b'Status of Presidential Memorandum on Use of the\nPolygraph in the Executive Branch\nAn undated four-page memorandum from President Lyndon Johnson entitled \xe2\x80\x9cUse of the\nPolygraph in the Executive Branch\xe2\x80\x9d and addressed to the heads of Executive Branch\ndepartments and agencies, which was neither issued as a directive to the Executive\nBranch nor understood contemporaneously to have legal effect, does not now bind the\nDepartment of Justice or other entities within the Executive Branch.\nJanuary 14, 2009\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nJUSTICE MANAGEMENT DIVISION\nYou have asked for our views on the validity of an undated four-page\nmemorandum from President Lyndon Johnson entitled \xe2\x80\x9cUse of the Polygraph in the Executive Branch\xe2\x80\x9d and addressed to the heads of Executive\nBranch departments and agencies. Memorandum to the Heads of Departments and Agencies, Use of the Polygraph in the Executive Branch\n(\xe2\x80\x9cJohnson Memorandum\xe2\x80\x9d or \xe2\x80\x9cMemorandum\xe2\x80\x9d), Ex PE1 10/1/64, Box 4,\nWhite House Central Files (\xe2\x80\x9cWHCF\xe2\x80\x9d), Lyndon Baines Johnson Library\n(\xe2\x80\x9cLBJL\xe2\x80\x9d). You state that you have previously relied on the Johnson\nMemorandum in providing advice regarding polygraph use in the Department of Justice, but that a September 2006 report by the Office of the\nInspector General called into question whether the Johnson Memorandum was ever issued, and whether it has legal effect. See Office of the\nInspector General, Dep\xe2\x80\x99t of Justice, Use of Polygraph Examinations in\nthe Department of Justice at 2\xe2\x80\x935 (Sept. 2006) (\xe2\x80\x9cOIG Report\xe2\x80\x9d), www.\nusdoj.gov/oig/reports/plus/e0608/final.pdf. The Johnson Memorandum\nstates that \xe2\x80\x9cto prevent unwarranted intrusions into the privacy of individuals . . . use of the polygraph is prohibited\xe2\x80\x9d in the Executive Branch,\nsubject to three \xe2\x80\x9climited exceptions.\xe2\x80\x9d Johnson Memorandum at 1.\nBased on our examination of the historical record, we conclude that\nwhile President Johnson apparently signed the Memorandum in January\n1967, he did not issue it as a directive to the Executive Branch, nor was\nthe document understood contemporaneously to have legal effect. Even\nassuming the Memorandum did take effect at the time of signature, uncontroverted evidence demonstrates that President Johnson gave subsequent directions to his subordinates sufficient to revoke the Memorandum\n114\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nand deny it further legal effect. It is our view, therefore, that the Memorandum does not now bind the Department of Justice or other entities\nwithin the Executive Branch. 1\nI.\nThe Johnson Memorandum states that \xe2\x80\x9cto prevent unwarranted intrusions into the privacy of individuals . . . use of the polygraph is prohibited\xe2\x80\x9d in the Executive Branch, with three \xe2\x80\x9climited exceptions.\xe2\x80\x9d Id. at 1.\nFirst, it states that an Executive Branch entity with \xe2\x80\x9can intelligence or\ncounter-intelligence mission directly affecting the national security\xe2\x80\x9d may\nuse polygraphs for \xe2\x80\x9cemployment screening and personnel investigations,\nand in intelligence and counter-intelligence operations,\xe2\x80\x9d after complying\nwith certain procedural and substantive requirements. For polygraph use\n\xe2\x80\x9cin intelligence and counter-intelligence operations,\xe2\x80\x9d it states that an\nagency must \xe2\x80\x9cprepare regulations and directives governing the use of the\npolygraph\xe2\x80\x9d to be approved by the agency head. For polygraph use \xe2\x80\x9cin\nemployment screening and personnel investigations,\xe2\x80\x9d it states that a\nbroader set of requirements applies: an agency must prepare regulations\nsubject to the review and approval of the Chairman of the Civil Service\nCommission containing enumerated procedural and substantive protections, including advance notice to the subject of a polygraph examination\nabout his privilege against self-incrimination, the effect of the results of\nthe polygraph examination (or refusal to consent) on eligibility for employment, and an assurance that refusal to consent to a polygraph will not\nbe made part of a personnel file. Id. at 1\xe2\x80\x932. 2 Second, the Memorandum\nwould permit executive departments and agencies to use polygraphs \xe2\x80\x9cin\naid of criminal investigations\xe2\x80\x9d after they promulgate regulations or direcThe Office of Personnel Management interprets its authority to review and approve\nagency polygraph policies as deriving from general statutory authority to administer the\ncivil service rules and regulations, 5 U.S.C. \xc2\xa7 1103(a)(5)(A) (2006); authority under\nExecutive Order 10577 of November 22, 1954, as amended, to establish standards for\ndetermining the suitability of applicants and appointees to the competitive service; and its\nauthority under Executive Order 10450 of April 27, 1953, as amended, to investigate\npersons entering or employed in the competitive service, including investigations for\nsensitive national security positions.\n2 Pursuant to the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111,\nthe management functions of the Civil Service Commission have been transferred to the\nOffice of Personnel Management.\n1\n\n115\n\n\x0c33 Op. O.L.C. 114 (2009)\n\ntives subject to the approval of the Attorney General and containing\nsimilar procedural and substantive protections, including advance notice\nof the subject\xe2\x80\x99s privilege against self-incrimination, right to refuse to\nsubmit to the examination, and, in the case of a federal employee, an\naffirmation that refusal to consent to a polygraph will not result in an\nadverse action against the employee and will not be made part of an\nemployee\xe2\x80\x99s personnel file. Id. at 3. Third, the Memorandum would allow\npolygraph use \xe2\x80\x9cto record physiologic variables in bona fide research and\ndevelopment projects.\xe2\x80\x9d Id. at 3\xe2\x80\x934.\nTo understand the legal status of the Johnson Memorandum requires an\nin-depth examination of the historical record. In June 1963, following\npublic criticism of efforts by the Department of Defense to use polygraph\nexaminations during a leak investigation, the Chairman of the House\nGovernment Operations Committee directed that a comprehensive study\nbe undertaken of polygraph use in the Executive Branch. The resulting\nreport, published in March 1965, was critical of polygraph technology and\nthe existing qualifications and supervision of federal polygraph operators,\nand it called on the Johnson Administration to prohibit the use of polygraphs \xe2\x80\x9cin all but the most serious national security and criminal cases.\xe2\x80\x9d\nSee H.R. Rep. No. 89-198, at 1\xe2\x80\x932 (1965). In November 1965, President\nJohnson established an interagency committee (the \xe2\x80\x9cCommittee\xe2\x80\x9d) to study\nExecutive Branch polygraph use; the Committee consisted of representatives from the Department of Defense, Bureau of the Budget, Office of\nScience and Technology, Department of Justice, and Central Intelligence\nAgency, and it was chaired by John W. Macy, Jr., Chairman of the Civil\nService Commission. 3\nOn July 29, 1966, the polygraph Committee transmitted to the President\na report and draft memorandum to heads of Executive Branch departments\nand agencies, which (but for the absence of the President\xe2\x80\x99s signature), is\nidentical to the Johnson Memorandum. Given the \xe2\x80\x9cwide divergence of\nopinion\xe2\x80\x9d on polygraph reliability, general inadmissibility of polygraph\nresults in judicial proceedings, and \xe2\x80\x9cinvasion of privacy of the individual\nbeing interrogated,\xe2\x80\x9d the interagency Committee recommended to the\nSee Civil Service Commission Memorandum for the President at 1 (July 29, 1966)\n(\xe2\x80\x9cCommission Memorandum\xe2\x80\x9d); see also Office of Technology Assessment, Scientific\nValidity of Polygraph Testing 34 (1983) (discussing establishment and work of interagency Committee).\n3\n\n116\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nPresident that polygraph use be prohibited in the Executive Branch except\nfor the three limited circumstances (and subject to the enumerated protections) described in the Johnson Memorandum. 4 Although the surviving\ncopy of the Johnson Memorandum is undated, correspondence with senior\nWhite House staff suggests President Johnson initially reviewed and\napproved the report and draft Memorandum in substance on or about\nDecember 30, 1966 and signed the Memorandum between January 11 and\nJanuary 14, 1967. 5\nA review of White House records from the Johnson Administration reveals several indications that the Johnson Memorandum was never issued.\nNeither the published Weekly Compilation of Presidential Documents,\nnor the Johnson White House\xe2\x80\x99s internal collection of presidential memoranda issued to heads of departments and agencies, contains a copy. 6 The\nsurviving copy of the Memorandum in the official records of the Johnson\nAdministration was deposited in the White House Central Files with a\ncover note from the chief clerk of the White House files, stating: \xe2\x80\x9cI don\xe2\x80\x99t\nthink this was ever circulated or released. It was held up on instructions\nafter signature.\xe2\x80\x9d 7 We have consulted several agencies and Department\n\nSee Commission Memorandum at 1\xe2\x80\x932.\nOn January 11, John Macy wrote to the President attaching \xe2\x80\x9cfor your signature\xe2\x80\x9d the\nMemorandum \xe2\x80\x9cas approved by you on December 30.\xe2\x80\x9d See Memorandum for the President\nfrom John W. Macy, Jr. (Jan. 11, 1967), Ex PE1 10/1/64, Box 4, WHCF, LBJL. On\nJanuary 14, Macy wrote to White House Press Secretary George Christian attaching a\nsigned copy of the Johnson Memorandum and stating: \xe2\x80\x9cIn view of the President\xe2\x80\x99s approval of the attached memorandum to department and agency heads, the attached press\nrelease is available for press office use at whatever time you and the President decide.\xe2\x80\x9d\nSee Memorandum for George Christian, Press Secretary to the President, from John W.\nMacy, Jr. (Jan. 14, 1967), Ex PE1 10/1/64, Box 4, WHCF, LBJL.