b"Title III Electronic Surveillance Material and the Intelligence\nCommunity\nUnder T itle III o f the O m nibus C nm e Control and Safe Streets Act, law enforcem ent officials may\nshare with the intelligence com m unity inform ation obtained through surveillance authorized by\ncourts pursuant to T itle HI where it is done to obtain assistance in preventing, investigating, or\nprosecuting a crim e.\nLaw enforcem ent m ay also share with the intelligence com m unity inform ation obtained through\nsurveillance authorized by courts pursuant to T itle HI w here the inform ation is o f overriding im por\xc2\xad\ntance to national security or foreign relations and disclosure is necessary for the President to dis\xc2\xad\ncharge his constitutional responsibilities over these matters.\n\nOctober 17, 2000\nM e m o r a n d u m O p in io n\nO f f ic e\n\nof\n\nfor t h e\n\nI n t e l l ig e n c e P o l i c y\n\nC o u n sel\n\nand\n\nR e v ie w\n\nYou have requested our opinion on the extent to which law enforcement offi\xc2\xad\ncials may share with the intelligence community information obtained through\ncourt-authorized electronic surveillance pursuant to Title III of the Omnibus Crime\nControl and Safe Streets Act. We believe that such information may be shared\nin limited situations, namely, (1) where law enforcement shares the information\nwith the intelligence community to obtain assistance in preventing, investigating,\nor prosecuting a crime; and (2) where the information is of overriding importance\nto national security or foreign relations and where disclosure is necessary for the\nPresident to discharge his constitutional responsibilities over these matters. As we\nhave noted in a similar context, \xe2\x80\x9c this constitutional authority should not be exer\xc2\xad\ncised as a matter of course, but rather only in extraordinary circumstances and\nwith great care.\xe2\x80\x9d Disclosure o f Grand Jury Material to the Intelligence Commu\xc2\xad\nnity, 21 Op. O.L.C. 159, 160 (1997). Given the extraordinary nature of this\nauthority, we recommend that proper officials (e.g., the Attorney General or the\nDeputy Attorney General) be consulted before any such constitutionally-based\ndisclosure is made.\nI.\n\nTitle III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.\n\xc2\xa7\xc2\xa72510-2522 (1994 & Supp. II 1996), requires the government, unless otherwise\npermitted, to obtain an order of a court before conducting electronic surveillance.\nThe government is permitted to seek such orders only in connection with the\n261\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\ninvestigation of the criminal offenses enumerated in \xc2\xa72516 of title 18.1 Any inter\xc2\xad\nception not permitted by Title III is prohibited and subject to criminal and civil\nsanctions.2\nTitle III also governs the subsequent use and disclosure of information obtained\nas a result of court-authorized electronic surveillance.3 Section 2517 of title 18\nprovides in pertinent part:\n(1) Any investigative or law enforcement officer who, by any\nmeans authorized by this chapter, has obtained knowledge of the\ncontents of any wire, oral, or electronic communication, or evidence\nderived therefrom, may disclose such contents to another investiga\xc2\xad\ntive or law enforcement officer to the extent that such disclosure\nis appropriate to the proper performance of the official duties of\nthe officer making or receiving the disclosure.\n(2) Any investigative or law enforcement officer who, by any\nmeans authorized by this chapter, has obtained knowledge of the\ncontents of any wire, oral, or electronic communication or evidence\nderived therefrom may use such contents to the extent such use\nis appropriate to the proper performance of his official duties.4\n18 U.S.C. \xc2\xa72517 (1994). Section 2517(1) thus permits disclosure of court-authorized Title III information from one \xe2\x80\x9c investigative or law enforcement officer\xe2\x80\x9d\nto another, while Title III Electronic Surveillance Material and the Intelligence\nCommunity \xc2\xa72517(2) permits an \xe2\x80\x9c investigative or law enforcement officer\xe2\x80\x9d law\xc2\xad\n1 18 U S C. \xc2\xa72516 (1994 & Supp II 1996). W ith respect to the authonty to intercept communications in connection\nw