b'Military Use of Infrared Radars Technology to Assist Civilian\nLaw Enforcement Agencies\nT h e D ep artm en t o f D efense has statutory authority to assist civilian law enforcem ent agencies to\nid en tify o r confirm suspected illegal drug production w ithin structures located on private\np ro p erty by p ro v iding them w ith aerial reconnaissance that uses Forw ard Looking Infrared\nR ad ars technology.\n\nFebruary 19, 1991\nM\n\nem orandum\n\nO\n\np in io n fo r t h e\n\nDepa rtm\n\nent o f\n\nD\n\nG\n\neneral\n\nCoun sel\n\nefen se\n\nThis memorandum is in response to your request for our opinion whether,\nunder existing statutory authority, the Department of Defense may assist\ncivilian law enforcement agencies to identify or confirm suspected illegal\ndrug production within structures located on private property by providing\nthem with aerial reconnaissance that uses Forward Looking Infrared Radars\ntechnology. We conclude that such assistance is authorized by 10 U.S.C. \xc2\xa7\n374(b)(2)(B), and not prohibited by 10 U.S.C. \xc2\xa7 375.\nI.\n\nForward Looking Infrared Radars (\xe2\x80\x9cFLIR\xe2\x80\x9d) is a passive technology that\ndetects infrared radiation generated by heat-emitting objects. Infrared rays\nare received by the FLIR system, electronically processed, and projected on\na screen as a visual image in the shape o f the object that is emitting the heat.\nThe warm er the object, the brighter the image of the object appears. See\nU nited States v. Sanchez , 829 F.2d 757, 759 (9th Cir. 1987); United States v.\nK ilgu sy 571 F.2d 508, 509 (9th Cir. 1978). FLIR is not an x-ray technology.\nWe have been informed that it cannot provide information concerning the\ninterior o f an object or structure. It detects only heat emanating from sur\xc2\xad\nfaces that are directly exposed to the FLIR system. Thus, for example, if\nthere were heat-producing objects within a building, FLIR could detect that\nm ore infrared radiation was being emitted from the building\xe2\x80\x99s roof than if\nthe building were empty, but the system could not identify the shapes of\n36\n\n\x0cheat-emitting objects located within the structure. Nor could the system\nidentify the source of the heat or the precise location of the heat source\nwithin the structure.\nLaw enforcement agencies believe that FLIR technology can be useful in\nidentifying buildings that house marijuana crops, or methamphetamine or\nother drug processing laboratories. In particular, FLIR can aid law enforce\xc2\xad\nment officials in establishing probable cause that criminal activity is ongoing\nwithin a particular building by determining whether the building is radiating\nunusually large amounts of heat (due to the use of high intensity lighting or\ncombustion generators) or unusually small amounts of heat (due to heavy\ninsulation). Recently, therefore, federal and state law enforcement agencies\nhave requested that military aircraft equipped with FLIR fly over suspect\nbuildings on private lands and produce infrared images of those structures.\nThe Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) has informed us of three requests\nfor assistance that present the question whether such military assistance is\nauthorized. The Drug Enforcement Administration (\xe2\x80\x9cDEA\xe2\x80\x9d) has asked the\nArmy to conduct infrared imaging of a bam on private land in which the\nDEA suspects that marijuana is being cultivated. Second, a law enforcement\nagency has requested that an Army flight crew conduct a training mission\nover certain private lands and buildings in the vicinity of Wichita, Kansas,\nusing an Army helicopter equipped with FLIR, to identity suspected illegal\nmarijuana cultivation. And third, the DEA has asked that the Army under\xc2\xad\ntake flights in OH-58D helicopters equipped with FLIR, at a height o f at\nleast 500 feet above ground, to identify dwellings and other structures on\nprivate land in Arizona that the DEA suspects contain methamphetamine\nlaboratories. The requesting agencies maintain that the Defense Department\nhas the authority to provide the requested assistance under the provisions of\n10 U.S.C. \xc2\xa7\xc2\xa7 371-378, which are designed to promote cooperation between\nmilitary personnel and civilian law enforcement officials.\n\nII.\nChapter 18 of title 10, which was enacted by Congress in 1981 and sub\xc2\xad\nsequently amended in 1988 and 1989, authorizes DoD to provide several\nforms of assistance to civilian law enforcement officials. Sections 371 through\n373 permit the Secretary of Defense to provide these officials with informa\xc2\xad\ntion collected during training missions; equipment or facilities needed for\nlaw enforcement purposes; and training or advice relevant to equipment that\nis provided. Section 374 authorizes the Secretary to make DoD personnel\navailable for the operation and maintenance of equipment in connection with\na limited number of law enforcement purposes. Each of these authorizations\nis subject to the limitations in section 375 that the Secretary o f Defense\nprevent \xe2\x80\x9cdirect participation by a member of the Army, Navy, Air Force, or\n\n37\n\n\x0cMarine Corps in a search, seizure, arrest, or other similar activity.\xe2\x80\x9d Id. \xc2\xa7 375.1\nWe believe it is clear from the language and legislative history of sections\n371 through 374 that FLIR surveillance is authorized by those sections,\nsubject to the restrictions of section 375.2 Section 372 permits the Secretary\nof Defense to make available to any federal, state or local law enforcement\nofficial \xe2\x80\x9cany equipment\xe2\x80\x9d for law enforcement purposes, and obviously FLIR\nconstitutes \xe2\x80\x9cequipment.\xe2\x80\x9d Section 374, as amended, allows DoD personnel to\noperate such equipment for the purpose o f \xe2\x80\x9caerial reconnaissance,\xe2\x80\x9d which is\nprecisely what is contemplated in the requests that have been made. 10\nU.S.C. \xc2\xa7 374(b)(2)(B).3 The normal meaning of the term \xe2\x80\x9creconnaissance\xe2\x80\x9d is\n\xe2\x80\x9can exploratory or preliminary survey, inspection, or examination made to\ngain information.\xe2\x80\x9d Webster\'s Third New International Dictionary 1897 (1986).\nFLIR surveillance from aircraft is clearly \xe2\x80\x9caerial reconnaissance,\xe2\x80\x9d so de\xc2\xad\nfined. The only limitation on aerial reconnaissance even suggested by the\nlegislative history is that it should \xe2\x80\x9cbe used for reconnaissance of property\nand not for surveillance of persons.\xe2\x80\x9d H.R. Conf. Rep. No. 989, 100th Cong.,\n2d Sess. 451 (1988) (\xe2\x80\x9c1988 Conference Report\xe2\x80\x9d). Here, of course, the pro\xc2\xad\nposed reconnaissance is of property, not persons. We conclude, therefore,\n\'T h e scope of section 375 is itself restricted by 10 U.S.C. \xc2\xa7 378, which states that \xe2\x80\x9c[n]othing in this\nchapter shall be construed to limit the authority of the executive branch in the use o f military personnel\nor equipm ent for civilian law enforcement purposes beyond that provided by law before D ecember 1,\n1981.\xe2\x80\x9d Thus, if FLIR surveillance o f private buildings would not have been prohibited by the Posse\nC om itatus Act, 18 U.S.C. \xc2\xa7 1385, before 1981, section 375 does not proscribe such surveillance. See\ninfra note 16.\n2All parties who have reviewed the requests for DoD assistance that are at issue here appear to agree\nwith this conclusion. Memorandum for Terrence O\xe2\x80\x99Donnell, General Counsel, Department of Defense,\nfrom Robert M . Sm ith, Jr., at 32-33 (Sept. 19,1980) (\xe2\x80\x9cSmith Memorandum\xe2\x80\x9d); Memorandum for Office of\nthe Deputy C h ief of Staff for Operations and Plans, from Patrick J. Parrish, Assistant to the General\nCounsel, D epartm ent o f the Army at 1 (Sept. 17, 1990) (\xe2\x80\x9cParrish M emorandum\xe2\x80\x9d ); M emorandum for\nJoint C hiefs o f Staff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC at 1 (Aug. 14, 1990) (\xe2\x80\x9cHoffman\nM em orandum \xe2\x80\x9d ).\n3O riginally, section 374 authorized D oD personnel to operate equipment \xe2\x80\x9conly to the extent the equip\xc2\xad\nm ent is used for m onitoring and communicating the movement of air and sea traffic," and in certain\nem ergency circum stances. Department o f Defense Authorization Act, 1982, Pub. L. No. 97-86, tit. IX,\n\xc2\xa7 905(a)(1), 95 Stat. 1099, 1115 (1981). At the time, Congress believed these were the \xe2\x80\x9cprimary type[s]\no f assistance sought and needed by Federal drug enforcement agencies.\xe2\x80\x9d H.R. Conf. Rep. No. 311, 97th\nCong., 1st Sess. 120 (1981) (\xe2\x80\x9c 1981 Conference Report\xe2\x80\x9d).\nW hen it added the authority for m ilitary aerial reconnaissance assistance in 1988, Congress intended\nto perm it m ilitary assistance not only in connection with the interdiction of drugs bound for the United\nStates from foreign countries, but also in connection with the eradication of dom estically produced\nnarcotics. Several witnesses before the House and Senate Armed Services Committees testified that\nDoD assistance in the domestic \xe2\x80\x9cdrug w ar\xe2\x80\x9d was in high priority. See The Role o f the M ilitary in Drug\nInterdiction: Joint Hearings Before the House and Senate Armed Services Committees, 100th Cong..\n2d Sess. 187 (1988) (statement of Larry L. Orton, Special Agent in Charge, El Paso Intelligence Center,\nDrug E nforcem ent Agency) ("We further believe that the National Guard [should] help us in the role\nthat we have here domestically in the United States, and that is the eradication o f domestically grown\nm arijuana in the national fo rce .. .. We actually need people to go in, fly over them and locate them,\nand then go into the patches to eradicate."); id. at 242 (statement of Don Siegelman, Attorney General\no f A labam a) (\xe2\x80\x9c M ilitary equipment and certain personnel should be made available, under specified\nconditions, to assist civilian authorities conduct air and land marijuana spotting and eradication. M ili\xc2\xad\ntary helicopters and pilots could make a significant contribution to the systematic aerial surveying of\nsuspected m arijuana growing areas.\xe2\x80\x9d ); id. at 257 (statem ent of Edward Koch, M ayor of New York, New\nYork) (\xe2\x80\x9cI believe that those helicopters should be flying over identifying the marijuana fields. . . . Then\nyou notify the local cops, and the cops go in and make the arrest.\xe2\x80\x9d).\n\n38\n\n\x0cthat FLIR surveillance of buildings on private property is authorized aerial\nreconnaissance under sections 371-374, subject only to the restrictions set\nforth in section 375.4\n\nIII.\nSection 375 requires the Secretary of Defense to prescribe regulations\nensuring that activity undertaken pursuant to sections 371 to 374 does not\nresult in \xe2\x80\x9cdirect participation by a member of the Army, Navy, Air Force, or\nMarine Corps in a search, seizure, arrest, or other similar activity.\xe2\x80\x9d 10\nU.S.C. \xc2\xa7 375. The Secretary has promulgated regulations, based upon an\nearlier version of the statute, that prohibit military personnel from conduct\xc2\xad\ning \xe2\x80\x9c[a] search or seizure.\xe2\x80\x9d 32 C.F.R. \xc2\xa7 213.10(a)(3).5 We understand DoD\nto take the position that the term \xe2\x80\x9csearch\xe2\x80\x9d in the regulations is intended to\nhave the same meaning as does the statutory term \xe2\x80\x9csearch,\xe2\x80\x9d and we assume\nfor purposes of this opinion that this is correct.