\n6 This collection is now contained in the presidential archives at LBJL.\n7 Undated note by William J. Hopkins, Ex PE1 10/1/64, Box 4, WHCF, LBJL. According to records at the Johnson Library, Hopkins was a member of the permanent White\nHouse staff who served as Executive Clerk of the White House from 1943 to 1964 and\nlater as Executive Assistant to the President. His note bears annotations from employees\nin the White House Central Files that suggest it was written at the time the Johnson\nMemorandum was signed or when it was deposited in the White House files in January\n1967 or 1969. See E-mail for Jeremy Marwell, Attorney-Adviser, Office of Legal Counsel, from Allen Fisher, Archivist, Lyndon Baines Johnson Library (July 31, 2008). As\ndiscussed below, see infra note 8, the Memorandum bears two date stamps from the\nWhite House Central Files\xe2\x80\x94January 27, 1967 and January 13, 1969.\n4\n5\n\n117\n\n\x0c33 Op. O.L.C. 114 (2009)\n\ncomponents, and none reports any historical record of having received the\nMemorandum from the Johnson White House. 8\nOther contemporaneous evidence from the Johnson White House further supports the view that the signed Memorandum was held up for\nrevisions after the President\xe2\x80\x99s signature and not ultimately released. On\nJanuary 17, 1967, a copy of the Memorandum was sent to Special Assistant to the President for Domestic Policy Joseph Califano to determine\n\xe2\x80\x9cwhether and how this is to be distributed.\xe2\x80\x9d 9 By January 25, Califano had\nvoiced concerns to John Macy about permitting polygraph use in criminal\ninvestigations. 10 In response, the Committee revised its report and draft\nThe agencies and components consulted include the Office of Personnel Management, the Office of Special Counsel, the Merit Systems Protection Board, the Office of\nthe Director of National Intelligence, the Department of the Interior, the Department of\nEnergy, the Criminal Division of the Department of Justice, the Federal Bureau of\nInvestigation, and the Department\xe2\x80\x99s Office of the Inspector General. The version of the\nsigned Memorandum in the archives is itself a photocopy. The Johnson Library has no\nrecord of the original document. A clue to the fate of the original document may be drawn\nfrom the fact that the surviving photocopy bears two White House Central Files date\nstamps, from January 27, 1967 and January 13, 1969. Based on these stamps, it is possible\nthat the original signed Memorandum and surviving photocopy were first deposited in the\nCentral Files on January 27, approximately two weeks after the President\xe2\x80\x99s signature and\nshortly after circulation of a revised draft presidential memorandum that omitted the\n\xe2\x80\x9ccriminal investigation\xe2\x80\x9d exception. See infra note 10 and accompanying text. The second\ndate stamp on the surviving photocopy, and the absence of the original document, may\nsuggest that the documents were at some subsequent point removed from the Central\nFiles, with only the photocopy later re-deposited (acquiring the second date stamp) in the\nfinal weeks of the Administration. That the archives do not contain the original signed\nMemorandum may suggest that it was destroyed, perhaps deliberately, between January\n27, 1967 and the end of the Administration; for instance, the original may have been\ndestroyed upon a final decision by the President to implement the Committee\xe2\x80\x99s recommendations through channels other than a presidential memorandum. See infra text\naccompanying notes 22\xe2\x80\x9325.\n9 See Memorandum for Joseph A. Califano, Jr., from William J. Hopkins (Jan. 17,\n1967), Ex JL, Box 1, WHCF, LBJL. The memo states that \xe2\x80\x9c[Assistant to the White House\nPress Secretary] Tom Johnson now tells me that whether and how this is to be distributed\nis in your hands.\xe2\x80\x9d\n10 See Memorandum for Joseph A. Califano, Jr., from John W. Macy, Jr. (Jan. 25,\n1967), Box 356 (1058), Office Files of James C. Gaither, LBJL (\xe2\x80\x9cJan. 25 Macy Memorandum\xe2\x80\x9d) (circulating versions of report, presidential memorandum, and press release\n\xe2\x80\x9crewritten in accordance with our discussion the other day\xe2\x80\x9d); Letter for Joe Califano from\nHarry C. McPherson (Feb. 2, 1967), Box 356 (1058), Office Files of James C. Gaither,\nLBJL (\xe2\x80\x9cFeb. 2 McPherson Letter\xe2\x80\x9d) (\xe2\x80\x9cJohn Macy has gone back to his inter-departmental\n8\n\n118\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nmemorandum, deleting the exception for criminal investigations that is\ncontained in the version of the memorandum signed by the President, and\ncirculated the revised documents for White House review. 11 Notably, the\nrevised documents included a draft press release that made no mention of\nan earlier policy. 12 Had President Johnson released the signed version of\nthe Memorandum to heads of all departments and agencies only weeks\nearlier, it seems unlikely that a subsequent press release would have been\nsilent about a substantial change to a recent, government-wide directive.\nThis view is further supported by the Johnson Administration\xe2\x80\x99s internal\ndiscussions and public statements about congressional efforts in 1967 and\n1968 to pass legislation restricting the federal government\xe2\x80\x99s use of polygraphs. In February 1967, for instance, Harry McPherson, Special Assistant and Counsel to the President, urged Califano with respect to the\nrevised report and memorandum (which prohibited polygraph use in\ncriminal investigations) to \xe2\x80\x9cgo back to the boss with this and try to get it\nissued\xe2\x80\x9d because, in his view, the Administration \xe2\x80\x9cneed[ed] to do something constructive in this field before Sam Ervin [Chairman of the Subcommittee on Constitutional Rights of the Senate Judiciary Committee]\nstarts to train his guns on [John Macy] again.\xe2\x80\x9d 13 Indeed, Senator Ervin\nintroduced legislation in 1967 (which was not ultimately enacted) that\nwould have restricted polygraph testing of Executive Branch employees\nand job applicants, with limited exceptions. 14 But as late as May 1967, the\n\ncommittee on the use of the polygraph, and they have agreed to eliminate the \xe2\x80\x98criminal\ninvestigation\xe2\x80\x99 exception.\xe2\x80\x9d); see also Draft Memorandum for the President from Joe\nCalifano (undated), Box 356 (1058), Office Files of James C. Gaither, LBJL (\xe2\x80\x9cAs you\nmay recall, the Committee originally recommended allowing the use of the polygraph in\ncriminal investigations, but, upon reconsideration after a meeting between John Macy,\nMcPherson, and me, limited the recommendation to national security cases.\xe2\x80\x9d).\n11 Jan. 25 Macy Memorandum, supra note 10.\n12 See Draft White House Press Release on Use of Polygraph (attachment to Jan. 25\nMacy Memorandum, supra note 10).\n13 See Feb. 2 McPherson Letter, supra note 10; see also Memorandum for Joe Califano, Special Assistant to the President for Domestic Policy, from Jim Gaither, Staff\nAssistant to the President (Mar. 27, 1967), Box 356 (1058), Office Files of James C.\nGaither, LBJL (proposing additional revisions to the report and draft memorandum to be\nmade prior to documents\xe2\x80\x99 release).\n14 See S. 1035, 90th Cong. \xc2\xa7\xc2\xa7 1(f ), 6 (1967) (reprinted in Privacy and the Rights of\nFederal Employees: Hearing Before the Subcomm. on Manpower and Civil Service of\n\n119\n\n\x0c33 Op. O.L.C. 114 (2009)\n\nCivil Service Commission deferred adopting any \xe2\x80\x9cfinal\xe2\x80\x9d position on the\nbill\xe2\x80\x99s polygraph provisions because \xe2\x80\x9c[w]ith respect to the executive\nbranch in general, results of the study by the President\xe2\x80\x99s Inter-Agency\n[Polygraph] Committee . . . have not yet been issued.\xe2\x80\x9d 15\nWe are aware of no historical evidence that President Johnson approved\nthe revised memorandum to agency and department heads. To the contrary, nearly a year later, on April 15, 1968, Macy again wrote to the President asserting that \xe2\x80\x9cthe time is right for Executive Branch action\xe2\x80\x9d on\npolygraphs and enclosing another copy of the revised report and memorandum he had circulated in late January 1967. Although summarizing\nother aspects of the Committee\xe2\x80\x99s work and history, Macy made no mention of the President\xe2\x80\x99s approval of the original report or Memorandum, or\nof any directive issued to heads of departments and agencies at that time.\nFurther, Macy advised the President in April 1968 that \xe2\x80\x9cthere are three\noptions\xe2\x80\x9d available to implement the Committee\xe2\x80\x99s recommendations: \xe2\x80\x9c[a]\nPresidential directive to heads of departments and agencies setting forth\nthe new policy,\xe2\x80\x9d \xe2\x80\x9c[a] Civil Service Commission directive as a Government-wide statement of policy,\xe2\x80\x9d or \xe2\x80\x9c[n]o formal directive or announcement but informal advice from the Civil Service Commission to responsible agency officials.\xe2\x80\x9d 16 Macy\xe2\x80\x99s formulation of the policy options in the\npresent tense (\xe2\x80\x9cthere are three options\xe2\x80\x9d), inclusion of the apparently asyet-unexecuted \xe2\x80\x9coption\xe2\x80\x9d of issuing a presidential memorandum to the\nheads of departments and agencies, and suggestion that the Administration might still choose to have \xe2\x80\x9c[n]o formal directive,\xe2\x80\x9d all suggest the\nearlier Memorandum was not in effect.\n\nthe H. Comm. on Post Office and Civil Service, 90th Cong. 2\xe2\x80\x9320 (1968) (\xe2\x80\x9cPrivacy Hearings\xe2\x80\x9d)).\n15 Letter for Sam J. Ervin, Jr., Chairman, Subcommittee on Constitutional Rights,\nCommittee on the Judiciary, from John C. Macy, Jr., Chairman, Civil Service Commission (May 9, 1967) (emphasis added) (reprinted in Privacy Hearings, supra note 14, at\n57, 61).\n16 Memorandum for the President from John W. Macy, Jr. (Apr. 15, 1968), Box 28,\nFolder Ex PE 6 Investigations, WHCF, LBJL (\xe2\x80\x9cApr. 15 Macy Memorandum\xe2\x80\x9d). Temple\nconcurred with Macy\xe2\x80\x99s recommendation in an April 25 memorandum to the President.\nJohnson instructed Temple to call him to discuss the matter, but available documents do\nnot reveal the outcome. See Memorandum for the President from Larry Temple (Apr. 25,\n1968), Box 28, Folder Ex PE 6 Investigations, WHCF, LBJL.