ith federal investigations, \xc2\xa72516 distinguishes between wire and oral communications, on the one hand, and elec\xc2\xad\ntronic communications, on the other. Section 2516(1) empowers certain senior officials in the Department of Justice\nto authorize an application for a court order approving interception of wire and oral communications where the\ninterception may provide evidence of certain senous federal offenses, such as bnbery, unlawful use of explosives,\nwitness tampering, assassination, racketeering, gambling, embezzlement, bank fraud, sexual exploitation of children,\nmail fraud, counterfeiting, sale and transportation o f obscene matter, and firearms violations Section 2516(3), in\ncontrast, permits an application for interception o f electronic communications where the interception may provide\nevidence o f any federal felony.\nW ith respect to the authonty to intercept communications in connection with state investigations, \xc2\xa72516(2) does\nnot distinguish among wire, oral, and electronic communications. Section 2516(2) empowers the principal prosecuting\nattorney o f a state or subdivision thereof to apply to a state court for an intercept order in conformity with Title\nIII, if state law also authorizes such an application and if the interception would provide evidence of certain senous\noffenses, including murder, kidnapping, gambling, and extortion.\n2 In this memorandum, we do not address and express no opinion regarding use and disclosure of electronic surveil\xc2\xad\nlance information obtained in conformity w ith Title III but without a court order, such as one-party consent\nrecordings In addition, we do not consider electronic surveillance information obtained pursuant to the Foreign\nIntelligence Surveillance Act of 1978, 50 U S.C. \xc2\xa7\xc2\xa7 1801-1811 (1994).\n3 For purposes o f this memorandum, we assum e that the information to be shared was obtained pursuant to and\nmaintained in conformity with all o f the requirements of Title ill\n4 Section 2517(3) further permits the lawful recipient o f Title III information to disclose that information while\ntestifying under oath in court or similar proceedings Section 2517(5) authonzes use and disclosure as permitted\nin \xc2\xa72517(1) and (2) o f Title III informauon relating to offenses other than those specified m the electronic surveil\xc2\xad\nlance application\n\n262\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\nfully in possession of Title III information to \xe2\x80\x98 \xe2\x80\x98use\xe2\x80\x99\xe2\x80\x99 the information. The disclo\xc2\xad\nsure or use of information under these two sections must be \xe2\x80\x9c appropriate to the\nproper performance of the official duties\xe2\x80\x9d of the investigative or law enforcement\nofficers involved. A number of courts have stated that, under Title III, any elec\xc2\xad\ntronic surveillance or subsequent disclosure of Title III information is prohibited\nunless expressly permitted. See In re Grand Jury, 111 F.3d 1066, 1078 (3d Cir.\n1997); In re Motion to Unseal Elec. Surveillance Evidence (Smith v. Lipton), 990\nF.2d 1015, 1018 (8th Cir. 1993); United States v. Underhill, 813 F.2d 105, 107\n(6th Cir.), cert, denied, 482 U.S. 906 (1987); United States v. Dorfman, 690 F.2d\n1230, 1232 (7th Cir. 1982).\nII.\nA.\nSection 2517(1) permits disclosure of Title III information from one \xe2\x80\x9c investiga\xc2\xad\ntive or law enforcement officer\xe2\x80\x9d to another, \xe2\x80\x9c to the extent that such disclosure\nis appropriate to the proper performance of the official duties\xe2\x80\x9d of the officer\nmaking or receiving the disclosure. Section 2510(7) of title 18 defines \xe2\x80\x9c investiga\xc2\xad\ntive or law enforcement officer\xe2\x80\x9d as follows:\n\xe2\x80\x9c Investigative or law enforcement officer\xe2\x80\x9d means any officer of\nthe United States or of a State or political subdivision thereof, who\nis empowered by law to conduct investigations c f or to make arrests\nfor offenses enumerated in this chapter, and any attorney authorized\nby law to prosecute or participate in the prosecution of such\noffenses.