\nDoD has assumed that the statutory term \xe2\x80\x9csearch\xe2\x80\x9d was intended to be\ncoextensive with the same term in the Fourth Amendment and thus that the\napplicability of the section 375 prohibition to the assistance requested here\nturns on whether the FLIR surveillance constitutes a \xe2\x80\x9csearch\xe2\x80\x9d within the\nmeaning of the Fourth Amendment.6 Proceeding on this assumption, DoD\nhas concluded that FLIR surveillance is a \xe2\x80\x9csearch,\xe2\x80\x9d and therefore that sec\xc2\xad\ntion 375 prohibits the military from providing the FLIR surveillance assistance\nto civilian law enforcement agencies. We conclude from the language, struc\xc2\xad\nture, and legislative history of section 375 that, contrary to DoD\xe2\x80\x99s assumption,\nthe meaning of the term \xe2\x80\x9csearch\xe2\x80\x9d was not intended to be coextensive with\nthe meaning of the same term in the Fourth Amendment. Instead, when Con\xc2\xad\ngress used the term \xe2\x80\x9csearch\xe2\x80\x9d in section 375, it intended that the term encompass\nat most only searches involving physical contact with civilians or their\n4 Section 371 authorizes the Secretary of Defense to provide to civilian law enforcement officials \xe2\x80\x9cany\ninformation collected during the normal course o f military training or operations that may be relevant\nto a violation o f any Federal or State law.\xe2\x80\x9d DoD\xe2\x80\x99s provision of FLIR surveillance information obtained\nduring training missions in the vicinity of Wichita, Kansas, would thus appear to be separately autho\xc2\xad\nrized by section 371 if the requested FLIR surveillance were conducted in\'the \xe2\x80\x9cnormal course of military\ntraining."\n! The regulations promulgated by the Department of Defense state\'\nExcept as otherwise provided in this enclosure, the prohibition on use of military personnel\n\xe2\x80\x9cas a posse comitatus or otherwise to execute the laws" prohibits the following forms of\ndirect assistance:\n(i) Interdiction of a vehicle, vessel, aircraft or other similar activity.\n(ii) A search or seizure.\n(iii)An arrest, stop and frisk, or similar activity.\n(iv) Use of military personnel for surveillance or pursuit o f individuals, or as in\xc2\xad\nformants, undercover agents, investigators, or interrogators.\n32 C.F.R. \xc2\xa7 213.10(a)(3) (1991). These regulations were promulgated after chapter 18 was enacted in\n1981, but they have not been amended to achieve consistency with the statutory changes enacted in 1988\nand 1989. For example, subsection (i) of the regulations includes language that no longer appears in 10\nU.S.C. \xc2\xa7 375.\n\xe2\x80\x98 Smith Memorandum at 3, 32-38; accord Parrish Memorandum at 1; contra Hoffman M emorandum at\n2, supra.\n\n39\n\n\x0cproperty, and perhaps only searches involving physical contact that are likely to\nresult in a direct confrontation between military personnel and civilians.\nA.\nThere is no reason to assume, as a threshold matter, that the meaning of\nthe term \xe2\x80\x9csearch\xe2\x80\x9d in section 375 is coextensive with that of the same word\nin the Fourth Amendment. \xe2\x80\x9c [0 ]f course words may be used in a statute in a\ndifferent sense from that in which they are used in the Constitution.\xe2\x80\x9d Lamar\nv. U nited States, 240 U.S. 60, 65 (1916); see also Verlinden B.V. v. Central\nBank o f N igeria , 461 U.S. 480, 494-95 (1983) (meaning of \xe2\x80\x9carising under\xe2\x80\x9d\nin Article III, Section 2 differs from that of the same phrase in 28 U.S.C. \xc2\xa7\n1331); Towne v. Eisner , 245 U.S. 418, 425 (1918) (\xe2\x80\x9c[I]t is not necessarily\ntrue that income means the same thing in the Constitution and the [Income\nTax] Act.\xe2\x80\x9d). The term \xe2\x80\x9csearch\xe2\x80\x9d has acquired a specialized meaning in Fourth\nAmendment jurisprudence, in light of the Amendment\xe2\x80\x99s expansive purpose\nto protect all reasonable expectations of privacy. That specialized definition\nclearly encompasses activity in which there is no physical contact with or\nintrusion into private property, such as electronic wiretapping. Katz v. United\nStates, 389 U.S. 347 (1967).\nIn common parlance, however, the term usually connotes at least some\namount of physical contact or interference. Indeed, Justice Brandeis con\xc2\xad\nceded in his dissenting opinion in Olm stead v. United States, 277 U.S. 438\n(1928), which foreshadowed the Court\xe2\x80\x99s decision in Katz overruling Olmstead,\nthat the \xe2\x80\x9cordinary meaning\xe2\x80\x9d of \xe2\x80\x9csearch\xe2\x80\x9d would encompass only activity in\xc2\xad\nvolving a physical trespass. Id. at 476-78 (Brandeis, J., dissenting). Although\nJustice Brandeis was ultimately unsuccessful in persuading his colleagues of\nhis substantive position, the most that he could say about their construction\nof the term \xe2\x80\x9csearch\xe2\x80\x9d was that it was \xe2\x80\x9cunduly literal.\xe2\x80\x9d7 The \xe2\x80\x9cordinary mean\xc2\xad\ning\xe2\x80\x9d o f \xe2\x80\x9csearch\xe2\x80\x9d relied upon by the Court and recited by Justice Brandeis in\nOlm stead is frequently that intended by Congress. A number of statutes con\xc2\xad\ncerning searches by law enforcement officials, for example, seem to assume that\na \xe2\x80\x9csearch\xe2\x80\x9d involves some physical contact between law enforcement personnel\nand civilians.8 It should not be presumed, therefore, that the term \xe2\x80\x9csearch\xe2\x80\x9d in\nsection 375 is coextensive with the same term in the Fourth Amendment.\n\xe2\x80\x99 It is evident from his opinion that Justice Brandeis did not use the phrase \xe2\x80\x9c unduly literal" to suggest\nthat the m ajority was mistaken as to the ordinary meaning of the term \xe2\x80\x9c search.\xe2\x80\x9d His only point was that\nadoption o f the \xe2\x80\x9cordinary meaning\xe2\x80\x9d o f the term was inappropriate given the broad privacy protection\npurpose o f the Fourth Amendment.\n\xe2\x80\x99 See, e.g., 7 U.S.C. \xc2\xa7 164a (authorizing Department o f Agriculture employees \xe2\x80\x9cto stop and, without\nwarrant, to inspect, search, and exam ine such person, vehicle, receptacle, boat, ship, or vessel\xe2\x80\x9d ); 18\nU .S.C . \xc2\xa7 913 (subjecting to prosecution \xe2\x80\x9c[wjhoever falsely represents himself to be an officer, agent, or\nem ployee o f the United States, and in such assumed character arrests or detains any person or in any\nm anner searches the person, buildings, or other property of any person\xe2\x80\x9d ); id. \xc2\xa7 2231 (subjecting to\nprosecution \xe2\x80\x9c (w ]hoever forcibly assaults, resists, opposes, prevents, impedes, intimidates, or interferes\nwith any person authorized to serve o r execute search warrants or to make searches and seizures"); id.\nContinued\n\n40\n\n\x0cThe context in which the word \xe2\x80\x9csearch\xe2\x80\x9d appears in section 375 suggests\nthat Congress indeed may have intended the term to refer only to searches\ninvolving physical contact. Section 375 employs the term \xe2\x80\x9csearch\xe2\x80\x9d in asso\xc2\xad\nciation with \xe2\x80\x9cseizure\xe2\x80\x9d and \xe2\x80\x9carrest,\xe2\x80\x9d terms which contemplate some physical\ncontact with persons or property.9 If one invokes the common sense maxim\nnoscitur a sociis, \xe2\x80\x9c[w]here any particular word is obscure or o f doubtful\nmeaning, taken by itself its obscurity or doubt may be removed by reference\nto associate words,\xe2\x80\x9d Virginia v. Tennessee, 148 U.S. 503, 519 (1893), it would\nappear that Congress intended for the term \xe2\x80\x9csearch\xe2\x80\x9d in title 10 to have the\nnarrow, \xe2\x80\x9cordinary meaning,\xe2\x80\x9d rather than the meaning ascribed to the term in\nthe Fourth Amendment. This suggestion is reinforced by the fact that Con\xc2\xad\ngress extended the prohibition in section 375 also to \xe2\x80\x9cother sim ilar\nactivities],\xe2\x80\x9d that is, to other activities similar to searches, seizures, and ar\xc2\xad\nrests. It is apparent from this phrase that Congress regarded searches, seizures,\nand arrests as similar activities.10 Apart from the obvious fact that these are\nall law enforcement activities, one of the fundamental similarities of these\nactivities is that each entails some amount of physical contact.\nThe intent of Congress in section 375 to prohibit only searches involving\nphysical contact is particularly evident in the original version of section 375.\nAs enacted in 1981, section 375 forbade direct participation by DoD person\xc2\xad\nnel \xe2\x80\x9cin an interdiction of a vessel or aircraft, a search and seizure, arrest, or\nother similar activity.\xe2\x80\x9d Pub. L. No. 97-86, tit. IX, \xc2\xa7 905(a)(1), 95 Stat. 1099\n1116 (1981) (emphasis added). The coupling of \xe2\x80\x9csearch\xe2\x80\x9d and \xe2\x80\x9cseizure\xe2\x80\x9d\nthrough use of the conjunctive \xe2\x80\x9cand,\xe2\x80\x9d and the reference to the two as a\nsingle event (i.e., \xe2\x80\x9ca search and seizure\xe2\x80\x9d), strongly suggests that Congress\nwas referring to searches of persons or objects that had been seized and thus\nwere in the custody of law enforcement officers. Searches of seized persons\nor objects almost always involve physical contact.11\n\'(....continued)\n\xc2\xa7 2232 (distinguishing between \xe2\x80\x9csearches" and "electronic surveillance\xe2\x80\x9d and prohibiting \xe2\x80\x9c Physical Inter\xc2\xad\nference With Search\xe2\x80\x9d ); 33 U.S.C \xc2\xa7 383 (\xe2\x80\x9cThe commander and crew of any merchant vessel o f the U nited\nStates . . . may oppose and defend against any aggression, search, restraint, depredation, or seizure, which\nshall be attempted upon such vessel\n.\xe2\x80\x9d).\n\xe2\x80\x99 To \xe2\x80\x9cseize\xe2\x80\x9d is to \xe2\x80\x9c take hold of suddenly or forcibly" or \xe2\x80\x9cto take possession of by force or at will."\nRandom House Dictionary o f the English Language 1734 (1987). In the law, a \xe2\x80\x9cseizure\xe2\x80\x9d generally\nrequires \xe2\x80\x9can intentional acquisition of physical control." Brower v. County o f Inyo, 489 U S 593, 596\n(1989). \xe2\x80\x9c Arrest\xe2\x80\x9d is most commonly defined as \xe2\x80\x9c the act of stopping or restraining (as from further\nm otion).\xe2\x80\x9d Webster\'s Third New International Dictionary 121 (1986) The traditional meaning of \xe2\x80\x9car\xc2\xad\nrest" in the legal context is the seizure of a person which \xe2\x80\x9ceventuate[s] in a trip to the station house and\nprosecution for crim e.\xe2\x80\x9d Terry v. Ohio, 392 U.S. 1, 16 (1968). See also Douglas v. Buder, 412 U S. 430,\n431-32 (1973); Cupp v. Murphy, 412 U S 291, 294 n 1 (1973). Both arrests and seizures thus virtually\nalways entail physical contact.\nl0It is possible to read the catch-all phrase \xe2\x80\x9cother similar activ ities]\xe2\x80\x9d to include any activity similar to\nsearches, similar to seizures, or similar to arrests, in which event no inference need be drawn as to\nwhether Congress regarded searches, seizures, and arrests as themselves similar to each other. This\nwould be a natural reading of the phrase, however, only if the enumerated activities had nothing in\ncommon.\n" The inference that Congress was concerned only with searches that entail some physical contact is\nstrengthened by the inclusion of \xe2\x80\x9c search and seizure" in a series of terms with \xe2\x80\x9cinterdiction\xe2\x80\x9d and "ar\xc2\xad\nrest,\xe2\x80\x9d both o f which also generally entail physical contact. See supra p. 41\n\n41\n\n\x0cAlthough Congress amended section 375 in 1989, so that it now prohibits\nparticipation in a \xe2\x80\x9csearch, seizure, arrest, or similar activity,\xe2\x80\x9d there is no\nindication that by deleting the word \xe2\x80\x9cand,\xe2\x80\x9d Congress intended to signal a depar\xc2\xad\nture from the statute\xe2\x80\x99s original purpose. See H.R. Conf. Rep. No. 331, 101st\nCong., 1st Sess. 654 (1989). The 1989 amendment merely clarifies the section\nso as to prohibit military personnel from participating in searches entailing\nphysical contact, even if they will not involve or lead ultimately to seizures.