upon the recommendations from\nthe States participating in IFOR and from the High Representative through the\nSecretary General.\xe2\x80\x9d Id. \xc2\xb6 21. IFOR has been replaced by a multinational stabilization force (\xe2\x80\x9cSFOR\xe2\x80\x9d). S.C. Res. 1088, \xc2\xb6 18, U.N. Doc. S/RES/1088 (Dec. 12,\n1996). The most recent relevant resolution is UNSCR 1423, which authorizes the\nuse of force by Member States in support of SFOR in situations similar to those\ndelineated in UNSCR 1031. S.C. Res. 1423, \xc2\xb6\xc2\xb6 10-13, U.N. Doc. S/RES/1423\n(July 12, 2002).\n\n209\n\n227-329 VOL_26_PROOF.pdf 219\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nEast Timor\nUNSCR 1264, \xe2\x80\x9c[a]cting under Chapter VII of the Charter of the United\nNations, . . . [a]uthorizes the establishment of a multinational force under a unified\ncommand structure, pursuant to the request of the Government of Indonesia . . .\nand authorizes the States participating in the multinational force to take all\nnecessary measures to fulfill [their] mandate.\xe2\x80\x9d S.C. Res. 1264, \xc2\xb6 3, U.N. Doc.\nS/RES/1264 (Sept. 15, 1999).\nTermination: This authorization appears to continue in effect. The most recent\nresolution is UNSCR 1410, which establishes for 12 months from May 20, 2002 a\nU.N. Mission of Support in East Timor (\xe2\x80\x9cUNMISET\xe2\x80\x9d), including a civilian police\nand a military component. S.C. Res. 1410, \xc2\xb6\xc2\xb6 1-3, U.N. Doc. S/RES/1410\n(May 17, 2002). UNSCR 1410 \xe2\x80\x9creaffirms\xe2\x80\x9d UNSCR 1272, which, in turn, \xe2\x80\x9cwelcomes\xe2\x80\x9d the deployment of the multinational force to East Timor pursuant to\nUNSCR 1264. S.C. Res. 1272 (1999), pmbl., U.N. Doc. S/RES/1272 (Oct. 25,\n1999).\n\n210\n\n227-329 VOL_26_PROOF.pdf 220\n\n10/22/12 11:13 AM\n\n\x0c'