\n18 U.S.C. \xc2\xa72510(7) (1994). Courts have taken a reasonably broad view of the\nscope of this definition, holding, for example, that \xc2\xa72510(7) covers an Assistant\nUnited States Attorney working on a civil forfeiture case, United States v. All\nRight, Title and Interest in Five Parcels o f Real Property and Appurtenances\nThereto Known as 64 Lovers Lane, 830 F. Supp. 750, 760 (S.D.N.Y. 1993), the\n\ncommittee of the House of Representatives considering the impeachment of a fed\xc2\xad\neral judge, In re Grand Jury Proceedings (Appeal o f Judge Alcee L. Hastings),\n841 F.2d 1048 (11th Cir. 1988), as well as a state attorney grievance commission\nempowered by law to investigate the offenses enumerated in 18 U.S.C. \xc2\xa72516,\nIn re Elec. Surveillance (Berg v. Michigan Attorney Grievance Comm'n), 49 F.3d\n1188 (6th Cir. 1995). Several courts have held that prison officials are also within\nthe definition of \xc2\xa72510(7). See, e.g., United States v. Sababu, 891 F.2d 1308,\n1328-29 (7th Cir. 1989). See also Bureau o f Prisons Disclosure o f Recorded\nInmate Telephone Conversations, 21 Op. O.L.C. 11, 15 n.10 (1997). An \xe2\x80\x9c inves\xc2\xad\n263\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ntigative or law enforcement officer,\xe2\x80\x9d however, must have the power to investigate\nor make arrests for offenses enumerated in \xc2\xa7 2516.5 Absent some specific authority\nto investigate or make arrests for such offenses, a member of the intelligence\ncommunity is not an investigative or law enforcement officer for purposes of Title\nIII. We are aware of no such authority.6 As a result, \xc2\xa72517(1), which permits\ndisclosure o f Title III information to other investigative or law enforcement offi\xc2\xad\ncers, does not apply to disclosures to the intelligence community.7 Accordingly,\nif an investigative or law enforcement officer is permitted to disclose Title IH\ninformation to a member of the intelligence community, that disclosure must con\xc2\xad\nstitute a \xe2\x80\x9c use\xe2\x80\x9d that is \xe2\x80\x9c appropriate to the proper performance of the official\nduties\xe2\x80\x99 \xe2\x80\x99 of the disclosing officer.\nB.\nWe must therefore consider the circumstances under which sharing information\nwith the intelligence community would be \xe2\x80\x9c appropriate to the proper performance\nof [the] official duties\xe2\x80\x9d of a law enforcement officer. For the reasons that follow,\nwe conclude that the text, legislative history, and purpose of Title III suggest\nthat disclosure to the intelligence community would be permissible when an inves\xc2\xad\ntigative or law enforcement officer seeks to obtain assistance in the prevention,\ninvestigation, or prosecution of a criminal offense.\nThe structure of \xc2\xa72517 suggests that Congress intended the phrase \xe2\x80\x9c appropriate\nto the proper performance of . . . official duties\xe2\x80\x9d to be construed narrowly. Con\xc2\xad\ngress included the limiting phrase both in \xc2\xa72517(1), governing one law enforce\xc2\xad\nment officer\xe2\x80\x99s disclosure of intercepted communications to another, and in\n\xc2\xa72517(2), governing a law enforcement officer\xe2\x80\x99s use of intercepted communica\xc2\xad\ntions. In support of an expansive reading of the phrase in \xc2\xa72517(2), it could be\nargued that a government employee in one agency has a general duty to share\nwith another government entity information that would be relevant to the latter\xe2\x80\x99s\n5Such offenses would include all federal felonies, see 18 U S C \xc2\xa72516(1), (3), and state offenses designated\nin \xc2\xa7 2516(2) See supra note 1.\n6 W e note that the Central Intelligence Agency ( \xe2\x80\x9c C IA \xe2\x80\x9d ) is specifically denied by statute \xe2\x80\x9c police, subpoena, or\nlaw enforcem ent powers or internal security functions \xe2\x80\x9d 50 U S.C. \xc2\xa7 4 0 3 -3 (d )(l) (1994). As discussed below, how\xc2\xad\never, we do not believe that statutory restrictions on the domestic or law enforcement activities of the CIA (or\nother agencies within the intelligence community) would prevent officers within the intelligence community from\nproviding certain assistance to law enforcement officers upon request. See infra pp. 270-71.