\nB.\n\n1.\nThe legislative history of chapter 18 confirms that Congress intended in\nsection 375 to prohibit at most searches by the military that entail physical\ncontact with civilians or their property, and perhaps only such searches that\nare likely to result in direct confrontation between military personnel and\ncivilians. The history of section 375 actually begins with the Posse Comitatus Act, 18 U.S.C. \xc2\xa7 1385, which governed military involvement in law\nenforcement activity prior to enactment o f chapter 18 in 1981.12 The Posse\nComitatus Act was adopted in 1878 in response to objections from southern\nStates to United States Army participation in civilian law enforcement dur\xc2\xad\ning Reconstruction. In the one hundred years immediately following its\nenactment, the Posse Comitatus Act was rarely the subject of litigation. To\ndate, few courts have attempted to define the contours of the Act, and there\napparently has never been a prosecution under the Act. See Posse Comitatus\nA ct, H earings on H.R. 3519 Before the Subcomm. on Crime o f the House\nComm, on the Judiciary, 97th Cong., 1st Sess. 21 (1981) (statement of Ed\xc2\xad\nward S.G. Dennis, Jr., Department of Justice) ("Posse Comitatus Hearings").\n\nBy 1948, the Posse Comitatus Act was characterized by one court as an\n\xe2\x80\x9cobscure and all-but-forgotten statute.\xe2\x80\x9d Chandler v. United States, 171 F.2d\n921, 936 (1st Cir. 1948), cert, denied , 336 U.S. 918 (1949).\nThe courts that confronted issues under the Posse Comitatus Act before\n1981 did not interpret the Act uniformly. Some understood the Act as a\nbroad and absolute prohibition against virtually any military participation in\ncivilian law enforcement activity. In two cases arising from the 1973 fed\xc2\xad\neral occupation of Wounded Knee, South Dakota, for example, the courts\nconcluded that the mere provision of tactical advice by a military officer, if\nit were subsequently acted upon by civilians, would be unlawful. United\nStates v. Jaramillo, 380 F. Supp. 1375, 1381 (D.S.D. 1974), appeal dism issed,\n1: The Posse Com itatus Act states:\nW hoever, except in cases and under circumstances expressly authorized by the Constitu\xc2\xad\ntion o r Act o f Congress, willfully uses any part o f the Army or the Air Force as a posse\ncom itatus or otherw ise to execute the laws shall be fined not more than $10,000 or im pris\xc2\xad\noned not m ore than two years, or both.\n18 U.S.C. \xc2\xa7 1385.\n\n42\n\n\x0c510 F.2d 808 (8th Cir. 1975); United States v. Banks, 383 F. Supp. 368, 375\n(D.S.D. 1974). Another court held under the Federal Tort Claims Act that\nthe use of an Air Force helicopter and its personnel to aid in a search for a\nnonmilitary prison escapee was forbidden by the Posse Comitatus Act. The\ncourt emphasized that \xe2\x80\x9c[t]he innocence and harmlessness of the particular\nuse of the Air Force in the present case [and] the dissimilarity of that use to\nthe uses that occasioned the enactment . . . are irrelevant to the operation of\na statute that is absolute in its command and explicit in its exceptions.\xe2\x80\x9d\nWrynn v. United State, 200 F. Supp. 457, 465 (E.D.N.Y. 1961).\nOther courts, however, concluded that the Posse Comitatus Act permitted\nmilitary personnel to offer certain forms of \xe2\x80\x9cpassive\xe2\x80\x9d or \xe2\x80\x9cnonauthoritarian\xe2\x80\x9d\nassistance to civilians. In another Wounded Knee case, the court interpreted\nthe Act to prohibit the military from \xe2\x80\x9cactively performing direct law en\xc2\xad\nforcement duties,\xe2\x80\x9d but to allow a \xe2\x80\x9cpassive role which might indirectly aid\n[law enforcement].\xe2\x80\x9d United States v. Red Feather, 392 F. Supp. 916, 924-25\n(D.S.D. 1975). This court concluded that military involvement in the arrest\nof a person, seizure of evidence, search of a person, or search of a building\nconstituted impermissible \xe2\x80\x9cdirect\xe2\x80\x9d aid, but that tactical advice, training, and\naerial photographic reconnaissance flights were \xe2\x80\x9cindirect\xe2\x80\x9d assistance permit\xc2\xad\nted by the Act. Id.\nA second court concluded after transfer of the Red Feather case that the\nPosse Comitatus Act prohibited only military activity \xe2\x80\x9cwhich is regulatory,\nprescriptive or compulsory in nature, and causes the citizens to be presently\nor prospectively subject to regulations, proscriptions, or compulsions im\xc2\xad\nposed by military authority.\xe2\x80\x9d United States v. McArthur, 419 F. Supp. 186,\n194 (D.N.D. 1975), a ff\xe2\x80\x99d sub nom., United States v. Casper, 541 F.2d 1275\n(8th Cir. 1976), cert, denied, 430 U.S. 970 (1977). The court believed that\nthe Act did not outlaw \xe2\x80\x9cthe borrowing of highly skilled personnel, like pilots\nand highly technical equipment like aircraft and cameras, for a specific,\nlimited, temporary purpose.\xe2\x80\x9d Id. This Office, in 1978, endorsed the com\xc2\xad\nmon points of the analyses in Red Feather and McArthur, concluding that\nmilitary assistance in civilian law enforcement does not violate the Posse\nComitatus Act where \xe2\x80\x9cthere is no contact with civilian targets of law en\xc2\xad\nforcement, no actual or potential use of military force, and no military control\nover the actions of civilian officials.\xe2\x80\x9d Letter for Deanne Siemer, General Coun\xc2\xad\nsel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel at 13 (Mar. 24, 1978) (\xe2\x80\x9cLawton Letter\xe2\x80\x9d).\nIn the wake of this series of decisions, there understandably was substan\xc2\xad\ntial confusion over the kinds of assistance that the military could provide to\ncivilian law enforcement officials.\n\n2\n\n.\n\nCongress addressed the confusion that had arisen and clarified the bound\xc2\xad\naries o f perm issible DoD law enforcem ent activity in 1981 through\n43\n\n\x0camendments to chapter 18. H.R. Rep. No. 71, 97th Cong., 1st Sess., pt. 2, at\n3 (1981) (\xe2\x80\x9c 1981 House Report\xe2\x80\x9d); S. Rep. No. 58, 97th Cong., 1st Sess. 148\n(1981). It is evident from the legislative history of these amendments that\nCongress intended to codify the distinction \xe2\x80\x94 articulated by the district\ncourt in United States v. R ed Feather \xe2\x80\x94 between \xe2\x80\x9cindirect passive\xe2\x80\x9d assis\xc2\xad\ntance and \xe2\x80\x9cdirect active\xe2\x80\x9d involvement in law enforcement activity. Edward\nD ennis, testifying on b eh alf of the Departm ent of Justice, stated the\nD epartm ent\xe2\x80\x99s view that \xe2\x80\x9cthe principle which is put forth in the statutes is\nthat the armed services would be called upon to lend indirect and passive\nforms o f assistance to civilian law enforcement.\xe2\x80\x9d Posse Comitatus Hear\xc2\xad\nings , at 21. An expert on military-civilian relations, Professor Christopher\nPyle, objected strenuously to the Red Feather analysis, but acknowledged\nthat \xe2\x80\x9c[i]t is not difficult to see how the proposals currently before the Sub\xc2\xad\ncommittee build upon this opinion.\xe2\x80\x9d Id. at 42. And Rear Admiral Donald\nThompson of the Coast Guard reported that the Navy relied on the Wounded\nKnee cases to \xe2\x80\x9cpermit[] aerial surveillance or photo-reconnaissance mis\xc2\xad\nsions in support o f law enforcement activities on a not-to-interfere basis.\xe2\x80\x9d\nId. at 49.\nThe committee reports from the House Judiciary Committee and the Con\xc2\xad\nference Committee are relatively clear that Congress intended to adopt the\nR ed Feather passive-active distinction. The committee report on the House\nbill, from which the authority granted in section 374 derives, rejected the\nabsolutist view of the Posse Comitatus Act taken by the courts in United\nStates v. Jaram illo and U nited States v. Banks, stating that those decisions\n\xe2\x80\x9cserve to illustrate the confusion regarding the Act and the problems that\nresult when it is too mechanically applied.\xe2\x80\x9d 1981 House Report, at 6. The\nHouse committee referred more favorably to the conclusion of the Red Feather\ncourt that only \xe2\x80\x9cthe direct active use o f Army or Air Force personnel\xe2\x80\x9d was\nprohibited, id., and the Conference Committee eventually provided in sec\xc2\xad\ntion 375 for restrictions only \xe2\x80\x9con the direct participation of military personnel\nin law enforcement activities.\xe2\x80\x9d 1981 Conference Report at 121.\nSignificantly, Congress understood R ed Feather to prohibit only activity\nthat entailed direct, physical confrontation between military personnel and\ncivilians. During the hearings, Representative Hughes, Chairman o f the Sub\xc2\xad\ncommittee on Crime, observed to William H. Taft IV, General Counsel of\nthe Department of Defense:\nI can understand where you might have to have military per\xc2\xad\nsonnel, actually operate [in a law enforcement capacity] under\ngiven circumstances. I understand that. But that is a long\nway from giving them the authority to make an arrest or to\nmake a seizure.\nAn assist, as opposed to a military person making an arrest\nor participating in a seizure is an important distinction.\n\n44\n\n\x0cPosse Comitatus Hearings, at 28. During the same exchange, Mr. Taft en\xc2\xad\n\ndorsed that prohibition on direct participation by military personnel in arrests\nor seizures, and presented his view of the passive-active principle: \xe2\x80\x9c[I]t is\nthe arrests and the seizures, and active \xe2\x80\x94 putting, really, into a confronta\xc2\xad\ntion, an immediate confrontation, the military and a violator o f a civilian\nstatute, that causes us the greatest concern.\xe2\x80\x9d Id. at 30 (emphasis added).13\n\nCongress\xe2\x80\x99 concern with confrontation between military personnel and ci\xc2\xad\nvilians is also apparent from the discussions over the provisions of the original\nsection 374(c). That section authorized the use of military personnel to\noperate equipment outside the land area of the United States only in certain\nemergencies where the Attorney General and the Secretary of Defense jointly\ndetermine that an emergency exists. These procedural safeguards were in\xc2\xad\ncorporated because \xe2\x80\x9c[t]he conferees were concerned that [the] use o f military\npersonnel in such operations had the potential fo r placing such personnel in\nconfrontational situations." 1981 Conference Report at 120 (emphasis added).\nIn sum, in codifying the Red Feather passive-active participation distinc\xc2\xad\ntion, Congress \xe2\x80\x9cmaximize[d] the degree of cooperation between the military\nand civilian law enforcement,\xe2\x80\x9d 1981 House Report at 3, while carefully pre\xc2\xad\nventing the direct, physical confrontation between military personnel and\ncivilians which it believed would \xe2\x80\x9cfundamentally alter the nature of the\nrelationship between the military and civilian society.\xe2\x80\x9d Id. at l l . 14\n\n3.