\n\n120\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nWhite House correspondence further suggests that as late as June 1968,\nthe Johnson Administration still had not taken any definitive action on the\ninteragency Committee\xe2\x80\x99s report. In that month, the House Subcommittee\non Manpower and Civil Service called John Macy to testify on Executive\nBranch polygraph use in connection with hearings on Senator Ervin\xe2\x80\x99s\nbill. 17 Macy suggested that he tell Congress \xe2\x80\x9cthe policy of the Executive\nBranch . . . prohibits the use of the polygraph with the limited exception\nof personnel investigations and operations in the intelligence area,\xe2\x80\x9d explain the work of the interagency Committee, and state that \xe2\x80\x9clegislative\naction is not required in view of these administrative steps which have\naccomplished the same purpose.\xe2\x80\x9d 18 The President rejected Macy\xe2\x80\x99s recommendation in favor of the position of Special Counsel Larry E. Temple,\nwho argued that \xe2\x80\x9cthere is much to be said for an expression of Congressional will in this area\xe2\x80\x94even though the recommendations of the InterAgency Committee might be implemented without legislation.\xe2\x80\x9d 19 The\nPresident approved instructions for Macy to testify that \xe2\x80\x9c[t]he Executive\nBranch has not formulated any final position or Government-wide policy\non the use of the polygraph,\xe2\x80\x9d that an interagency study had been undertaken at the President\xe2\x80\x99s direction, and that the legislation under consideration\nwas \xe2\x80\x9cconsistent with and parallel [to] the conclusion reached by this InterAgency Committee.\xe2\x80\x9d 20\n\n17 See Privacy Hearings, supra note 14, at 27\xe2\x80\x9355 (statement of John W. Macy, Jr.,\nChairman, Civil Service Commission).\n18 Memorandum for the President from John W. Macy, Jr. (June 10, 1968), Box 28,\nFolder Ex PE 6 Investigations, WHCF, LBJL (\xe2\x80\x9cJune 10 Macy Memorandum\xe2\x80\x9d).\n19 See Memorandum for the President from Larry Temple (June 10, 1968), Box 28,\nFolder Ex PE 6 Investigations, WHCF, LBJL (emphasis added).\n20 Id. (emphasis added). Temple\xe2\x80\x99s memorandum included lines for the President\xe2\x80\x99s\ndirection entitled \xe2\x80\x9cAgree,\xe2\x80\x9d \xe2\x80\x9cDisagree,\xe2\x80\x9d and \xe2\x80\x9cTell Macy.\xe2\x80\x9d The President checked \xe2\x80\x9cAgree\xe2\x80\x9d\nand \xe2\x80\x9cTell Macy.\xe2\x80\x9d Consistent with Temple\xe2\x80\x99s recommendation (adopted by President\nJohnson) that Macy make a statement about polygraph policy \xe2\x80\x9cif\xe2\x80\x94and only if\xe2\x80\x94he\nreceives an inquiry about his position on the Ervin bill,\xe2\x80\x9d id., Macy appears to have\navoided discussing the Administration\xe2\x80\x99s position or testifying that the Administration had\nnot yet formulated a polygraph policy. He did, however, testify that \xe2\x80\x9c[a]t the present time\nthe polygraph is only used by the national intelligence and security agencies in connection\nwith employment. It is not used by any of the civilian agencies. It is not used in any\ninstances where an employee in the competitive civil service is selected.\xe2\x80\x9d Privacy Hearings, supra note 14, at 52. Significantly, the policy described in Macy\xe2\x80\x99s June 1968\n\n121\n\n\x0c33 Op. O.L.C. 114 (2009)\n\nPresident Johnson\xe2\x80\x99s apparent direction to Macy to testify that the Executive Branch \xe2\x80\x9chas not formulated any final position or Government-wide\npolicy\xe2\x80\x9d on polygraph examinations is difficult to reconcile with the possibility that the President understood the Executive Branch to be bound at\nthat time by the terms of the January 1967 Memorandum. Similarly,\nTemple\xe2\x80\x99s comment that the Committee\xe2\x80\x99s recommendations \xe2\x80\x9cmight be\nimplemented without legislation\xe2\x80\x9d appears to reflect the assumption that\nthose recommendations had yet to be issued. Indeed, even Macy himself,\nwho proposed telling Congress that the Executive Branch had adopted a\npolicy, evidently had in mind the version of the policy from the revised\ndocuments, rather than the earlier signed Memorandum; Macy\xe2\x80\x99s proposed\ntestimony acknowledged a \xe2\x80\x9climited exception\xe2\x80\x9d\xe2\x80\x94in the singular\xe2\x80\x94to the\ngeneral ban on polygraph use, for \xe2\x80\x9cpersonnel investigations and operations in the intelligence area,\xe2\x80\x9d making no reference to the exception for\ncriminal investigations included in the signed Memorandum. 21\nShortly after Macy\xe2\x80\x99s June 1968 testimony, the Civil Service Commission issued a policy for inclusion in the Federal Personnel Manual governing polygraph use in pre-employment screening of applicants and appointees to the federal competitive service. 22 The content of, and circumstances surrounding, this policy suggest that it may have been the vehicle\nby which the Johnson Administration implemented the interagency Committee\xe2\x80\x99s recommendations, consistent with Macy\xe2\x80\x99s April 1968 suggestion\ntestimony is inconsistent with the position set forth in the Johnson Memorandum, which\nwould have permitted broader polygraph use, including in criminal investigations.\n21 June 10 Macy Memorandum, supra note 18.\n22 See Federal Personnel Manual Letter No. 736-4, Full Field Investigations on Competitive Service Employees and Applicants for Critical-Sensitive Positions, attachment,\nUse of the Polygraph in Personnel Investigations of Competitive Service Applicants and\nAppointees to Competitive Service Positions (Oct. 25, 1968). The polygraph policy\nattached to Letter 736-4 was later incorporated into appendix D of chapter 736 of the\nFederal Personnel Manual. See Federal Personnel Manual ch. 736, app. D, Use of the\nPolygraph in Personnel Investigations of Competitive Service Applicants and Appointees\nto Competitive Service Positions (Mar. 3, 1969) (reprinted in Norman Ansley, Polygraph\nand the Law at 3-12 to 3-13 (1990)). See also The Use of Polygraphs and Similar Devices\nby Federal Agencies: Hearings Before a Subcomm. of the H. Comm. on Government\nOperations, 93d Cong. 408\xe2\x80\x9310 (1974) (statement of Anthony L. Mondello, General\nCounsel, Civil Service Commission) (reprinting polygraph policy as codified in chapter\n736, appendix D of Federal Personnel Manual). The Federal Personnel Manual was\nabolished in 1993. See Office of Personnel Management, FPM Sunset Document (1993).\n\n122\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nthat the Civil Service Commission issue a polygraph directive. 23 The\nCommission\xe2\x80\x99s polygraph policy issued in October of that year closely\ntracked the structure and language of the personnel investigation section\nfrom the Johnson Memorandum (which in turn was largely identical to the\nrelevant sections of the revised version from late January). The Commission\xe2\x80\x99s policy, for instance, permitted polygraph use in pre-employment\nscreening only by an agency with \xe2\x80\x9ca highly sensitive intelligence or\ncounterintelligence mission directly affecting the national security,\xe2\x80\x9d and\nonly when such an agency had received approval of its rules from the\nChairman of the Civil Service Commission. The policy further established\nprocedural and substantive protections that closely tracked the requirements set forth in the Johnson Memorandum (and Committee recommendations), including advance notice to the prospective employee of his\nprivilege against self-incrimination, advance notice of the effect of the\npolygraph examination (or a refusal to submit) on eligibility for employment, and an assurance that refusal to submit would not be made a part of\na personnel file. The Commission\xe2\x80\x99s policy did not, however, mention any\npresidential directive on the subject.\nSubsequent Executive Branch practice also suggests that the Civil Service regulations were issued in lieu of a formal presidential directive. In\n1974, the General Counsel of the Civil Service Commission testified in\ncongressional hearings on Executive Branch polygraph use that \xe2\x80\x9cas a\nresult of\xe2\x80\x9d the 1965 interagency study on polygraph use, \xe2\x80\x9cthe Commission\n[had] promulgated instructions governing the use of the polygraph for\nemployment screening . . . [involving] competitive service positions.\xe2\x80\x9d\nThe Use of Polygraphs and Similar Devices by Federal Agencies: Hearings Before a Subcomm. of the H. Comm. on Government Operations, 93d\nCong. 408 (1974) (statement of Anthony L. Mondello). Neither the Civil\nService Commission nor any other federal agency mentioned the Johnson\nMemorandum or any other presidential directive during the hearings. 24\nApr. 15 Macy Memorandum, supra note 16, at 2.\nA similar understanding appears to have been in place during the Reagan Administration. For example, a March 1982 interagency report recommended expanded use\nof polygraph examinations in leak investigations of federal employees, but made no\nmention of any government-wide polygraph policy. See Report of the Interdepartmental\nGroup on Unauthorized Disclosures of Classified Information (Mar. 31, 1982) (reprinted\nin Presidential Directive on the Use of Polygraphs and Prepublication Review: Hearings\nbefore the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary\n23\n24\n\n123\n\n\x0c33 Op. O.L.C. 114 (2009)\n\nIn 1984, the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d), successor to the\nCivil Service Commission, re-codified the October 1968 policy to take\naccount of President Reagan\xe2\x80\x99s March 1983 National Security Decision\n98th Cong. 166\xe2\x80\x9380 (1983) (\xe2\x80\x9cPresidential Directive Hearings\xe2\x80\x9d)). President Reagan\xe2\x80\x99s\nNational Security Decision Directive 84, which, in pertinent part, directed agencies with\naccess to classified information to revise their regulations and policies \xe2\x80\x9cso that employees\nmay be required to submit to polygraph examinations\xe2\x80\x9d in leak investigations, discussed\nseveral executive orders relevant to the control of classified information, but made no\nreference to the Johnson Memorandum or any government-wide policy. See Safeguarding\nNational Security Information, Nat\xe2\x80\x99l Sec. Decision Directive at 84, \xc2\xb6 5 (Mar. 11, 1983)\n(\xe2\x80\x9cNSDD-84\xe2\x80\x9d). Nor are we aware of any reference to the Johnson Memorandum in Congress\xe2\x80\x99s response to NSDD-84. See, e.g., H.R. 4681, 98th Cong. (1984) (proposed legislation that would have prohibited polygraph testing of federal employees except in cases of\nalleged criminal conduct) (reprinted in H.R. Rep. No. 98-961, pt. 1, at 1\xe2\x80\x934 (1984));\nPresidential Directive Hearings at 79 (statement of Arch S. Ramsey, Associate Director\nfor Compliance and Investigations, Office of Personnel Management, summarizing OPM\npolygraph policy without mention of Johnson Memorandum); H.R. Rep. No. 98-578, at\n5\xe2\x80\x937 (1983) (describing history of federal polygraph use, including interagency Committee\nand 1968 civil service regulations, with no mention of Johnson Memorandum); H.R. Rep.