\n7 W hen we refer to the intelligence community in this context, we do mean to include those members, such as\nFBI agents, who meet the statutory definition of an \xe2\x80\x9c investigative or law enforcement officer \xe2\x80\x9d We recognize that\nofficers empow ered to investigate violations of the offenses enumerated in \xc2\xa72516 could also have duties related\nto counterintelligence that do not involve prevention, investigation, o r prosecution of cnminal conduct. In such cir\xc2\xad\ncumstances, disclosure o f Title III information is permissible under \xc2\xa72517(1) if the disclosure is \xe2\x80\x9c appropnate to\nthe proper perform ance o f the official duties of the officer making or receiving the disclosure \xe2\x80\x9d As discussed infra\nsection 11B, Congress appears to have intended the phrase \xe2\x80\x9c appropriate to the proper performance of the official\nduties\xe2\x80\x9d to encom pass duties related to the prevention, investigation, or prosecution of criminal conduct. Accordingly,\nwe do not believe that Title III would authorize the disclosure o f electronic surveillance information solely for intel\xc2\xad\nligence purposes, even if the disclosing or receiving officer is also authorized to perform law enforcement functions.\nSee also infra note 12.\n\n264\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\nmission, and that it would therefore be \xe2\x80\x9c appropriate to the proper performance\xe2\x80\x9d\nof a law enforcement officer\xe2\x80\x99s duties to share Title III information with another\ngovernment agency for purposes entirely unrelated to the law enforcement offi\xc2\xad\ncer\xe2\x80\x99s own investigative activities. This broad construction of the phrase \xe2\x80\x9c appro\xc2\xad\npriate to the proper performance of . . . official duties\xe2\x80\x9d in \xc2\xa72517(2), however,\ncannot be squared with the existence of the virtually identical phrase in \xc2\xa7 2517(1).\nFirst, under basic canons of statutory construction, the phrases must be interpreted\nconsistently. See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484\xe2\x80\x9485 (1990); United\nSav. A ss\xe2\x80\x99n v. Timbers o f Inwood Forest Assocs., 484 U.S. 365, 371 (1988). If\n\xc2\xa72517(2) broadly permits the disclosure of Title III information to individuals\nwho are not law enforcement officers for purposes unrelated to law enforcement,\nthen \xc2\xa72517(1) would permit disclosure among law enforcement officers also for\npurposes unrelated to law enforcement. If so, the phrase \xe2\x80\x9c appropriate to the proper\nperformance of . . . official duties\xe2\x80\x9d would constitute only a highly elastic limita\xc2\xad\ntion on disclosure among law enforcement officers \xe2\x80\x94 a result that seems unlikely\nin light of Congress\xe2\x80\x99s effort in Title III to protect privacy to the maximum extent\npossible, consistent with permitting electronic surveillance for law enforcement\npurposes, see infra pp. 268-70. The most natural reading of the language is, to\nthe contrary, that the disclosure must be appropriate to the proper performance\nof law enforcement duties. Second, had Congress intended to permit broad sharing\nof Title III information among government entities with varying missions, it could\nmore easily have done so in \xc2\xa72517(1), by authorizing law enforcement officers\nto disclose Title III information to government employees generally rather than\nsolely to other law enforcement officers.\nThe legislative history of Title III and the case law support an interpretation\nconfining the phrase \xe2\x80\x9c appropriate to the proper performance of . . . official\nduties\xe2\x80\x9d in \xc2\xa72517(1) and (2) to the law enforcement functions o f the officer. The\nonly nontestimonial use of Title III information discussed in the legislative history\nof Title III is the \xe2\x80\x98 \xe2\x80\x98use of the contents of intercepted communications, for example,\nto establish probable cause for arrest, to establish probable cause to search, or\nto develop witnesses.\xe2\x80\x9d S. Rep. No. 90-1097, at 99 (1968), reprinted in 1968\nU.S.C.C.A.N. 2112, 2188 (citations omitted). Relying on this passage, the U.S.\nCourt of Appeals for the District of Columbia Circuit has stated that Congress\nsought in \xc2\xa72517 to serve \xe2\x80\x9c criminal law investigation and enforcement objec\xc2\xad\ntives.\xe2\x80\x9d American Friends Serv. Comm. v. Webster, 720 F.2d 29, 73 (D.C. Cir.