\nIn 1988, Congress enacted amendments to chapter 18 which further un\xc2\xad\nderscore that the purpose of section 375 was to codify the R ed Feather\ndistinction between \xe2\x80\x9cpassive\xe2\x80\x9d and \xe2\x80\x9cactive\xe2\x80\x9d assistance and thus to prohibit\ndirect interface between military forces and civilians. National Defense\nAuthorization Act, Fiscal Year 1989, Pub. L. No. 100-456, \xc2\xa7 1104, 102 Stat.\n1918, 2045 (1988). Specifically, Congress deleted the ban in section 375 on\nparticipation in \xe2\x80\x9can interdiction of a vessel or aircraft,\xe2\x80\x9d because that phrase\nhad been understood to prohibit activities which did not involve physical\nconfrontation between the military and civilians. The Conference Report\nexplains:\nThe conferees deleted the term \xe2\x80\x9cinterdiction of a vessel or\naircraft,\xe2\x80\x9d which is set forth in current law, because the term\n\xe2\x80\x9cinterdiction \xe2\x80\x9d has acquired a meaning that includes detection\nand monitoring as well as a physical interference with the\n13This colloquy caused Representative Hughes to propose language, which was eventually incorpo\xc2\xad\nrated into section 374(b), that allows DoD personnel to operate or assist in operating equipm ent for law\nenforcem ent purposes. Id. at 29.\n14Some activities prohibited under the Red Feather analysis, such as searches o f buildings and seizures\nof evidence, do not necessarily entail confrontations with civilians. To the extent that such searches are\nprohibited under section 375, this reflects Congress\xe2\x80\x99 concern that in carrying out such activities, military\npersonnel likely would be placed in a confrontational posture with civilians.\n\n45\n\n\x0cThe conferees emphasize,\nhowever, that they do not intend by this action to authorize\nmilitary personnel to interrupt the passage of a vessel or air\xc2\xad\ncraft except as otherwise authorized by law.\n\nm ovem ent o f a vessel o r aircraft.\n\n1988 Conference Report at 452 (1988) (emphasis added).\nAs part of the 1988 revision, Congress also amended section 374 to au\xc2\xad\nthorize DoD personnel to operate equipment outside the United States for\nthe purpose of transporting civilian law enforcement officials. 10 U.S.C. \xc2\xa7\n372(b). This authority, however, was expressly made subject to joint ap\xc2\xad\nproval by the Secretary of Defense, the Attorney General, and the Secretary\nof State \xe2\x80\x9cbecause of the potential fo r involving D O D personnel in a direct\nlaw enforcement confrontation, even though their role is designed for logis\xc2\xad\ntical support.\xe2\x80\x9d 1988 Conference Report at 452 (emphasis added). Finally, a\nnew subsection (c) of section 374 was added to permit the Secretary of\nDefense to make DoD personnel available to civilian law enforcement offi\xc2\xad\ncials for other purposes, but \xe2\x80\x9conly to the extent that such support does not\ninvolve direct participation by such personnel in a civilian law enforcement\noperation.\xe2\x80\x9d Id. \xc2\xa7 374(c). In a telling explanation of how Congress under\xc2\xad\nstood the prohibition in subsection 374(c) on \xe2\x80\x9cdirect participation . . . in a\ncivilian law enforcement operation,\xe2\x80\x9d the Conference Report stated that \xe2\x80\x9c[t]o\nthe extent that transportation of law enforcement officials or use of military\nofficials does not reasonably raise the possibility o f a law enforcement con\xc2\xad\nfro n ta tio n , such assistance may be provided in the United States under\nsubsection (c).\xe2\x80\x9d 1988 Conference Report at 452 (emphasis added).15\nAccordingly, we conclude that Congress intended section 375 to prohibit\nat most military participation in searches involving physical contact with civil\xc2\xad\nians or their property, and perhaps only such searches that are likely to result in\ndirect, physical confrontation between military personnel and civilians.16\n\n15 Tw o recent opinions o f this Office have concluded, based largely on this legislative history, that\nCongress intended in section 375 to bar only the exercise of military authority in contexts where there\nare likely to be direct confrontations with civilians. Use o f Navy Drug-Detecting Dogs by Civilian\nPostal Inspectors, 13 Op. O.L.C. 312 (1989); Use o f Department o f Defense Drug-Detecting Dogs to\nA id in Civilian Law Enforcement, 13 Op. O.L.C. 185 (1989).\n\'\xe2\x80\x98 Because FLIR aerial reconnaissance is authorized by section 374 and not prohibited by section 375, it\ncannot be prohibited by the Posse Com itatus Act. That Act, by term s, does not apply to activities \xe2\x80\x9cex\xc2\xad\npressly authorized by the Constitution or Act of Congress.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1385. For the same reason, we\nneed not consider whether FLIR surveillance would otherwise be permitted by the Posse Comitatus Act,\nand thus excepted from the prohibitions of section 375 by 10 U.S.C. \xc2\xa7 378. As noted, however, this\nOffice concluded in 1978 that the Posse Comitatus Act does not bar the use o f military personnel in\nsituations where \xe2\x80\x9c [t]here is no contact with civilian targets of law enforcement, no actual or potential\nuse o f m ilitary force, and no military control over actions of civilian officials." Lawton Letter at 13.\nThus, there is a substantial argument th at FLIR surveillance to assist civilian law enforcement officials\nwould be perm itted by the Posse Com itatus Act even in the absence of section 374, and therefore could\nnot be prohibited by section 375.\n\n46\n\n\x0cIV.\nDoD\xe2\x80\x99s principal argument that section 375 prohibits FLIR surveillance is\nthat the term \xe2\x80\x9csearch\xe2\x80\x9d in section 375 is coextensive with the term \xe2\x80\x9csearch\xe2\x80\x9d\nin the Fourth Amendment. This argument rests on the unsupported assertion\nthat the \xe2\x80\x9cusual\xe2\x80\x9d meaning of \xe2\x80\x9csearch\xe2\x80\x9d is that ascribed to the term in the\nFourth Amendment, see Smith Memorandum at 34, an assertion that we re\xc2\xad\nject for the reasons set forth above. DoD also supports its argument with the\ngeneral statements from the legislative history that Congress sought to \xe2\x80\x98\xe2\x80\x9c reaf\xc2\xad\nfirm the traditionally strong American antipathy towards the use of the military\nin the execution of civil law\xe2\x80\x99\xe2\x80\x9d and to avoid \xe2\x80\x98\xe2\x80\x9c modification in this country\xe2\x80\x99s\nlong tradition of separating the military from day to day involvement in the\nexecution and operation of the civilian laws.\xe2\x80\x99\xe2\x80\x9d Smith Memorandum at 34\n(quoting 1981 House Report at 10-11). Reliance upon Congress\xe2\x80\x99 reaffirma\xc2\xad\ntion of these traditions, however, begs the only relevant question, which is\nprecisely what historical paradigm Congress sought to reaffirm. As we have\nshown, the text and history of the legislation amply dem onstrate that\ntradition was essentially that military personnel should be excluded from\nparticipation in activities that are likely to result in direct confrontation\nwith civ ilians.17\nDoD also argues that because Congress in recent years has declined to\nauthorize active military personnel to conduct searches of cargo, vehicles,\nvessels, and aircraft at points of entry into the United States, section 375\ncannot be interpreted to prohibit only activity that would result in confronta\xc2\xad\ntion between military personnel and civilians. Smith Memorandum at 34.\nWe would not draw any inference about the meaning of the statute from\nCongress\xe2\x80\x99 inaction on these proposals. See Pension Benefit Guaranty Corp.\nv. The LTV Corp., 496 U.S. 633, 650 (1990); United States v. Wise, 370 U.S.\n405, 411 (1962). In any event, an interpretation of section 375 that pre\xc2\xad\ncluded border searches could well be consistent with our analysis, because\nsuch searches generally would require use of the military in circumstances\nlikely to result in physical contact or in confrontations with civilians.\nFinally, if DoD\xe2\x80\x99s interpretation of section 375 were correct, then section\n375 would prohibit much of the assistance to civilian law enforcement that is\nauthorized under section 374. Section 375 forbids direct participation not only\nin searches, seizures, and arrests, but also in \xe2\x80\x9cother similar activity.\xe2\x80\x9d If aerial\nreconnaissance flights over private lands using FLIR technology constitute\n17 DoD acknowledges in a footnote that \xe2\x80\x9c[t]he Red Feather test was adopted . . . by the Congress in 10\nU S C \xc2\xa7 375,\xe2\x80\x9d but contends that FLIR surveillance by military personnel nonetheless would violate\nsection 375 because military personnel would be "actively performing direct law enforcem ent duties.\xe2\x80\x9d\nSmith Memorandum at 35 n.106 (quoting United States v Red Feather, 392 F. Supp. 916, 925 (D S.D.\n1975)). Once one concedes that Congress intended to codify in section 375 the Red Feather analysis, it\nis virtually impossible to conclude that FLIR surveillance is prohibited under the section Congress\nclearly understood Red Feather to prohibit at most only searches that involved physical contact with\ncivilians or their property And the Red Feather court even stated that aerial photographic reconnais\xc2\xad\nsance was not \xe2\x80\x9cdirect\xe2\x80\x9d assistance of the kind prohibited by the Posse Comitatus Act. 392 F Supp. at 925.\n\n47\n\n\x0c\xe2\x80\x9csearches,\xe2\x80\x9d then analogous activities, such as aerial reconnaissance of open\nm arijuana fields using binoculars or night-vision equipment, naked eye ob\xc2\xad\ns e rv a tio n s o f sm oke em issio n s from b u ild in g ro o fto p s, and o ther\nnon-trespassory means of detecting and monitoring drug smuggling or pro\xc2\xad\nduction would constitute \xe2\x80\x9cother similar activities],\xe2\x80\x9d and thus be prohibited.\nSee supra at p. 41 & n.l l.18 Indeed, much of the law enforcement assistance\nauthorized by section 374 would be prohibited if FLIR surveillance consti\xc2\xad\ntutes a \xe2\x80\x9c search\xe2\x80\x9d for purposes of the statute. DoD personnel would be\nforbidden, for example, from operating equipment for detection, monitoring,\nand communication of the movement of air and sea traffic and from con\xc2\xad\nducting aerial reconnaissance. 10 U.S.C. \xc2\xa7 374(b)(2). Congress obviously\ndid not intend to forbid in section 375 the activity that it authorized in\nsection 374. It is evident therefore that the term \xe2\x80\x9csearch\xe2\x80\x9d in section 375\ncannot include FLIR surveillance.\n\nCONCLUSION\nWe believe that the language, structure, and history of section 375 to\xc2\xad\ngether convincingly demonstrate that Congress intended to prohibit at most\nsearches by the military that entail physical contact with civilians or their\nproperty, and perhaps only searches entailing physical contact that are likely\nto result in a direct confrontation between military personnel and civilians.\nBecause FLIR surveillance does not constitute even a search involving physi\xc2\xad\ncal contact with civilians or their property, we conclude that DoD personnel\nare authorized by section 374(b)(2)(B) to conduct FLIR surveillance of build\xc2\xad\nings on private property, even assuming that the surveillance constitutes a\nsearch for purposes of the Fourth Amendment.19\nJ. MICHAEL LUTTIG\nAssistant Attorney General\nOffice o f Legal Counsel\n\n18 D oD apparently would confine the prohibition on \xe2\x80\x9cother similar activity\xe2\x80\x9d to Fourth Amendment\nsearches, and it would not construe section 373 to ban other activities permitted by section 374. Even\naccepting D oD \xe2\x80\x99s assum ption that FLIR surveillance constitutes a Fourth Amendment search, however,\nthis sim ply is not a permissible construction of the text, because it would render the general words\n\xe2\x80\x9cother sim ilar activity\xe2\x80\x9d meaningless\n19D oD has not asked us to address, and we do not address, whether FLIR surveillance constitutes a\nF ourth Am endm ent search. See Smith Memorandum at 3.\n\n48\n\n\x0c'