\nNo. 98-961, pt. 1, at 43\xe2\x80\x9345 (same).\nDepartment of Justice policies and statements from this time period appear consistent\nwith this understanding. In 1980, this Office concluded, without mention of the Johnson\nMemorandum, that the Attorney General had authority to compel employees to submit\nto polygraph examinations in the context of investigations of improper disclosures of\ninformation about pending criminal investigations. See Use of Polygraph Examinations\nin Investigating Disclosure of Information About Pending Criminal Investigations, 4B Op.\nO.L.C. 421, 429 (1980). In addition, a 1983 memorandum of this Office observed that\nboth the FBI and the Department as a whole had policies permitting compulsory polygraph testing of employees and the drawing of adverse inferences against employees who\nrefused testing. See Memorandum for A.R. Cinquegrana, Deputy Counsel for Intelligence\nPolicy, Office of Intelligence Policy and Review, from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel, Re: Implementation of Polygraph Policy in\nNational Security Decision Directive 84 at 7\xe2\x80\x938 (Aug. 22, 1983). The Department took a\nsimilar position in an October 1983 hearing. See Review of the President\xe2\x80\x99s National\nSecurity Decision Directive 84 and the Proposed Department of Defense Directive on\nPolygraph Use: Hearing Before Subcomm. on Legislation and Nat\xe2\x80\x99l Sec. of the H. Comm.\non Government Operations, 98th Cong. 163, 204\xe2\x80\x9305 (1983) (announcing comprehensive\nadministration policy allowing polygraph use \xe2\x80\x9cas a condition of initial or continuing\nemployment with or assignment to CIA and NSA\xe2\x80\x9d and similarly sensitive positions \xe2\x80\x9cas a\ncondition of access to highly sensitive categories of classified information,\xe2\x80\x9d \xe2\x80\x9cto investigate serious criminal cases,\xe2\x80\x9d and \xe2\x80\x9cto investigate serious administrative misconduct cases .\n. . including unauthorized disclosure of classified information\xe2\x80\x9d). These documents suggest\nthe Department at the time was either unaware of the Johnson Memorandum or understood it to lack legal effect.\n\n124\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nDirective 84. OPM stated at that time that \xe2\x80\x9c[w]ith the concurrence of\nPresident Lyndon B. Johnson, the following rules, incorporated in an\ninteragency committee report dated July 29, 1966 . . . remain in effect.\xe2\x80\x9d 25\nHad the Johnson Memorandum been in effect as a binding directive in\n1984, it is difficult to see why OPM would have cited an \xe2\x80\x9cinteragency\ncommittee report\xe2\x80\x9d rather than the presidential Memorandum, or would\nhave referred merely to the President\xe2\x80\x99s \xe2\x80\x9cconcurrence.\xe2\x80\x9d A 1996 proposed\nrulemaking by OPM superseding the polygraph provisions in the (by then\nwithdrawn) Federal Personnel Manual (\xe2\x80\x9cFPM\xe2\x80\x9d) reflected the same understanding. See Suitability, National Security Positions, and Personnel\nInvestigations, 61 Fed. Reg. 394, 396 (Jan. 5, 1996) (\xe2\x80\x9c[T]he former FPM\ncontained limitations upon using polygraphs in personnel investigations,\nbased upon a July 29, 1966, interagency committee report approved by\nformer President Lyndon B. Johnson.\xe2\x80\x9d). At various times, congressional\nentities have expressed a similar understanding. See, e.g., H.R. Rep. No.\n98-578, at 5\xe2\x80\x936 (1983) (summarizing federal polygraph policy beginning\nwith the work of the interagency Committee, noting issuance of the Civil\nService Commission regulations, but making no mention of a presidential\ndirective); see also Office of Technology Assessment, Scientific Validity\nof Polygraph Testing at 34 (1983) (\xe2\x80\x9cThe recommendations [of President\nJohnson\xe2\x80\x99s interagency Committee] made at that time concerning personnel screening were promulgated as Civil Service regulations on regulating\nthe use of polygraphs in personnel investigations of competitive service\napplicants and appointees to competitive service positions.\xe2\x80\x9d). Some scholarly accounts have also reached this conclusion. See, e.g., Priscilla M.\nRegan, Legislating Privacy 152 & nn.32\xe2\x80\x9333 (1995) (citing Civil Service\nregulations and Department of Defense polygraph policy as reflecting\n\xe2\x80\x9c[t]he general [polygraph] policy of the federal government\xe2\x80\x9d in the\n1970s).\nWe are aware of some more recent references to the Johnson Memorandum, such as a 1999 rulemaking by the Department of Energy expressing the belief that the agency\xe2\x80\x99s polygraph policy was \xe2\x80\x9cclearly permitted\xe2\x80\x9d\nunder the Johnson Memorandum. See Polygraph Examination Regulation,\nFederal Personnel Manual ch. 736, \xc2\xa7 2-6(a) (1984); see also Federal Personnel Manual ch. 732, \xc2\xa7 3-4, Use of the Polygraph in National Security Investigations (Aug. 15,\n1991) (later edition of Manual addressing use of polygraph examinations in national\nsecurity investigations and containing same statement).\n25\n\n125\n\n\x0c33 Op. O.L.C. 114 (2009)\n\n64 Fed. Reg. 70962, 70964 (Dec. 17, 1999). Similarly, in 1998 the Department of the Interior submitted a polygraph policy to the Attorney\nGeneral for her review and approval, in apparent reliance on the Johnson\nMemorandum. In recommending that the Attorney General approve the\nrequest, the Criminal Division apparently accepted (without discussion)\nthat the Johnson Memorandum had been \xe2\x80\x9cissued\xe2\x80\x9d by the President and\nthat it imposed binding \xe2\x80\x9crequirements\xe2\x80\x9d that were satisfied by the proposed\npolicy. See Memorandum for the Attorney General from James K. Robinson, Assistant Attorney General, Criminal Division, Re: Department of\nthe Interior Policy on the Use of the Polygraph in Criminal Investigations\nat 1 (Sept. 17, 1999); id. at 5 (approval of polygraph policy by Attorney\nGeneral Janet Reno); see also OIG Report at 6 & n.15 (describing September 17 memorandum). We believe, however, that the uncontroverted\ncontemporaneous evidence that the Johnson Memorandum did not have\nlegal effect (and similar evidence during the succeeding two decades)\noutweighs these more recent references.\nIn sum, the overwhelming weight of historical evidence of which we\nare aware supports the conclusion that the Johnson Memorandum was\nnever issued and did not take effect. Whatever the President\xe2\x80\x99s intent was\nin signing the document, contemporaneous White House records provide\nuncontroverted evidence that the Memorandum was deliberately held up\nfrom release or distribution within days of the President\xe2\x80\x99s signature; that\nin the months that followed, neither the President nor his senior White\nHouse advisers understood the Memorandum to have taken effect; that a\nyear and a half after the signature, the President was still actively deciding\nwhether or not to issue a memorandum addressing polygraph use to the\nExecutive Branch; and that the President directed the Chairman of the\nCivil Service Commission to testify to Congress that the Administration\n\xe2\x80\x9cha[d] not formulated any final position or Government-wide policy on\nthe use of the polygraph.\xe2\x80\x9d The evidence rather indicates that the Civil\nService Commission ultimately issued polygraph guidance applicable to\ncompetitive service hiring and appointments that closely mirrored the\nJohnson Memorandum and apparently served as an alternative to the\nissuance of a presidential directive, and that for three decades following\nthe President\xe2\x80\x99s signature, neither Congress nor senior Executive Branch\nofficials understood the Memorandum to be in effect.\nWe believe this historical record compels the conclusion that the Johnson Memorandum lacks any legal effect. This conclusion is informed by\n126\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\ntwo related legal principles. First, in light of the substantial historical\nevidence that the Johnson Memorandum was deliberately withheld after\nsignature, we draw support from the premise that a set of instructions\nfrom a superior to his subordinates typically will not take effect until it is\ncommunicated. Second, regardless of when or whether the Johnson Memorandum might have taken effect, we conclude that the document would\nnot currently bind the Executive Branch, given the well-established rule\nthat the President may revoke or amend instructions to his subordinates at\nwill, and the uncontroverted evidence that President Johnson gave directives to his subordinates sufficient to deny the Memorandum further\neffect.\nIt is a familiar principle of agency law that instructions from a principal\nto a subordinate ordinarily are not operative until they have been communicated. Hornbook law teaches that \xe2\x80\x9c[a]n agent has a duty to comply with\nall lawful instructions received from [a] principal . . . concerning the\nagent\xe2\x80\x99s actions on behalf of the principal.\xe2\x80\x9d Restatement (Third) of Agency\n\xc2\xa7 8.09(2) (2006); see also Harold Gill Reuschlein & William A. Gregory,\nThe Law of Agency and Partnership \xc2\xa7 69 (2d ed. 1990) (\xe2\x80\x9cThe agent is\nunder a duty to follow instructions given by his principal.\xe2\x80\x9d). As the Restatement formulation indicates, such a duty is typically predicated on the\nagent\xe2\x80\x99s \xe2\x80\x9crecei[pt]\xe2\x80\x9d of such instructions. Restatement (Third) of Agency\n\xc2\xa7 8.09(2); see also Restatement (Second) of Agency \xc2\xa7 33 cmt. a (1958)\n(\xe2\x80\x9cThe implicit, basic understanding of the parties to the agency relation is\nthat the agent is to act only in accordance with the principal\xe2\x80\x99s desires as\nmanifested to him.