b'Applicability of Criminal Statutes and \xe2\x80\x9cWhistleblower\xe2\x80\x9d\nLegislation to Unauthorized Employee Disclosures\nS ev eral crim inal sta tu tes m ay be app licab le to im p ro p e r d isc lo su re by a Ju stice D e p a rt\xc2\xad\nm ent em p lo y ee o f in fo rm atio n p ertain in g to F e d e ra l B ureau o f In v estig atio n (F B I)\nu n d e rc o v e r in v estigations.\nE m p lo y ees o f th e F B I are ex cep ted from th e g en eral " w h is tle b lo w e r\xe2\x80\x9d p ro v isio n s o f the\nC ivil S erv ice R efo rm A c t o f 1978; th o se p ro v isio n s d o n ot in any e v e n t a p p ly w h e re a\nd isclo su re is sp ecifically p ro h ib ite d by law , as is a p p a re n tly th e case here.\n\nF ebruary 7, 1980\nM EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nA t your request, w e have reviewed the criminal statutes to determ ine\nw hether any might be applicable to Justice D epartm ent employees who\nmay be found to have im properly disclosed information pertaining to\nthe ABSCAM investigation.* W e have also review ed the so-called\n\xe2\x80\x9cw histleblow er\xe2\x80\x9d statutes that w ere designed to provide a fram ework\nfor, and protection of, proper disclosures by D epartm ental employees.\nO ur quick review o f these m atters suggests that there are several\ncriminal statutes that might have application here and that nothing in\nthe \xe2\x80\x9cw histleblow er\xe2\x80\x9d legislation will provide ground for justifying any\nleaks that may have occurred here.\n\nI. Criminal Statutes\nA. Privacy Act\n\nUnder the Privacy A ct, 5 U.S.C. \xc2\xa7552a, a willful disclosure of\ninformation contained in a system o f records by a federal officer or\nemployee w ho has possession o f or access to such records by virtue o f\nhis office or em ploym ent is punishable as a misdem eanor and subject to\na fine o f $5,000. 5 U.S.C. \xc2\xa7 552a(i). T he disclosure must be prohibited\nby either the Privacy A ct or a regulation prom ulgated thereunder in\norder for the statute to apply. Since the information that was disclosed\nwas probably contained in Federal Bureau o f Investigation (FB I) inves\xc2\xad\ntigative files, w hich we are inform ed are part o f the F B I\xe2\x80\x99s system o f\n*\nN o t e : T he A B SC A M investigation was an undercover investigation by the Federal Bureau o f\nInvestigation into allegations o f political corruption and bribery, w hich culm inated in the prosecution\nand conviction o f a num ber o f state and federal officials. See, e.g.. United States v. Myers, 692 F.2d 823,\n829-30 (2d Cir. 1982). Ed.\n\n383\n\n\x0crecords, and since the disclosure w ould not be authorized under any of\nthe categories listed in 5 U.S.C. \xc2\xa7 552a(b), the willful disclosure o f such\ninform ation would be prohibited by 5 U.S.C. \xc2\xa7552a(b) and by depart\xc2\xad\nmental regulation, 28 C .F.R . 16.56(8).\nB. Theft o f Government Property\n\nU nder 18 U.S.C. \xc2\xa7641, a person w ho knowingly converts to his own\nuse or the use o f another any record o r thing of value to the United\nStates, may be imprisoned for 10 years a n d /o r be fined $10,000. R e\xc2\xad\ncently, the G overnm ent has argued in several cases that \xc2\xa7641 applies to\nunauthorized disclosure o f governm ent information because such infor\xc2\xad\nmation is a \xe2\x80\x9cthing o f value\xe2\x80\x9d to the United States. T he Second Circuit in\nU nited States v. Girard, 601 F.2d 69 (2d Cir. 1979), accepted the\nG overnm ent\xe2\x80\x99s theory and held \xc2\xa7641 applicable to the sale by a D rug\nEnforcem ent Adm inistration (D E A ) employee o f information contained\nin a D E A com puter w hich concerned the identity o f possible informers\nand the status o f certain drug investigations. T he court rejected the\ndefendants\xe2\x80\x99 argum ent that construing \xc2\xa7651 to apply to the theft of\ninformation would make the statute vague and overbroad and would\nthus infringe on First A m endm ent rights, stating that there was no\ndanger o f vagueness o r overbreadth there because the defendants must\nhave,know n that the disclosure o f such information was prohibited by\nD E A regulations. H ow ever, a district court in the D istrict o f Columbia\nhas expressly rejected the G overnm ent\xe2\x80\x99s interpretation o f \xc2\xa7641 on the\nground that it would infringe on the First Am endm ent. United States v.\nH ubbard, 474 F. Supp. 64, 79 (D .D .C . 1979). T he T hird Circuit in\nUnited States v. DiGilio, 538 F.2d 972, 978 (3d Cir. 1976), finding that\nphotocopies o f governm ent docum ents w ere stolen, made it clear that\nits decision to affirm the conviction on this ground should not be read\nto imply a rejection o f the G overnm ent\xe2\x80\x99s theory that \xc2\xa7641 applies to\ntheft o f governm ent information.\nC. R em oval o f Government Records\n\nIf original governm ent records w ere rem oved, 18 U.S.C. \xc2\xa72071\nw ould apply, w hich punishes such removal with 3 years in prison a n d /\no r a $2,000 fine. If governm ent records w ere photocopied on govern\xc2\xad\nment equipment, and the photocopies w ere removed, 18 U.S.C. \xc2\xa7641\nmay apply. United States v. DiGilio, 538 F.2d at 977.\nD. Disclosure o f Confidential Business Information\n\nU nder 18 U.S.C. \xc2\xa7 1905, it is unlawful for a governm ent em ployee to\ndisclose inform ation com ing to him in the course o f his em ploym ent\nw hich relates to the am ount or source o f any income, profits, losses, or\nexpenditures o f any person o r firm. Violation o f this statute may be\npenalized by a year\xe2\x80\x99s imprisonment, a $1,000 fine a n d /o r rem oval from\n\n384\n\n\x0cemployment. Since the ABSCAM investigation may be viewed as gen\xc2\xad\nerating information related to the source and am ount o f income o f\nMembers o f Congress, \xc2\xa7 1905 may apply to the disclosure o f such\ninformation. W e do not know w hether \xc2\xa7 1905 would be construed that\nbroadly because we have not found any published opinion in w hich a\nprosecution was brought under that statute.\nE. Civil Rights Statutes\n\nU nder 18 U.S.C. \xc2\xa7242, it is a crim e for any person, \xe2\x80\x9c under color of\nany law, statute, ordinance, regulation, or custom ,\xe2\x80\x9d willfully to deprive\nany inhabitant o f the United States \xe2\x80\x9co f any rights, privileges, o r immu\xc2\xad\nnities secured or protected by the Constitution or laws o f the United\nStates.\xe2\x80\x9d If a person acquires information in his official capacity, and\nuses his official status to lend credibility to his statem ents when he\ndiscloses that information, his disclosure almost certainly would consti\xc2\xad\ntute action \xe2\x80\x9cunder color o f law ,\xe2\x80\x9d even if it is unauthorized.1 D epending\non the particular facts, the disclosure o f ABSCAM information may\nhave violated the constitutional rights o f targets of the investigation in\nseveral ways; if the disclosures w ere intended to violate these rights,\nthey were willful and therefore a crime.\nFirst, by creating prejudicial publicity, the disclosures may have\nviolated a potential defendant\xe2\x80\x99s right to a fair trial. Relatedly, if the\ndisclosures persuaded witnesses w ith exculpatory testimony not to\ncome forward, they may have violated a potential defendant\xe2\x80\x99s rights to\ncompulsory process and due process o f law.\nSecond, an argum ent can be made that the C onstitution prohibits a\nmember of the Executive Branch, acting under color o f law, from\ntortiously undermining the effectiveness o f a M ember o f Congress. T he\nspeech or debate clause, the congressional privilege against civil arrest,\nsee Art. I, \xc2\xa76, cl. 1, and the Constitution\xe2\x80\x99s strict limits on the circum \xc2\xad\nstances under which a M ember can be rem oved, see Powell v.\nMcCormack, 395 U.S. 486, 522-48 (1969)\xe2\x80\x94as well as general principles\nof separation o f pow ers\xe2\x80\x94all suggest that M embers o f Congress have\nsome constitutional protection against efforts by Executive Branch offi\xc2\xad\ncials to undermine their effectiveness as representatives. If those efforts\ntake the form o f a com m on law tort com m itted under color o f law \xe2\x80\x94\nhere, perhaps defamation or an invasion o f privacy by placing a person\nin a \xe2\x80\x9c false light\xe2\x80\x9d \xe2\x80\x94an argum ent can be made that the M em bers\xe2\x80\x99 consti\xc2\xad\ntutional protection has been violated. Cf. Wheeldin v. Wheeler, 373 U.S.\n647, 653-67 (1963) (Brennan, J., dissenting) (malicious abuse o f process\n1 D epending on the facts, the disclosures m ight possibly violate 18 U .S.C. \xc2\xa7241, under w hich it is a\ncrim e for \xe2\x80\x9c tw o o r m ore persons [to] conspire to injure, oppress, threaten, o r intim idate any citizen in\nthe free exercise o r enjoym ent o f any right o r privilege secured to him by the C onstitution o r law s o f\nthe United States." Section 241 reaches actions that w ere not done \xe2\x80\x9c under c olor o f law ."\n\n385\n\n\x0cby a federal official may be actionable as tort under federal common\nlaw).\nT hird, the disclosure here may have violated the Fifth A m endm ent\xe2\x80\x99s\nguarantee that no person be deprived o f liberty or property w ithout\ndue process o f law. T he Privacy A ct and its im plementing regulations\nprobably give the persons they are designed to protect\xe2\x80\x94here the tar\xc2\xad\ngets about whom inform ation was disclosed\xe2\x80\x94a statutory entitlem ent\nthat am ounts to a \xe2\x80\x9cproperty\xe2\x80\x9d interest within the meaning of the D ue\nProcess Clause. A ny other statute o r regulation that was designed to\nprevent the prejudicial disclosures o f information gained in a criminal\ninvestigation would create a similar property interest, w hether or not it\nprovided criminal penalties. R eputation itself is probably not a \xe2\x80\x9cliberty\xe2\x80\x9d\ninterest within the meaning o f the Fifth A m endm ent\xe2\x80\x99s D ue Process\nClause, see Paul v. Davis, 424 U.S; 693, 701-710 (1976),2 but an injury\nto reputation, com bined w ith some additional significant injury, can\nconstitute a deprivation o f \xe2\x80\x9c liberty\xe2\x80\x9d within the meaning o f the clause.\nSee id. Here, the undermining o f the ability o f a target to perform his\nlegislative function as a M em ber o f C ongress may constitute that addi\xc2\xad\ntional injury. In these ways, the disclosures here may have deprived\npersons o f their liberty or property w ithout due process, thus\xe2\x80\x94if will\xc2\xad\nful\xe2\x80\x94violating 18 U.S.C. \xc2\xa7242.\nWe have also review ed the obstruction o f justice statutes but, given\nthe facts as we presently understand them, w e do not find them appli\xc2\xad\ncable. 18 U.S.C. \xc2\xa7 1503 applies only w hen a judicial proceeding is\npending, and 18 U.S.C. \xc2\xa7 1505 applies only when an administrative\nproceeding is pending. T he only obstruction o f justice statute applicable\nto an investigation is 18 U.S.C. \xc2\xa7 1510, w hich is m uch narrow er in\nscope than \xc2\xa7\xc2\xa7 1503 and 1505, punishing an endeavor by bribery, misrep\xc2\xad\nresentation o r intimidation to obstruct, delay or prevent the com m uni\xc2\xad\ncation o f inform ation related to the violation o f a criminal statute o f the\nUnited States. H ow ever, if it can be shown that the purpose o f the\ndisclosure was to term inate the investigation and that bribery, m isrepre\xc2\xad\nsentation or intimidation was involved, it could be argued that \xc2\xa7 1510\napplies.3\n\n2 Paul v. Davis held, in a case involving a claim under 42 U.S.C. \xc2\xa7 1983, that reputation alone was\nnot a \xe2\x80\x9c liberty" interest protected by the D ue Process C lause o f the Fourteenth A m endm ent. Since the\nC ourt w as explicitly concerned about \xe2\x80\x9c mak[ing] the F o u rteen th A m endm ent a font o f tort law to be\nsuperim posed upon w h atev er systems may already be adm inistered by the States," 424 U.S. at 701, an\nargum ent m ight be made that this holding does not apply to interests protected against invasion by\nfederal officials.\n3 If th e purpose o f the disclosure was to intim idate M em bers o f C ongress and im pair their effective\xc2\xad\nness, it could conceivably be argued that 18 U.S.C. \xc2\xa7 372 applies. T h at statute punishes a conspiracy to\nprevent by force, intim idation, o r th reat a person holding any office, trust, o r place of confidence\nunder the U nited States from discharging his duties. Such an argum ent, how ever, may be founded on\nan ov erb ro ad construction o f the term \xe2\x80\x9c intim idation."\n\n386\n\n\x0cII. Whistleblower Protection\nT he Civil Service Reform Act o f 1978 protects from agency reprisals\nemployees w ho disclose information that they \xe2\x80\x9c reasonably believe\nevidences\xe2\x80\x94(i) a violation of any law, rule, or regulation, or (ii) misman\xc2\xad\nagement, a gross waste of funds, an abuse of authority, or a substantial\nand specific danger to public health or safety, if such disclosure is not\nspecifically prohibited by law. . . . \xe2\x80\x9d 5 U.S.C. \xc2\xa7 2302(b)(8)(A). This\nsection covers positions in the com petitive service, career appointee\npositions in the Senior Executive Service, and positions in the excepted\nservices other than those at the policy level and those specifically\nexcluded by the President. 5 U.S.C \xc2\xa7 2302(a)(2)(B). It applies generally\nto all executive agencies, but enum erates exceptions, including the FBI.\nFBI employees enjoy the m ore limited protection o f 5 U.S.C. \xc2\xa7 2303,\nwhich prohibits reprisals against FBI employees w ho disclose inform a\xc2\xad\ntion to the A ttorney G eneral or his designee.\nIf the D epartm ent decides to take a \xe2\x80\x9cpersonnel action\xe2\x80\x9d (defined\nbroadly in 5 U.S.C. \xc2\xa7 2302(a)(2)(A)) against an em ployee for \xe2\x80\x9c leaking\xe2\x80\x9d\ninformation to the press, it must determ ine w hether the employee is\ncovered by the \xe2\x80\x9cw histleblow er\xe2\x80\x9d protections. T he head of each agency\nis responsible for prevention o f reprisals prohibited by the A ct. 5\nU.S.C. \xc2\xa7 2302(c).\nAn employee o f the FBI is not protected by the A ct from reprisals\nfor disclosure o f information to the press. A n employee o f any other\nbranch of the D epartm ent is protected only if: (1) He is not in a\nposition exempted from com petitive service because o f its confidential,\nor policymaking character; (2) the disclosure was not specifically pro\xc2\xad\nhibited by law; and (3) the employee reasonably believed that the\ninformation evidenced violations, abuses, o r dangers specified by the\nAct. Because it is likely that any disclosure would be violative at least\nof the Privacy A ct (if not other statutes), it appears to us that D epart\xc2\xad\nmental employees would find no protection in these provisions.\nL arry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f L egal Counsel\n\n387\n\n\x0c'


b'Authority to Employ White House Officials\nExempt from Annual and Sick Leave Act\nDuring Appropriations Lapse\nWhite House officials who are exempt from the Annual and Sick Leave Act pursuant to\n5 U.S.C. \xc2\xa7 6301(2)(x) and (xi) may continue to work during a lapse in the appropriations for their salaries.\nApril 8, 2011\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether White House Office officials who are exempt\nfrom the provisions of the Annual and Sick Leave Act under 5 U.S.C.\n\xc2\xa7 6301(2)(x) and (xi) may continue to work during a lapse in appropriations. For the reasons set forth below, we conclude that they may.\nI.\nIn September 1995, this Office issued an opinion regarding \xe2\x80\x9cthe authority available to the White House [O]ffice to employ the services of White\nHouse employees during a lapse in appropriations.\xe2\x80\x9d Authority to Employ\nthe Services of White House Office Employees During an Appropriations\nLapse, 19 Op. O.L.C. 235 (1995) (\xe2\x80\x9cWhite House Employees\xe2\x80\x9d). As we\nexplained there, two provisions of the Antideficiency Act impose the\nprincipal statutory constraints on this authority. Section 1341 of title 31\nprovides that \xe2\x80\x9c[a]n officer or employee of the United States Government\n. . . may not . . . involve [the] government in a contract or obligation for\nthe payment of money before an appropriation is made unless authorized\nby law.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a)(1)(B). And section 1342 of the same title\nprovides that \xe2\x80\x9c[a]n officer or employee of the United States Government\n. . . may not accept voluntary services for [the] government or employ\npersonal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.\xe2\x80\x9d\nApplying these provisions to the White House Office, we identified\nthree categories of employees who could continue to work during an\nappropriations lapse: \xe2\x80\x9cpersonnel who perform functions that are excepted\nfrom the Antideficiency Act\xe2\x80\x99s general prohibition\xe2\x80\x9d set forth in 31 U.S.C.\n\xc2\xa7 1341; personnel who hold nonsalaried positions and whose employment\n40\n\n\x0cAuthority to Employ White House Officials During Appropriations Lapse\n\ntherefore does not \xe2\x80\x9cincur an obligation on behalf of the federal government\xe2\x80\x9d; and personnel who hold positions in which compensation is not\nfixed by law and who have lawfully waived their salaries. White House\nEmployees, 19 Op. O.L.C. at 235\xe2\x80\x9337. We explained that the \xe2\x80\x9cexcepted\nfunctions\xe2\x80\x9d in the first category included \xe2\x80\x9cfunctions relating to emergencies involving an imminent threat to the safety of human life or protection\nof property\xe2\x80\x9d\xe2\x80\x94an exception set forth in the Antideficiency Act itself, see\n31 U.S.C. \xc2\xa7 1342\xe2\x80\x94and functions \xe2\x80\x9cauthoriz[ed] . . . by other law,\xe2\x80\x9d including \xe2\x80\x9cthose functions as to which express statutory authority to incur\nobligations in advance of appropriations has been granted; those functions\nfor which such authority arises by necessary implication; and certain\nfunctions necessary to the discharge of the President\xe2\x80\x99s constitutional\nduties and powers.\xe2\x80\x9d White House Employees, 19 Op. O.L.C. at 235. 1\nLater that same year, we issued an opinion concerning the participation\nof Department of Justice officials in congressional hearings held during\nan appropriations lapse. That opinion contained further analysis potentially relevant to White House Office operations during such a time. We\nnoted that \xe2\x80\x9cthose officers who are appointed by the President with the\nadvice and consent of the Senate\xe2\x80\x9d\xe2\x80\x94so-called \xe2\x80\x9cPAS officers\xe2\x80\x9d\xe2\x80\x94are \xe2\x80\x9centitled to their salaries by virtue of the office that they hold and without\nregard to whether they perform any services during the period of appropriations lapse.\xe2\x80\x9d Participation in Congressional Hearings During an\nAppropriations Lapse, 19 Op. O.L.C. 301, 301\xe2\x80\x93 02 (1995) (\xe2\x80\x9cCongressional Hearings\xe2\x80\x9d) (citing United States v. Grant, 237 F.2d 511 (7th Cir.\n1956)). We thus concluded that the Antideficiency Act was \xe2\x80\x9cnot implicated at all\xe2\x80\x9d by such officers\xe2\x80\x99 activities, because \xe2\x80\x9cno federal officer or employee incurs an obligation in advance of appropriations when these\nofficers perform services; instead, this obligation arises by virtue of their\nstatus and cannot be obviated by placing them on furlough status.\xe2\x80\x9d Id.\nYou have asked whether, in light of these opinions, White House officials who are exempt from the Annual and Sick Leave Act pursuant to\n1 We also emphasized that even if salary funds could sometimes be obligated, \xe2\x80\x9cno salaries c[ould] be paid to any government employee, including those in the White House\n[O]ffice, without an appropriation,\xe2\x80\x9d and thus that \xe2\x80\x9cno White House employee could\nreceive salary or other compensation payments during such a lapse.\xe2\x80\x9d White House Employees, 19 Op. O.L.C. at 235; see also U.S. Const. art. I, \xc2\xa7 9, cl. 7 (\xe2\x80\x9cNo Money shall be\ndrawn from the Treasury, but in Consequence of Appropriations made by Law.\xe2\x80\x9d).\n\n41\n\n\x0c35 Op. O.L.C. 40 (2011)\n\n5 U.S.C. \xc2\xa7 6301(2)(x) and (xi) may continue to work during a lapse in the\nappropriations for their salaries. Although such officials are not specifically mentioned in the White House Employees opinion and are not appointed with the advice and consent of the Senate, you explain that, in\nyour view, such persons are (like PAS officers) \xe2\x80\x9centitled to compensation\nbased on their status.\xe2\x80\x9d E-mail for Caroline D. Krass, Principal Deputy\nAssistant Attorney General, Office of Legal Counsel, from Donald B.\nVerrilli, Deputy Counsel to the President (Mar. 12, 2011) (citing 5 U.S.C.\n\xc2\xa7 5508 and Grant, 237 F.2d 511). As a result, you conclude, \xe2\x80\x9cthe government is \xe2\x80\x98authorized by law\xe2\x80\x99 within the meaning of 31 U.S.C. 1341\xe2\x80\x9d to\n\xe2\x80\x9ccontinue to . . . emplo[y]\xe2\x80\x9d such persons \xe2\x80\x9cin the absence of appropriations.\xe2\x80\x9d Id. We agree: In our view, such officials are entitled to compensation based on their status rather than the hours they work, and the government is authorized by law to allow them to continue to work during a\nlapse in appropriations.\nII.\nThe Annual and Sick Leave Act of 1951, codified as amended at\n5 U.S.C. \xc2\xa7\xc2\xa7 6301\xe2\x80\x936391 (2006 & Supp. III 2009) (the \xe2\x80\x9cLeave Act\xe2\x80\x9d), sets\nforth the terms under which federal government employees earn annual\nand sick leave. Section 6301 defines \xe2\x80\x9cemployee\xe2\x80\x9d for purposes of the\nLeave Act, and specifically excludes from its coverage certain categories of persons. As relevant here, section 6301(2)(x) excludes from the\nLeave Act \xe2\x80\x9cofficer[s] in the executive branch . . . who [are] appointed by\nthe President and whose rate of basic pay exceeds the highest rate payable under [the GS schedule],\xe2\x80\x9d and section 6301(2)(xi) excludes from\nthe Act \xe2\x80\x9cofficer[s] in the executive branch . . . who [are] designated by\nthe President, except a postmaster, United States attorney, or United\nStates marshal.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 6301(2)(x), (xi). White House officials who\nfall within either of these paragraphs are not covered by the Leave Act. 2\nSection 5508 of title 5, which works in harmony with section 6301,\nprovides that \xe2\x80\x9cofficer[s] in the executive branch . . . to whom [the Leave\nWe assume for the purposes of this opinion that there are White House officials who\nare in fact covered by these paragraphs. We have not independently analyzed whether\nparticular officials are so covered and express no view about the scope of 5 U.S.C.