\xe2\x80\x9d) (emphasis added). According to the second Restatement, \xe2\x80\x9c[a]n agent is subject to liability to his principal if he acts contrary\nto orders contained in a notification given by the principal,\xe2\x80\x9d and a letter\ncontaining such a notification would \xe2\x80\x9cnormally [be] effective as notice\nwhen it is received at the agent\xe2\x80\x99s place of business.\xe2\x80\x9d Id. \xc2\xa7 385 cmt. e\n(emphasis added). A similar premise is reflected in the rule that an agent\nwill not be liable \xe2\x80\x9cfor a departure from the will of the principal where the\nprincipal\xe2\x80\x99s orders are ambiguous, doubtful, or not explicit\xe2\x80\x9d and where the\nagent has reasonably interpreted those orders. See 3 Am. Jur. 2d Agency\n\xc2\xa7 214 (2002); see also 1 Floyd R. Mechem, A Treatise on the Law of\nAgency \xc2\xa7 1266 (2d ed. 1914) (\xe2\x80\x9cIf the principal desires his instructions to\nbe pursued, it is obviously necessary that he should make them intelligible\nand clear.\xe2\x80\x9d).\n127\n\n\x0c33 Op. O.L.C. 114 (2009)\n\nWhile the law of agency may not be directly applicable to the President\xe2\x80\x99s supervision and communication with subordinates, the requirement\nof a manifestation from the principal reflects the pragmatic reality that\ncommunication of an instruction is ordinarily a necessary antecedent to a\nsubordinate\xe2\x80\x99s implementation of those instructions. The advice of this\nOffice has occasionally reflected this concern. See, e.g., Memorandum for\nthe Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Executive Privilege at 2 (Apr. 6, 1982)\n(noting that \xe2\x80\x9csome communication to [agency heads] by the President [on\nthe subject of executive privilege] is necessary to ensure that they will\nknow what to do when faced with Congressional demands for information\xe2\x80\x9d). 26 If nothing else, the Johnson Administration\xe2\x80\x99s failure to distribute the Memorandum underscores the likelihood that the President did\nnot intend it to go into effect. 27\nEven assuming, however, that the Johnson Memorandum took effect in\nJanuary 1967, the historical record compels the conclusion that President\nJohnson took actions and gave directives sufficient to constitute a revocation of the original document. It is well established that \xe2\x80\x9c[t]he President\nhas the constitutional authority to supervise and control the activity of\nsubordinate officials within the executive branch.\xe2\x80\x9d The Legal Significance\n26 This discussion should not be read as casting doubt on the President\xe2\x80\x99s discretion,\nabsent circumstances not present here, to issue instructions or directives to his subordinates in the Executive Branch in the manner and form of his choosing. Cf. Limitations on\nPresidential Power to Create a New Executive Branch Entity to Receive and Administer\nFunds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 76\xe2\x80\x9377 (1985) (concluding that\nwhere statute appropriated funds in general terms to \xe2\x80\x9csuch department or agency of the\nUnited States as the President shall designate,\xe2\x80\x9d the \xe2\x80\x9cdesignation could be accomplished in\nseveral ways, from a formal executive order to an oral directive from the President\xe2\x80\x9d).\n27 Although not controlling of the question before us, an analogous principle has been\nrecognized in the context of the President\xe2\x80\x99s exercise of the appointment power. With\nrespect to an office from which an appointee is removable at will, courts and the Executive Branch have recognized the President\xe2\x80\x99s authority to deny legal effect to a signed\ncommission by withholding its delivery to the appointee. See Marbury v. Madison, 5 U.S.\n(1 Cranch) 137, 162 (1803) (stating in dictum that where \xe2\x80\x9can officer is removable at the\nwill of the executive . . . the act [of appointment] is at any time revocable[,] and the\ncommission may be arrested [by the President], if still in the office\xe2\x80\x9d); accord Case of\nFranklin G. Adams, 12 Op. Att\xe2\x80\x99y Gen. 304, 306 (1867) (\xe2\x80\x9cThe effect [of the President\xe2\x80\x99s\nwithholding a commission after signature] is a revocation of the appointment; not a\nremoval, but the exercise of the right of the President to stop it before the office vests in\nthe appointee.\xe2\x80\x9d).\n\n128\n\n\x0cStatus of Presidential Memorandum on Use of the Polygraph\n\nof Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993); cf.\nMyers v. United States, 272 U.S. 52, 135 (1926) (the President \xe2\x80\x9cmay\nproperly supervise and guide [Executive Branch officers\xe2\x80\x99] construction of\nthe statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently\ncontemplated in vesting general executive power in the President alone\xe2\x80\x9d).\nAs a corollary to the President\xe2\x80\x99s general supervisory power, we have also\nconcluded that the President is generally free to amend or revoke instructions to his subordinates in a form and manner of his choosing. In Proposals Regarding an Independent Attorney General, 1 Op. O.L.C. 75\n(1977), for instance, Attorney General Griffin Bell observed that the\nPresident \xe2\x80\x9clegally could revoke or supersede [an] Executive order at will.\xe2\x80\x9d\nId. at 77; accord Memorandum for the Attorney General from Charles J.\nCooper, Assistant Attorney General, Office of Legal Counsel, Re: Legal\nAuthority for Recent Covert Arms Transfers to Iran at 14 (Dec. 17, 1986)\n(\xe2\x80\x9cCooper Memorandum\xe2\x80\x9d) (\xe2\x80\x9call executive orders [are] a set of instructions\nfrom the President to his subordinates in the executive branch\xe2\x80\x9d). The same\nunderstanding would hold for other presidential instructions, such as\nmemoranda and directives. See generally Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order, 24 Op. O.L.C. 29,\n29 (2000) (noting that there is \xe2\x80\x9cno basis for drawing a distinction as to the\nlegal effectiveness of a presidential action based on the form or caption of\nthe written document through which that action is conveyed\xe2\x80\x9d).\nApplying the Cooper Memorandum\xe2\x80\x99s reasoning to the historical circumstances of the Johnson Memorandum provides support for the view\nthat, whatever President Johnson\xe2\x80\x99s intent may have been in signing the\nMemorandum, he gave clear expression to his subsequent understanding\nthat the Memorandum did not have legal effect. Most tellingly, eighteen\nmonths after having signed the original polygraph memorandum, President Johnson directed the head of the Civil Service Commission to testify\nbefore Congress that the Administration \xe2\x80\x9chas not formulated any final\nposition or Government-wide policy on the use of the polygraph.\xe2\x80\x9d 28 If the\n\nSee supra note 20 and accompanying text. NSDD-84 also appears to condone polygraph testing for investigations of unauthorized disclosures of classified information by\ndirecting the revision of regulations so that employees might be required to submit to\npolygraphs in the course of investigations of unauthorized disclosures of classified\n28\n\n129\n\n\x0c33 Op. O.L.C. 114 (2009)\n\nMemorandum had actually been released to agency heads, a correspondingly public presidential revocation would be expected; but given the\nMemorandum\xe2\x80\x99s limited circulation among a small group of advisers, the\nunqualified and sweeping nature of the President\xe2\x80\x99s directive that a senior\nAdministration official disclaim publicly \xe2\x80\x9cany final position or Government-wide policy\xe2\x80\x9d on polygraph use would have constituted a \xe2\x80\x9cvalid\nmodification of, or exception to\xe2\x80\x9d the recently signed Memorandum, see\nCooper Memorandum at 14, sufficient to deny that document continuing\nlegal effect. 29\nII.\nIn sum, we conclude that the Johnson Memorandum does not now bind\nthe Department of Justice or other entities in the Executive Branch, in\nlight of compelling historical evidence that the document was never\nissued by the President and that President Johnson took actions subsequent to signature that under the circumstances here would have constituted a revocation of any such directive.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\ninformation, and by specifying that adverse action could be taken for failure to cooperate\nwith the examination. Id. at 2\xe2\x80\x933.\n29 We need not address any limitations that might apply to revocation or amendment of\na presidential directive that arguably creates enforceable private rights. We doubt very\nmuch that the Johnson Memorandum would have created judicially enforceable rights\neven if it had been issued, cf., e.g., Facchiano Constr. Co. v. Dep\xe2\x80\x99t of Labor, 987 F.2d\n206, 210 (3d Cir. 1993) (\xe2\x80\x9cGenerally, there is no private right of action to enforce obligations imposed on executive branch officials by executive orders.\xe2\x80\x9d); here, however, the\nuncontroverted historical evidence demonstrates that the signed Memorandum was never\nissued and that the President timely confirmed that the Memorandum was not in effect.\nIn such circumstances, there is no basis to suggest that the Memorandum created any\ncognizable private right.\n\n130\n\n\x0c'