\n\xc2\xa7 6301(2)(x) and (xi).\n2\n\n42\n\n\x0cAuthority to Employ White House Officials During Appropriations Lapse\n\nAct] applies are not entitled to the pay of their offices solely because of\ntheir status as officers.\xe2\x80\x9d This provision does not expressly address the\nentitlements of officials to whom the Leave Act does not apply. But by\nproviding that officers who are covered by the Act do not earn pay by\nvirtue of their status, it suggests by negative implication that officers who\nare exempt from the Act\xe2\x80\x94including those exempt under 5 U.S.C.\n\xc2\xa7 6301(2)(x) or (xi)\xe2\x80\x94do earn their salaries by virtue of their status. See\n61 Comp. Gen. 586, 587 (1982) (\xe2\x80\x9cThe importance of that section for our\npurposes is that . . . the converse, that officers who are not so covered are\nentitled to compensation solely because of their status as officers, is also\ntrue.\xe2\x80\x9d); cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (supporting the conclusion that Title VII \xe2\x80\x9cwas clearly intended to apply with\nrespect to the employment of aliens inside any State\xe2\x80\x9d with \xe2\x80\x9ca negative\ninference from the exemption in \xc2\xa7 702, which provides that Tit[le] VII\n\xe2\x80\x98shall not apply to an employer with respect to the employment of aliens\noutside any State\xe2\x80\x99\xe2\x80\x9d (quoting 42 U.S.C. \xc2\xa7 2000e-1)). This implication\ngains force from the fact that, as far as we are aware, no other provision\nin the Leave Act or title 5 addresses in terms the categories of officials\nwho are entitled to salaries based on their status. Instead, section 5508\nappears to be the only provision that discusses this subject.\nFurthermore, the statutory text now found in section 5508 and section\n6301(2)(x) and (xi) was enacted against a well-established \xe2\x80\x9cbackground\nof common-law principles,\xe2\x80\x9d Samantar v. Yousuf, 130 S. Ct. 2278, 2290\nn.13 (2010) (internal quotation marks omitted), governing officer pay.\nPrior to 1953, when these provisions were first enacted, it had long been\nthe rule that \xe2\x80\x9cthe right to the compensation attached to a public office is\nan incident to the title to the office and not to the exercise of the functions\nof the office.\xe2\x80\x9d 24 Comp. Gen. 45, 46 (1944); see also Grant, 237 F.2d at\n515 (\xe2\x80\x9cCongress in 1953 . . . recognized that prior thereto various officers,\nincluding United States marshals, were entitled to receive their salaries as\nincident to their respective offices.\xe2\x80\x9d); Pack v. United States, 41 Ct. Cl.\n414, 429 (1906) (\xe2\x80\x9c[T]he compensation annexed to a public office is incident to the title to the office and not to the exercise of the functions of\nsuch office.\xe2\x80\x9d); Sleigh v. United States, 9 Ct. Cl. 369, 375 (1873) (\xe2\x80\x9cThe\nincumbent of an office is prima facie entitled to the lawful compensation\nthereof so long as he holds the office, though he may be disabled by\ndisease or bodily injury from performing its duties.\xe2\x80\x9d); 46 C.J., Officers\n43\n\n\x0c35 Op. O.L.C. 40 (2011)\n\n\xc2\xa7 233, at 1015\xe2\x80\x9316 & nn.29\xe2\x80\x9331 (1928) (collecting cases). A federal officer\nreceived his salary for as long as he held title to his office, and \xe2\x80\x9cthe failure of an officer to perform the duties of his office d[id] not per se deprive him of the right to compensation, provided his conduct d[id] not\namount to an abandonment of the office.\xe2\x80\x9d 24 Comp. Gen. at 46; see also\n23 Comp. Treas. 383, 385 (1917). This rule operated even where these\nofficers were covered by a federal leave system, and even where the leave\nlaws enabled them to receive a lump-sum payment covering accumulated\nleave. See 25 Comp. Gen. 212, 220 (1945) (advising that \xe2\x80\x9cPresidential\nOfficers\xe2\x80\x9d whose \xe2\x80\x9csalaries can not [sic] be reduced if they are absent from\nduty\xe2\x80\x9d may receive \xe2\x80\x9clump-sum payment for accumulated and accrued\nannual leave\xe2\x80\x9d) (citing 24 Comp. Gen. 804 (1945)); S. Rep. No. 83-294,\nat 2 (1953) (noting the \xe2\x80\x9cdouble advantage of these officers to statutory\nleave benefits and freedom to absent themselves from duty as they see\nfit\xe2\x80\x9d).\nIn 1953, Congress amended the Leave Act in two significant respects.\nFirst, through the provisions subsequently codified at section 6301(2)(x)\nand (xi), it removed from the coverage of the Act certain \xe2\x80\x9cofficers in the\nexecutive branch of the Government,\xe2\x80\x9d including presidential appointees\npaid above the highest GS level and \xe2\x80\x9csuch other officers (except postmasters, United States attorneys, and United States marshals) as may be\ndesignated by the President.\xe2\x80\x9d Pub. L. No. 83-102, \xc2\xa7 1, 67 Stat. 136\n(1953). Second, in the provision codified at section 5508, it directed that\n\xe2\x80\x9c[n]o officer in the executive branch of the Government . . . to whom\n[the Leave Act] applies shall be deemed to be entitled to the compensation attached to his office solely by virtue of his status as an officer.\xe2\x80\x9d\nId. Through these amendments, Congress \xe2\x80\x9cintended to and did effect a\nchange in the law\xe2\x80\x9d governing officers\xe2\x80\x99 entitlement to compensation,\nGrant, 237 F.2d at 515, but this deviation from the background commonlaw rule was limited to those officers still covered by the Leave Act.\nBecause section 5508 does not purport to alter the law for officers exempt\nfrom the Leave Act, we \xe2\x80\x9cinterpret the statute with the presumption that\nCongress intended to retain the substance of the common law,\xe2\x80\x9d which in\nthis case provided that officers are entitled to compensation by virtue of\nholding office. Samantar, 130 S. Ct. at 2290 n.13; see also Isbrandtsen\nCo. v. Johnson, 343 U.S. 779, 783 (1952) (\xe2\x80\x9cStatutes which invade the\ncommon law . . . are to be read with a presumption favoring the retention\n44\n\n\x0cAuthority to Employ White House Officials During Appropriations Lapse\n\nof long-established and familiar principles, except when a statutory purpose to the contrary is evident.\xe2\x80\x9d).\nThis interpretation of sections 5508 and 6301 is supported by their legislative history. The committee reports explain that the addition of section\n6301(2)(x) and (xi) was intended to eliminate the covered officers\xe2\x80\x99 \xe2\x80\x9cadvantage . . . in being eligible to receive the benefits of a statutory leave\nsystem and, at the same time, being exempted, in effect, from the obligations of such leave system to the extent that by the nature of their offices\nand positions they have freedom to absent themselves from duty from\ntime to time.\xe2\x80\x9d H.R. Rep. No. 83-629, at 7 (1953) (Conf. Rep.); S. Rep.\nNo. 83-294, at 1\xe2\x80\x932. Significantly, Congress achieved this end not by\nabrogating the common-law rule entitling such officers to pay by virtue of\ntheir status, but rather by withdrawing those officers\xe2\x80\x99 entitlement to\nbenefits under the statutory leave system, leaving the background rule\nintact. And while the addition of section 5508 expressly addressed only\nthose officers who do not earn salary based solely on their status (i.e.,\nthose still covered by the Leave Act under section 6301), the reports\nexplain that this provision was also intended to \xe2\x80\x9csettl[e] the basic question\nof which officers shall be entitled in the future to the compensation attached to their office by virtue of their status as an officer.\xe2\x80\x9d S. Rep. No.\n83-294, at 1\xe2\x80\x932. Thereafter, \xe2\x80\x9c[o]fficers removed from . . . Leave Act coverage would be regarded as being entitled to the compensation of their\noffices by virtue of their officer status.\xe2\x80\x9d Id. at 3; H.R. Rep. No. 83-629,\nat 7 (\xe2\x80\x9c[O]fficers exempted from the Annual and Sick Leave Act of 1951\nwill retain their freedom to absent themselves from duty on their own\nvolition[.]\xe2\x80\x9d). We accordingly conclude that Executive Branch officials\n(including those in the White House) exempt from the Leave Act under\nsection 6301(2)(x) and (xi) earn their salaries by virtue of holding office.\nIII.\nWe further conclude that officials who are exempt from the Leave Act\nand therefore earn salaries by virtue of holding office are \xe2\x80\x9cauthorized by\nlaw\xe2\x80\x9d to continue to work during a lapse in the appropriations for their\nsalaries. 31 U.S.C. \xc2\xa7 1341(a)(1)(B). 3 As noted above, our 1995 White\n3 We assume that such officials receive no other form of compensation whose continuation during an appropriations lapse would incur any additional government obligation.\n\n45\n\n\x0c35 Op. O.L.C. 40 (2011)\n\nHouse Employees opinion concluded that the functions \xe2\x80\x9cauthorized by\nlaw\xe2\x80\x9d to proceed during an appropriations lapse include \xe2\x80\x9cthose functions as\nto which express statutory authority to incur obligations in advance of\nappropriations has been granted,\xe2\x80\x9d and \xe2\x80\x9cthose functions for which such\nauthority arises by necessary implication.\xe2\x80\x9d 19 Op. O.L.C. at 235. In\ndiscussing the same categories of functions in an earlier opinion, Attorney\nGeneral Civiletti explained that when \xe2\x80\x9can agency\xe2\x80\x99s regular one-year\nappropriations lapse, the \xe2\x80\x98authorized by law\xe2\x80\x99 exception to the Antideficiency Act would permit the agency to continue the obligation of funds to\nthe extent that such obligations are,\xe2\x80\x9d among other things, \xe2\x80\x9c[1] authorized\nby statutes that expressly permit obligations in advance of appropriations;\nor [2] authorized by necessary implication from the specific terms of\nduties that have been imposed on, or of authorities that have been invested\nin, the agency.\xe2\x80\x9d Authority for the Continuance of Government Functions\nDuring a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981)\n(\xe2\x80\x9cContinuance of Government Functions\xe2\x80\x9d).\nWe are not aware of any law that \xe2\x80\x9cexpressly permit[s] obligations in\nadvance of appropriations\xe2\x80\x9d for salaries paid to White House Office officials who are not subject to the Leave Act. Id. However, we believe the\nauthority to continue the obligation for these officials\xe2\x80\x99 salaries during a\nlapse in appropriations arises \xe2\x80\x9cby necessary implication from the specific\nterms of\xe2\x80\x9d the President\xe2\x80\x99s authority to appoint or designate officials who\nearn pay by virtue of their status. Id. We understand that \xe2\x80\x9cmost White\nHouse [O]ffice employees are appointed under [section 105 of title 3] or a\nsimilarly formulated authority.\xe2\x80\x9d White House Employees, 19 Op. O.L.C.\nat 236. That provision grants the President authority to \xe2\x80\x9cappoint and fix\nthe pay of employees in the White House Office without regard to any\nother provision of law regulating the employment or compensation of\npersons in the Government service,\xe2\x80\x9d subject to salary caps that are higher\nthan the top of the GS scale. 3 U.S.C. \xc2\xa7 105(a). 