b'Proposed Deployment of United States Armed Forces into\nBosnia\nThe President, acting without specific statutory authorization, may lawfully introduce United States\nground troops into Bosnia in order to assist the North Atlantic Treaty Organization to ensure\ncompliance with a peace agreem ent\n\nNovember 30, 1995\nM e m o r a n d u m O p in io n\n\nfor th e\n\nCounsel\n\nto t h e\n\nP r e s id e n t\n\nThis is to provide you with our analysis of whether the President, acting without\nspecific statutory authorization, lawfully may introduce United States ground\ntroops into Bosnia and Herzegovina (\xe2\x80\x9c Bosnia\xe2\x80\x9d ) to help the North Atlantic Treaty\nOrganization (\xe2\x80\x9c NATO\xe2\x80\x9d ) ensure compliance with the recently negotiated peace\nagreement. We believe that the President may act unilaterally in the circumstances\nhere.\n\nI. Background\n\nThe United States has a large stake in helping to secure the Bosnian peace\nagreement. The United States has a firm commitment to the principle that the\nsecurity and stability of Europe are of fundamental interest to the United States.\nAs the President stated, if the negotiations fail and the war resumes, there is a\nvery real risk that it could spread beyond Bosnia, and involve Europe\xe2\x80\x99s new\ndemocracies as well as our NATO allies.\nAlthough the involvement of the United Nations in the Bosnian conflict can\nbe traced back to at least 1991, the United Nations first deployed the United\nNations Protection Force (\xe2\x80\x9c UNPROFOR\xe2\x80\x9d ) in the former Yugoslavia in April\n1992. Most of the troops in UNPROFOR have been provided by nations allied\nwith the United States under the NATO Treaty. In addition to operations involving\nground forces, the Security Council, in Resolutions 781 and 786 (October 9 and\nNovember 10, 1992), established a ban on unauthorized military flights over\nBosnia. In Security Council Resolution 816 (March 31, 1993), the Security\nCouncil authorized Member States and regional organizations to take \xe2\x80\x9c all nec\xc2\xad\nessary measures\xe2\x80\x9d to ensure compliance with the no-fly zone. The NATO allies\nagreed to undertake that enforcement. In Security Council Resolutions 836 and\n844 (June 4 and 18, 1993), the Security Council authorized Member States and\nregional organizations (including NATO) to help protect UNPROFOR. In response\nto attacks on Sarajevo, NATO also agreed, on February 9, 1994, to accept the\nSecretary General\xe2\x80\x99s request to begin air operations, in coordination with\n\n327\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nUNPROFOR, against military positions determined to be involved in attacks on\ncivilian targets in Sarajevo.\nWorking with its NATO allies, the United States has played an important role\nin the United Nations\xe2\x80\x99 dispute-settlement efforts and in UNPROFOR\xe2\x80\x99s Bosnian\noperations. It contributed combat-equipped fighter aircraft and other resources to\nNATO\xe2\x80\x99s enforcement of the Security Council\xe2\x80\x99s no-fly ban. It also provided mili\xc2\xad\ntary assets to implement NATO\xe2\x80\x99s February 9, 1994, decision to attack military\ntargets near Sarajevo. On occasion, United States military forces, under the aus\xc2\xad\npices of NATO, have engaged in combat in support of UNPROFOR. On February\n28, 1994, United States aircraft on air patrol for NATO engaged Serb aircraft\nviolating the no-fly ban, destroyed three of them, and downed a fourth. On April\n10-11, 1994, United States combat-equipped aircraft engaged Bosnian-Serb air\xc2\xad\ncraft and gunners in defense of UNPROFOR personnel who had come under\nattack in Gorazde. On November 21, 1994, NATO conducted airstrikes involving\nthirty-nine United States and allied aircraft in response to Serb air attacks that\nhad threatened 1,200 UNPROFOR troops in Bihac. The President reported each\nof these incidents by formal letters to Congress.\nIn a radio address of February 19, 1994, the President outlined the support the\nUnited States had given as of that time to the United Nations\xe2\x80\x99 effort in the former\nYugoslavia:\nWe have participated in the enforcement of economic sanctions\nagainst Serbia. We initiated airdrops o f food and medicine and\nparticipated in the Sarajevo airlift, a massive effort, running longer\nthan the Berlin airlift, which has relieved starvation and suffering\nfor tens of thousands of Bosnians. Together with our NATO allies,\nwe began enforcement o f a no-fly zone to stop the parties from\nspreading the war with aircraft.\nWe have warned Serbia against increasing its repression of the\nAlbanian ethnic minority in Kosovo. We have contributed 300\nAmerican troops to the United Nations force that is helping to\nensure that the war does not spread to the former Yugoslav\nRepublic of Macedonia, which lies between Bosnia and Greece.\nAnd we have worked with our allies to ensure that NATO is pre\xc2\xad\npared to help solve this crisis.\n1 Pub. Papers of William J. Clinton 284 (1994).\nMore recently, after the Bosnian Serbs assaulted Srebenica and Zepa, which\nthe United Nations had designated as safe areas, the United States organized an\nagreement with our NATO allies to take decisive military measures against any\nfurther attacks on safe areas. When the Bosnian Serbs later shelled a marketplace\nin Sarajevo, American pilots took part in a NATO bombing campaign designed\nto prevent the repetition of such offenses and ensure the withdrawal of heavy\n\n328\n\n\x0cProposed Deployment o f United States A rm ed Forces into Bosnia\n\nweapons from around Sarajevo. Throughout this period, the President has\ninformed Congress of the United States\xe2\x80\x99 involvement in supporting the\nUNPROFOR, including the episodes of combat that have occurred.1\nIn the past few months, the United States initiated an intensive diplomatic effort\nthat produced a peace agreement among the warring parties in Bosnia. The United\nStates had earlier assisted those parties in reaching a cease-fire. The peace agree\xc2\xad\nment itself came out of negotiations that took place on American soil, under the\nguidance of the Department of State. The United Nations Security Council has\nindicated its support of the agreement. The parties to the agreement have made\nclear that their confidence in the strength of the accord depends on the presence\nof an international military force that would maintain the cease-fire and the separa\xc2\xad\ntion of forces. It is anticipated that the United States would contribute 20,000\nground troops to the force and that our NATO allies, as well as such non-NATO\ncountries as Russia, would provide twice that number.2\nThe President has determined that, without this substantial contingent of United\nStates troops, the NATO force is unlikely to be able to prevent renewed fighting\nin Bosnia. The President bases this conclusion on (among other things) the rep\xc2\xad\nresentations of the parties and in particular of the Bosnians. A failure to carry\nout the terms of the peace accord, in the President\xe2\x80\x99s judgment, would injure Amer\xc2\xad\nica\xe2\x80\x99s national interests, as well as once again consigning the Bosnians to violence\nand atrocities of a sort not seen in Europe since the end of the Second World\nWar. See, e.g.. Letter for Honorable Newt Gingrich, Speaker of the House of\nRepresentatives, from President William J. Clinton (Nov. 13, 1995) (\xe2\x80\x9c November\n13 Letter\xe2\x80\x9d ). The precise level of risk to United States troops is, of course, impos\xc2\xad\nsible to specify. As the President has stated, \xe2\x80\x9c America\xe2\x80\x99s role will not be about\nfighting a war. It will be about helping the people of Bosnia to secure their own\npeace agreement.\xe2\x80\x9d The risk o f casualties cannot be dismissed; \xe2\x80\x9c [t]here may be\naccidents in the field or incidents with people who have not given up their\nhatred.\xe2\x80\x9d 2 Pub. Papers of William J. Clinton 1784, 1786 (1995). However,\nbecause of the size of the Implementation Force (\xe2\x80\x9c IFOR\xe2\x80\x9d ) and its rules of engage\xc2\xad\nment, as well as the high quality of United States and NATO troops, training,\nand equipment, we would have created conditions that would offer the minimum\npossible risks to our soldiers.\n1Congress has from time to time enacted legislation (or expressed its sense) on the United States\' policy and\nrole in the Bosnian conflict. See, e.g.. Department o f Defense Appropriations A ct, FY 1995, Pub. L No. 103\xe2\x80\x94\n335, \xc2\xa78100, 108 Stat. 2599, 2643 (1994) (sense o f Congress that none o f funds appropriated under Act be available\nto deploy United States Armed Forces to participate in Bosnian peace settlement); National Defense Authorization\nAct, FY 1995, Pub. L. No. 103-337, \xc2\xa7 1404, 108 Stat. 2663, 2910 (1994) (sense o f Congress that President terminate\narms embargo against Bosnia if certain conditions obtain); Foreign Operations, Export Financing, and Related Pro\xc2\xad\ngrams Appropriations Act, FY 1995, Pub. L. No. 103-306, \xc2\xa7546, 108 Stat. 1608, 1641 (1994) (same); Foreign\nRelations Authorization Act, FY 1994 & 1995, Pub. L. No. 103-236, \xc2\xa7520(c), 108 Stat. 382, 472 (1994) (President\nshould provide military assistance to Bosnia if that nation requests it under Article 51 of United Nations Charter).\n2 Additional United States forces would also be deployed to areas outside Bosnia to support the ground troops\ninside the country.\n\n329\n\n\x0cO pinions o f the O ffice o f Legal Counsel in Volume 19\n\nII. Legal Analysis\nIn 1980, we noted that\n[t]he power to deploy troops abroad without the initiation of hos\xc2\xad\ntilities is the most clearly established exercise of the President\xe2\x80\x99s\ngeneral power as a matter o f historical practice. Examples of such\nactions in the past include the use of the Navy to \xe2\x80\x9c open up\xe2\x80\x9d Japan,\nand President Johnson\xe2\x80\x99s introduction of the armed forces into the\nDominican Republic in 1965 to forestall revolution.\nPresidential Power to Use the Armed Forces Abroad Without Statutory Authoriza\xc2\xad\ntion, 4A Op. O.L.C. 185, 187 (1980). Today, American soldiers are deployed at\nmany places around the world. Although these forces are not presently engaged\nin ongoing hostilities, in some instances they deal with conditions of appreciable\ndanger. Indeed, continuously for the last forty years, American forces have been\ndeployed under such conditions. The United States, for example, has maintained\nlarge military forces in Europe. At times, these troops have faced a genuine risk\nof war, as during the Berlin Airlift. More recently, they have been subjected to\nattacks by terrorists. On the other side of the globe, American forces are deployed\n(for example) in South Korea, and even after the end of the Korean War, North\nKorean forces have sometimes assaulted American soldiers.\nThe proposed deployment to Bosnia, therefore, is no innovation. As Commander\nin Chief, the President exercises \xe2\x80\x9c the power to dispose of troops and equipment\nin such manner and on such duties as best to promote the safety of the country.