4 On its face, this provision\n4 We do not believe this authorization is sufficiently clear to constitute the kind of \xe2\x80\x9cexpress[] permi[ssion]\xe2\x80\x9d to obligate in advance of appropriations we identified in our 1981\nopinion. Continuance of Government Functions, 5 Op. O.L.C. at 3\xe2\x80\x934 & n.3. Unlike\nsection 105, other statutes we have previously included in that category expressly reference the authority to incur obligations in advance of appropriations. See, e.g., 25 U.S.C.\n\xc2\xa7 99 (authorizing the Commissioner of Indian Affairs to \xe2\x80\x9center into contracts . . . for\ngoods and supplies . . . notwithstanding the fact that the appropriations for such fiscal\n\n46\n\n\x0cAuthority to Employ White House Officials During Appropriations Lapse\n\nconfers on the President authority to \xe2\x80\x9cappoint\xe2\x80\x9d persons to work in the\nWhite House Office and to fix their \xe2\x80\x9crate of basic pay\xe2\x80\x9d at a rate that\n\xe2\x80\x9cexceeds the highest rate payable\xe2\x80\x9d under the GS scale. See Memorandum\nfor Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,\nActing Assistant Attorney General, Office of Legal Counsel, Presidential\nAuthority under 3 U.S.C. \xc2\xa7 105(a) to Grant Retroactive Pay Increases to\nStaff Members of the White House Office at 2 (July 30, 1993) (\xe2\x80\x9cWe believe that, in view of this sweeping language, section 105(a)(1) allows the\nPresident complete discretion to adjust the pay for White House Office\nemployees\xe2\x80\x99 work in any manner that he chooses, as long as he complies\nwith the salary limits of section 105(a)(2).\xe2\x80\x9d). Officers so appointed fall\nwithin section 6301(2)(x) of the Leave Act and (as a result) earn salary by\nvirtue of their status under section 5508. 5 Section 6301(2)(xi) likewise\nrecognizes the President\xe2\x80\x99s authority to \xe2\x80\x9cdesignate\xe2\x80\x9d other Executive\nBranch officers (except postmasters, U.S. attorneys, or U.S. marshals) as\nexempt from the Leave Act, again ensuring that they earn salary based on\ntheir status.\nWe think the \xe2\x80\x9cspecific terms\xe2\x80\x9d of these presidential authorities \xe2\x80\x9cnecessar[ily] impl[y]\xe2\x80\x9d the further authority to continue to incur obligations for\nyear have not been made\xe2\x80\x9d); see also 42 U.S.C. \xc2\xa7 2210(j) (authorizing the Atomic Energy\nCommission to \xe2\x80\x9cmake contracts in advance of appropriations and incur obligations\nwithout regard to sections 1341 [and] 1342 . . . of title 31\xe2\x80\x9d). Furthermore, we do not read\nthe permission in section 105 to make appointments \xe2\x80\x9cwithout regard to any other provision of law regulating the employment or compensation of [federal employees]\xe2\x80\x9d to mean\nthat such actions are outside the purview of the Antideficiency Act altogether. Cf. Am.\nHosp. Ass\xe2\x80\x99n v. Bowen, 834 F.2d 1037, 1054 (D.C. Cir. 1987) (\xe2\x80\x9cWe believe the plain\nmeaning of the exemption codified in 42 U.S.C. \xc2\xa7 1320c-2(e) [authorizing the Secretary\nto contract \xe2\x80\x98without regard to any provision of law relating to the making, performance,\namendment, or modification of contracts\xe2\x80\x99] is to exempt HHS from those laws \xe2\x80\x98relating to\nthe making, performance, amendment or modification of contracts\xe2\x80\x99\xe2\x80\x94that is, the vast\ncorpus of laws establishing rules regarding the procurement of contracts from the government. To include among this rather self-contained corpus the general restraints of the\nAdministrative Procedure Act is a step we decline to make without more specific evidence that Congress intended to exempt HHS from the requirements of the APA.\xe2\x80\x9d (citation omitted)).\n5 You have not asked us to consider whether section 105 gives the President authority\nto exempt White House personnel from the Leave Act even if they do not fall within any\nof the exemptions listed in section 6301, and we express no view about that question, or\nabout the question whether any such personnel would be \xe2\x80\x9cauthorized by law\xe2\x80\x9d to perform\nservice during a lapse in appropriations.\n\n47\n\n\x0c35 Op. O.L.C. 40 (2011)\n\nthe salaries of such exempted officers in the absence of appropriations.\nContinuance of Government Functions, 5 Op. O.L.C. at 5. As discussed\nabove, officials who fall within section 6301(2)(x) or (xi) are, by virtue of\nsection 5508, \xe2\x80\x9centitled to the pay of their offices solely because of their\nstatus as officers.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5508. Such an entitlement to salary, and the\ncorresponding government obligation to fulfill it, is unaffected by the\nofficial\xe2\x80\x99s absence from the duties of his office. Grant, 237 F.2d at 515\n(holding that the salary of an officer so entitled \xe2\x80\x9cbelonged to him as an\nincident to his office and was in no way impaired by his alleged absence\ntherefrom or neglect to perform his official duties\xe2\x80\x9d); see also 24 Comp.\nGen. 45, 46 (1944). As we noted in our Congressional Hearings opinion,\nthis means that the government cannot avoid this obligation during a lapse\nin appropriations simply by placing the official on furlough status. 19 Op.\nO.L.C. at 302.\nGiven the President\xe2\x80\x99s clear statutory authority to appoint and designate\nofficials with these kinds of broad salary entitlements, see 3 U.S.C.\n\xc2\xa7 105(a)(1); 5 U.S.C. \xc2\xa7\xc2\xa7 5508, 6301, and given the Antideficiency Act\xe2\x80\x99s\nexpress exceptions for obligations exceeding appropriations where \xe2\x80\x9cauthorized by law,\xe2\x80\x9d see 31 U.S.C. \xc2\xa7\xc2\xa7 1341, 1342, we think the best way to\nreconcile the two statutory schemes is to interpret sections 5508 and 6301\nof the Leave Act and section 105 of title 3 as implicitly \xe2\x80\x9cauthoriz[ing]\xe2\x80\x9d\nthe President \xe2\x80\x9cby law\xe2\x80\x9d to incur such salary obligations in advance of\nappropriations. Cf. Continuance of Government Functions, 5 Op. O.L.C.\nat 4 (\xe2\x80\x9c[W]hen Congress specifically authorizes contracts to be entered\ninto for the accomplishment of a particular purpose, the delegated officer\nmay negotiate such contracts even before Congress appropriates all the\nfunds necessary for their fulfillment.\xe2\x80\x9d). 6 If the President\xe2\x80\x99s statutory authority to appoint and designate officials who earn salaries by virtue of\ntheir status did not implicitly include the authority to obligate funds for\nthose salaries in advance of appropriations, compliance with the Antideficiency Act would arguably require him to appoint such officials to terms\nlimited to the fiscal year (so as to avoid incurring an indefinite obligation\nAs we understand it, your question concerns only officials who currently work in the\nWhite House Office. You have not asked us to consider, and we express no opinion about,\nwhether the President could, during an appropriations lapse, appoint or designate new\nofficials who are exempt from the Leave Act and therefore entitled to earn salary by\nvirtue of their status.\n6\n\n48\n\n\x0cAuthority to Employ White House Officials During Appropriations Lapse\n\nthat potentially exceeded the current year\xe2\x80\x99s appropriations), to remove\nsuch officials during any lapse in appropriations or require them to resign,\nor otherwise to find a way to avoid involving the government in an obligation that exceeded available appropriations. See 31 U.S.C. \xc2\xa7\xc2\xa7 1341,\n1342. 7 But there is no indication in sections 5508 or 6301 of the Leave\nAct or section 105 of title 3 that, in authorizing the President to create\nbroad salary obligations for officers who earn pay by virtue of their status,\nCongress simultaneously intended to limit the President\xe2\x80\x99s appointment\nauthority in any of the ways described above. Nor are we aware of any\nevidence that the Executive has imposed such restrictions as a matter of\npractice.\nThis conclusion is consistent with that reached by the Comptroller\nGeneral in an opinion concerning whether Commissioners of the Copyright Royalty Tribunal could be paid for work performed during a lapse in\nthe Tribunal\xe2\x80\x99s appropriations. 61 Comp. Gen. 586 (1982). In that opinion,\nthe Comptroller General reasoned that the Commissioners were exempt\nfrom the Leave Act under section 6301(2)(xiii)\xe2\x80\x94a provision similar to\nsection 6301(2)(x) and (xi) but directed at presidentially appointed\n\xe2\x80\x9cofficer[s] in the legislative or judicial branch\xe2\x80\x9d\xe2\x80\x94and were therefore\n\xe2\x80\x9centitled to compensation based on their status as officers rather than for\nthe performance of a function based on the amount of hours they spend\nengaged at their jobs.\xe2\x80\x9d Id. at 587. The Comptroller General then concluded that, in light of this entitlement, \xe2\x80\x9cthe incurring of obligations for the\nCommissioners\xe2\x80\x99 pay in the absence of sufficient available appropriations\nto liquidate them is authorized by law within the meaning of the [Continuance of Government Functions opinion].\xe2\x80\x9d Id.\nGiven that the President is \xe2\x80\x9cauthorized by law\xe2\x80\x9d to continue the obligation for the salaries of officials exempt from the Leave Act under section\n6301(2)(x) or (xi) during a lapse in appropriations, the final question\nwhether such officials can continue to work during a lapse is straightforward. As we noted in our Congressional Hearings opinion with respect to\nPAS officers, because such officials \xe2\x80\x9care entitled to their salaries by virtue\nIncurring an obligation to pay any particular official\xe2\x80\x99s salary, of course, might be\njustified for particular periods based on other exceptions to the Antideficiency Act. See\nMemorandum for Alice Rivlin, Director, Office of Management and Budget, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Government Operations in the Event of a Lapse in Appropriations at 3\xe2\x80\x934 (Aug. 16, 1995).\n7\n\n49\n\n\x0c35 Op. O.L.C. 40 (2011)\n\nof the office[s] that they hold and without regard to whether they perform\nany services,\xe2\x80\x9d no further obligation in advance or in excess of appropriations is incurred when they \xe2\x80\x9cperform services.\xe2\x80\x9d 19 Op. O.L.C. at 301\xe2\x80\x9302;\nsee 31 U.S.C. \xc2\xa7\xc2\xa7 1341, 1342. The funds for these officials\xe2\x80\x99 salaries having\nalready been lawfully obligated, \xe2\x80\x9cthe [Antideficiency] Act is not implicated at all\xe2\x80\x9d when they choose or are directed to continue to work during a\nlapse in appropriations. Congressional Hearings, 19 Op. O.L.C. at 301.\nIV.\nTo summarize, we concluded in our White House Employees opinion\nthat, during a lapse in appropriations, the Antideficiency Act permits the\nWhite House to employ personnel who \xe2\x80\x9cperform functions that are excepted from the Antideficiency Act\xe2\x80\x99s general prohibition\xe2\x80\x9d because the\nobligation for their salaries during a lapse is \xe2\x80\x9cauthorized by law.\xe2\x80\x9d 19 Op.\nO.L.C. at 235. For the reasons set forth above, we now conclude that\nsuch personnel include officials who are exempt from the provisions of\nthe Annual and Sick Leave Act under 5 U.S.C. \xc2\xa7 6301(2)(x) and (xi),\nbecause the President\xe2\x80\x99s authority to appoint such officials necessarily\nimplies the authority to continue the obligations for their salaries during\na lapse in appropriations. Accordingly, such officials may work during a\nlapse in appropriations, so long as the employment of their services does\nnot create any other obligation on behalf of the government.\nKARL R. THOMPSON\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n50\n\n\x0c'