\xe2\x80\x9d\nTraining o f British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58,\n62 (1941) (Robert H. Jackson, A tt\xe2\x80\x99y Gen.). Nevertheless, some have questioned\nthe President\xe2\x80\x99s authority to order the deployment. We first explain why the Presi\xc2\xad\ndent has authority under the Constitution to order the deployment. We then review\nthe War Powers Resolution and suggest that it should be read as reflecting\nCongress\xe2\x80\x99s understanding that the President, even absent specific statutory\nauthorization, may deploy military forces abroad and may, in some circumstances,\norder them into situations in which conflict may arise.\n\nA. The Declaration o f War Clause\nThe Constitution vests in Congress the power \xe2\x80\x9c [t]o declare War.\xe2\x80\x9d U.S. Const,\nart. I, \xc2\xa7 8 , cl. I I . 3 The scope and limits of that power are not well defined by\n3 The D eclaration o f W ar Clause is not the only constitutional text relevant to either Congress\'s or the President\'s\nwar powers. As Justice Robert Jackson pointed out, "o u t o f seventeen specific paragraphs o f congressional power\n[in article I, \xc2\xa7 8 ], eight o f them are devoted in whole or in part to specification of powers connected with w arfare.\xe2\x80\x9d\nJohnson v. Eisentrager, 339 U.S. 763, 788 (1950). The President also has inherent war powers as C hief Executive.\nU.S. Const, art. n , \xc2\xa7 1, cl. 1, as Commander in Chief, id. \xc2\xa7 2 , cl. 1, and under other clauses.\n\n330\n\n\x0cProposed Deployment o f United States Armed Forces into Bosnia\n\nconstitutional text, case law, or statute. Rather, the relationship o f Congress\xe2\x80\x99s\npower to declare war and the President\xe2\x80\x99s authority as Commander in Chief and\nChief Executive has been clarified by 200 years of practice. See Harold H. Koh,\nThe National Security Constitution 70-71 (1990) (historical precedent serves as\n\xe2\x80\x9c quasi-constitutional custom\xe2\x80\x9d in foreign affairs). In ruling on constitutional ques\xc2\xad\ntions involving foreign relations, the Supreme Court has often shown itself willing\nto rely on the evolved practice and custom of the political branches. See, e.g.,\nDames & Moore v. Regan, 453 U.S. 654, 686 (1981); Haig v. Agee, 453 U.S.\n280, 292-93(1981).\nHistorical practice supplies numerous cases in which Presidents, acting on the\nclaim of inherent power, have introduced armed forces into situations in which\nthey encountered, or risked encountering, hostilities, but which were not \xe2\x80\x9c wars\xe2\x80\x9d\nin either the common meaning or the constitutional sense. As the Supreme Court\nobserved in 1990, \xe2\x80\x9c [t]he United States frequently employs Armed Forces outside\nthis country\xe2\x80\x94 over 200 times in our history\xe2\x80\x94 for the protection of American\ncitizens or national security.\xe2\x80\x9d United States v. Verdugo-Urquidez, 494 U.S. 259,\n273 (1990). In at least 125 instances, the President acted without express\nauthorization from Congress. See Leonard C. Meeker, Legal Adviser, Dept, of\nState, The Legality o f United States Participation in the Defense o f Viet-nam, 54\nDep\xe2\x80\x99t St. Bull. 474, 484-85 (1966); see also Authority o f the President to Repel\nthe Attack in Korea, 23 Dep\xe2\x80\x99t St. Bull. 173 (1950).4 In reliance on this historical\npractice and understanding, our Office recently took the position that the President\nhad the inherent authority to deploy up to 20,000 troops into Haiti on the invitation\nof that country\xe2\x80\x99s legitimate government. We argued that \xe2\x80\x9c [i]n deciding whether\nprior Congressional authorization for the Haitian deployment was constitutionally\nnecessary, the President was entitled to take into account the anticipated nature,\nscope, and duration of the planned deployment, and in particular the limited ante\xc2\xad\ncedent risk that United States forces would encounter significant armed resistance\nor suffer or inflict substantial casualties as a result of the deployment.\xe2\x80\x9d D eploy\xc2\xad\nment o f United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 179 (1994)\n(\xe2\x80\x9c OLC Haiti Letter\xe2\x80\x9d ) .5\n4 This understanding o f Executive power has early antecedents. \xe2\x80\x9d [B]oth Secretary (of War] Knox and [President]\nWashington himself seemed to think this [Commander in Chief] authority extended to offensive operations undertaken\nin retaliation for Indian atrocities.\xe2\x80\x9d David P. Currie, The Constitution in Congress: Substantive Issues in the First\nCongress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994). On the other hand, Washington also wrote in 1793\nthat \xe2\x80\x9c no offensive expedition o f importance can be undertaken [against the Creek Indians] until after [Congress]\nshall have deliberated upon the subject, and authorized such a m easure.\xe2\x80\x9d 33 The Writings o f George Washington\n73 (John C. Fitzpatrick ed., 1940).\n5 In fact, past Administrations have made, and acted upon, far broader claims of unilateral Executive authority\nto order troops into hostile situations than underlay the deployment in Haiti, either as it actually occurred or as\nit was planned before the military leadership agreed to leave peacefully. For example, President Bush ordered United\nStates troops into Panama in December, 1989, for the purpose (among others) of overthrowing the regime o f General\nManuel Noriega. President Bush consulted with congressional leaders, but did not seek or receive C ongress\xe2\x80\x99s\nauthorization. See 2 Pub. Papers o f George Bush 1722-23 (1990). The boldest claim of Executive authority to wage\nwar without congressional authorization was made at the time o f the Korean W ar\xe2\x80\x94 a conflict that ultimately lasted\nfor three years and caused over 142,000 American casualties. Such sweeping claims of inherent Executive authority\nContinued\n\n331\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIn deciding whether the proposed deployment of ground troops into Bosnia\nwould amount to a \xe2\x80\x9c war\xe2\x80\x9d in the constitutional sense, considerable weight should\nbe given to the consensual nature and protective purposes of the operation. The\ndeployment is intended to be a limited mission that will ensure stability while\nthe peace agreement is put into effect. Because the mission is in support of an\nagreement that the warring parties have reached and is at the invitation of those\nparties, it is reasonably possible that little or no resistance to the deployment will\noccur. The operation does not aim at the conquest or occupation of territory nor\neven, as did the planned Haitian intervention, at imposing through military means\na change in the character of a political regime. Although combat conceivably may\noccur during the course of the operation, it is not likely that the United States\nwill find itself involved in extensive or sustained hostilities. Moreover, as the\nPresident has made clear, the Allies agree that if there were a total breakdown\nin compliance, IFOR would be withdrawn.\nWe believe that the President has ample authority to undertake the planned oper\xc2\xad\nation. As noted above, the President as Commander in Chief has \xe2\x80\x9c the power to\ndispose o f troops and equipment in such manner and on such duties as best to\npromote the safety of the country.\xe2\x80\x9d 40 Op. Att\xe2\x80\x99y Gen. at 62; cf. Maul v. United\nStates, 274 U.S. 501, 515-16 (1927) (Brandeis and Holmes, JJ., concurring)\n(President \xe2\x80\x9c may direct any revenue cutter to cruise in any waters in order to\nperform any duty o f the service\xe2\x80\x9d ). His \xe2\x80\x9c authority has long been recognized as\nextending to the dispatch of armed forces outside of the United States . . . for\nthe purpose o f protecting American lives or property or American interests.\xe2\x80\x9d 40\nOp. Att\xe2\x80\x99y Gen. at 62 (emphasis added).\nThe American interests at stake here are clear. The United States has worked\nclosely and intimately with its NATO partners for several years in attempting\nto carry out United Nations peacekeeping efforts in Bosnia and other parts of\nthe former Yugoslavia.6 United States military activities in the air and at sea\nhave complemented the UNPROFOR\xe2\x80\x99s peacekeeping efforts on the ground.\nIndeed, the United States has already engaged in combat on several occasions\nin UNPROFOR\xe2\x80\x99s defense. The proposed deployment of a NATO force to imple\xc2\xad\nment the peace agreement would be consistent with the pattern of inter-allied\ncooperation and assistance that has been established over recent years. It would\nserve significant national security interests, by preserving peace in the region and\nhave been sharply criticized. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 140\nCong. Rec. 19,811-16 (1994); cf. Holtzman v. Schlesinger, 414 U.S. 1304, 1311-12 (1973) (Marshall, J., sitting\nas C ircuit Justice); but see Robert F. Turner, War and the Forgotten Executive Power Clause o f the Constitution:\nA Review Essay o f John Hart Ely\'s War and Responsibility, 34 Va. J. Int\xe2\x80\x99l L. 903, 949-59 (1994). It is unnecessary\nto consider such broad assertions in the present case.\n6 It should also be noted that Congress has expressed its sense that \xe2\x80\x9c old threats to the security of the United\nStates and its allies in the North Atlantic Treaty Organization having greatly diminished, and new, more diverse\nchallenges having arisen ( including ethno-religious conflict in Central and Eastern Europe . . .), NA TO \'s mission\nmust be redefined so that it may respond to such challenges to its m em bers\xe2\x80\x99 security even when those challenges\nemanate from beyond the geographic boundaries o f its m em bers\xe2\x80\x99 territories.\xe2\x80\x9d National Defense Authorization Act.\nFY 1994, Pub. L. No. 103-160, \xc2\xa7 1411(b), 107 Stat. 1547, 1827 (1993) (emphasis added).\n\n332\n\n\x0cProposed Deployment o f United States Armed Forces into Bosnia\n\nforestalling the threat of a wider conflict. As the President stated in his November\n13 Letter, \xe2\x80\x9c [t]his Administration, and that of previous Democratic and Republican\nPresidents, have been firmly committed to the principle that the security and sta\xc2\xad\nbility of Europe is of fundamental interest to the United States.\xe2\x80\x9d November 13\nLetter at 1. If the war in the former Yugoslavia resumes, \xe2\x80\x9c there is a very real\nrisk that it could spread beyond Bosnia, and involve Europe\xe2\x80\x99s new democracies\nas well as our NATO allies.\xe2\x80\x9d Id. Furthermore, as we explained in concluding\nthat President Bush had authority to deploy United States forces in Somalia,\n\xe2\x80\x9c maintaining the credibility of United Nations Security Council decisions, pro\xc2\xad\ntecting the security of United Nations and related relief efforts, and ensuring the\neffectiveness of United Nations peacekeeping operations can be considered a vital\nnational interest.\xe2\x80\x9d Authority to Use United States Military Forces in Somalia,\n16 Op. O.L.C. 6, 11 (1992). This argument applies equally to a NATO operation\nthat carries out a peace agreement supported by the United Nations. Indeed, there\nis here the additional consideration that \xe2\x80\x9c [f]or almost 50 years, the [NATO] Alli\xc2\xad\nance has been the anchor of America\xe2\x80\x99s and Europe\xe2\x80\x99s common security,\xe2\x80\x9d and \xe2\x80\x9c [i]f\nwe do not do our part in a NATO mission, we would weaken the Alliance and\njeopardize American leadership in Europe.\xe2\x80\x9d November 13 Letter at 2. Accord\xc2\xad\ningly, in these circumstances, the President would have legal authority to order\nthe deployment, in order to further important national interests.\nSeveral circumstances of the proposed deployment have led some to take a dif\xc2\xad\nferent view of this question. Unlike the Haitian intervention, this operation\narguably is not a case where \xe2\x80\x9c the risk of sustained military conflict [is] neg\xc2\xad\nligible.\xe2\x80\x9d OLC Haiti Letter, 18 Op. O.L.C. at 173, 176. With the exception of\nthe limited commitment of ground troops to Macedonia, the United States\xe2\x80\x99 pre\xc2\xad\nvious military involvement in the Yugoslav theater has been undertaken only by\nits naval or aerial forces. The deployment of 20,000 troops on the ground is an\nessentially different, and more problematic, type of intervention: it raises the risk\nthat the United States will incur (and inflict) casualties. Disengagement of ground\nforces can be far more difficult than the withdrawal of forces deployed for air\nstrikes or naval interdictions. Because of the difficulties of disengaging ground\nforces from situations of conflict, and the attendant risk that hostilities will esca\xc2\xad\nlate, arguably there is a greater need for approval at the outset for the commitment\nof such troops to such situations; otherwise, Congress may be confronted with\ncircumstances in which the exercise of its power to declare war is effectively\nforeclosed.\nNevertheless, we do not believe that these arguments against the President\xe2\x80\x99s\nunilateral authority to deploy forces into Bosnia are persuasive. The deployment\nwould be in aid of a peace agreement that will be guaranteed by NATO and\nthe United Nations Security Council. The parties to the agreement already are\nin substantial, though perhaps not total, compliance with an earlier cease-fire\nagreement, and have invited the deployment of NATO forces and guaranteed their\n333\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsafety. To send United States forces to the region, in these circumstances, does\nnot constitute \xe2\x80\x9c war\xe2\x80\x9d in any sense of the word.7 Historical practice reinforces\nthe most natural reading of the constitutional language: at the least, the President\nmay deploy United States forces here without express authorization to protect the\nnational interests, even if the deployment is not without some risk.\nB. The War Powers Resolution\nThe War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (\xe2\x80\x9c the\nWPR\xe2\x80\x9d or \xe2\x80\x9c the Resolution\xe2\x80\x9d ), codified at 50 U.S.C. \xc2\xa7\xc2\xa71541-1548, is intended\n\xe2\x80\x9c to fulfill the intent o f the framers of the Constitution of the United States and\ninsure that the collective judgment of both the Congress and the President will\napply to the introduction of United States Armed Forces into hostilities, or into\nsituations where imminent involvement in hostilities is clearly indicated by the\ncircumstances, and to the continued use of such forces in hostilities or in such\nsituations.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1541(a). To carry out that goal, the Resolution provides\nthat the President is to report to Congress when United States forces are introduced\n(1) \xe2\x80\x9c into hostilities or into situations where imminent involvement in hostilities\nis clearly indicated by the circumstances,\xe2\x80\x9d (2) \xe2\x80\x9c into the territory, airspace or\nwaters o f a foreign nation, while equipped for combat\xe2\x80\x99 \xe2\x80\x99 (except for certain speci\xc2\xad\nfied operations), or (3) \xe2\x80\x9c in numbers which substantially enlarge United States\nArmed Forces equipped for combat already located in a foreign nation.\xe2\x80\x9d Id.\n\xc2\xa7 1543. After a report about the introduction of forces into imminent or actual\nhostilities, the Resolution would require the President to withdraw those forces\nwithin sixty days (or ninety days if military necessity requires), unless Congress\nhas authorized continued operations.\nThe Resolution necessarily presupposes the President\xe2\x80\x99s authority, even in the\nabsence of express authorization by Congress, to deploy troops in circumstances\nsuch as those here. Where (as here) the President would be ordering United States\nforces into foreign territory while equipped for combat, the Resolution requires\na report to Congress. The Resolution thus assumes that the President sometimes\nmay order such deployments without prior statutory authorization. Indeed,\nalthough section 8(d)(2) of the Resolution provides that the Resolution shall not\nbe construed \xe2\x80\x9c as granting any authority to the President with respect to the\nintroduction of United States Armed Forces into hostilities or into situations\nw herein involvement in hostilities is clearly indicated by the circumstances,\xe2\x80\x9d 50\nU.S.C. \xc2\xa7 1547(d)(2), there is no similar reservation against construing the Resolu\xc2\xad\ntion to authorize deployments o f troops equipped for combat in other situations.\nAt uie least, even if the Resolution does not add to the President\xe2\x80\x99s authority,\n7 Wo do not suggest that any deployment o f United States troops that could be characterized as defensive or\npioiective would not, for that reason alone, amount to \xe2\x80\x9c w ar.\xe2\x80\x9d A t best, the protective purpose o f the planned deploy\xc2\xad\nment is but one factor tending to show that our intervention would not amount to \xe2\x80\x9c w ar\xe2\x80\x9d ; it does not, in itself,\nestablish that conclusion.\n\n334\n\n\x0cProposed Deployment o f United Stales Armed Forces into Bosnia\n\nit takes for granted that he may make deployments in situations where hostilities\nare not actual or imminent, without purporting to limit the circumstances in which\nsuch deployments may be made, cf. id. \xc2\xa7 1541(c) (listing circumstances for intro\xc2\xad\nducing troops into actual or imminent hostilities), and without placing any restric\xc2\xad\ntion on the time during which the deployments may continue.\nIn our view, the Resolution lends support to the broader conclusion that the\nPresident has authority, without specific statutory authorization, to introduce\ntroops into hostilities in a substantial range of circumstances. Although the Resolu\xc2\xad\ntion asserts that \xe2\x80\x9c [t]he constitutional powers of the President as Commander-inChief\xe2\x80\x9d to introduce armed forces into actual or indicated hostilities are limited\nto three specific circumstances (i.e., when undertaken pursuant to a declaration\nof war or specific statutory authorization, or in a national emergency created by\nan attack on the United States, its territories or its armed forces), id. the Resolution\nalso declares that nothing in it \xe2\x80\x9c is intended to alter the constitutional authority\n. . . of the President.\xe2\x80\x9d Id. \xc2\xa7 1547(d)(1). The executive branch has traditionally\ntaken the position that the President\xe2\x80\x99s power to deploy armed forces into situations\nof actual or indicated hostilities is not restricted to the three categories specifically\nmarked out by the Resolution.8 Furthermore, as we have recently argued,\nthe structure of the War Powers Resolution (\xe2\x80\x9c WPR\xe2\x80\x9d ) recognizes\nand presupposes the existence of unilateral presidential authority\nto deploy armed forces \xe2\x80\x98into hostilities or into situations where\nimminent involvement in hostilities is clearly indicated by the cir\xc2\xad\ncumstances.\xe2\x80\x99 50 U.S.C. \xc2\xa7 1543(a)(1). The WPR requires that, in the\nabsence of a declaration of war, the President must report to Con\xc2\xad\ngress within forty-eight hours of introducing armed forces into such\ncircumstances and must terminate the use of United States armed\nforces within sixty days (or ninety days, if military necessity\nrequires additional time to effect a withdrawal) unless Congress\npermits otherwise. Id. \xc2\xa7 1544(b). This structure makes sense only\nif the President may introduce troops into hostilities or potential\nhostilities without prior authorization by the Congress: the WPR\nregulates such action by the President and seeks to set limits to\nit.\nOLC Haiti Letter at 175-76.9\n8 See, e.g., Overview o f the War Powers Resolution, 8 Op. O.L.C. 271, 274-75 (1984); War Powers: A Test\no f Compliance: Hearings Before the Subcomm. on International Security and Scientific Affairs o f the House Comm,\non International Relations, 94th Cong. 90 (1975) (statement o f Monroe Leigh, Legal Adviser, Department o f State).\n9 We do not understand the Resolution, in itself, to provide statutory authorization for introducing troops into\nhostilities; section 8(d)(2) o f the Resolution itself expressly disclaims any interpretation that it confers such authority.\nSee 50 U.S.C. \xc2\xa7 1547(d)(2).\n\n335\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nConclusion\nWe believe that the President has the authority to order the proposed deployment\nof United States forces in Bosnia, under the circumstances contemplated, without\nexpress statutory authorization.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n336\n\n\x0c'