\n1983) (invalidating order authorizing National Archives and Records Service to\ninspect Title III materials held by the FBI in part because disclosure to the\nArchives would not serve law enforcement objectives and therefore would not\nbe authorized by \xc2\xa72517(1) or (2)); see In re D isciplinary Proceedings Against\nSpinelli, 515 A.2d 825, 830-31 (N.J. Super. Ct. Law Div. 1986) (holding that\ndisclosure provisions of state statute similar to \xc2\xa72517 did not authorize release\nof wiretap material to police chief for disciplinary proceedings against officer\n\n265\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nbecause this was an employment, not a law enforcement, use); see also Lam Lek\nChong v. DEA, 929 F.2d 729, 734 (D.C. Cir. 1991) (following Webster). Con\xc2\xad\nsistent with this legislative purpose, the uses of Title III information permitted\nby courts have all related to law enforcement. See, e.g.. Certain Interested Individ\xc2\xad\nuals v. P ulitzer Pub \xe2\x80\x99g C o. , 895 F.2d 460, 465 (8th Cir.) (use of Title III informa\xc2\xad\ntion to obtain search warrant), cert, denied , 498 U.S. 880 (1990); United States\nv. Gerena, 869 F.2d 82, 84\xe2\x80\x9486 (2d Cir. 1989) (use of Title III information in\nlegal briefs and memoranda filed under seal with court); United States v.\nO \xe2\x80\x99Connell, 841 F.2d 1408, 1417-18 (8th Cir.) (disclosure of Title III information\nto a secretary and to an intelligence analyst who were assisting the law enforce\xc2\xad\nment officer in the investigation was \xe2\x80\x9c probably\xe2\x80\x9d permissible under \xc2\xa72517(2)),\ncert, denied, 487 U.S. 1210 (1988); United States v. Ricco, 566 F.2d 433, 435\n(2d Cir. 1977) (use of suppressed Title III wiretaps to refresh a witness\xe2\x80\x99s recollec\xc2\xad\ntion for trial), cert, denied, 436 U.S. 926 (1978); United States v. Rabstein, 554\nF.2d 190, 193 (5th Cir. 1977) (use o f duplicate tapes during investigation to obtain\nvoice identifications); United States v. Hall, 543 F.2d 1229, 1233 (9th Cir. 1976)\n(use of Title III information to make an arrest and conduct subsequent search),\ncert, denied, 429 U.S. 1075 (1977); United States v. Vento, 533 F.2d 838, 855\n(3d Cir. 1976) (use of Title III information to obtain an additional wiretap\nauthorization); United States v. Canon, 404 F. Supp. 841, 848-49 (N.D. Ala. 1975)\n(use of duplicate tapes during investigation to obtain voice identifications); see\nalso United States v. Martinez, 101 F.3d 684 (Table), 1996 WL 281570 (2d Cir.\n1996) (unpublished opinion) (allowing informant to listen to Title III tapes during\nthe investigation is permitted under \xc2\xa7 2517(2)), cert, denied, 520 U.S. 1270 (1997);\nBirdseye v. D riscoll, 534 A.2d 548, 552 (Pa. Commw. Ct. 1987) (use by prosecu\xc2\xad\ntors of electronic surveillance information in appeal from trial court order permis\xc2\xad\nsible under state statute modeled after Title III).\nThe principal cases suggesting a possible exception to the \xe2\x80\x9c law enforcement\nonly\xe2\x80\x9d rule are several involving the disclosure of Title III information to the IRS\nfor civil tax purposes. In these cases, courts permitted use of the Title III informa\xc2\xad\ntion in the civil tax proceeding. See Spatafore v. United States, 152 F.2d 415,\n417-18 (9th Cir. 1985); Griffin v. United States, 588 F.2d 521, 525-26 (5th Cir.\n1979); Fleming v. United States, 547 F.2d 872, 873-74 (5th Cir.), cert, denied,\n434 U.S. 831 (1977); Estate of Robert W. Best v. Commissioner, 76 T.C. 122,\n140-42 (1981). Each court relied, however, on the fact that the information had\nalready been publicly disclosed in court in a criminal prosecution. None of the\ncourts addressed whether disclosure would have been permissible under \xc2\xa72517(2)\nin the absence of prior disclosure in the criminal action. The legislative history\nof Title III explicitly states that the statute was not intended to restrict disclosure\nof information already publicly known. See S. Rep. No. 90-1097, at 93, reprinted\nin 1968 U.S.C.C.A.N. at 2181 (\xe2\x80\x9c The disclosure o f the contents of an intercepted\ncommunication that had already become \xe2\x80\x98public information\xe2\x80\x99 or \xe2\x80\x98common knowl\xc2\xad\n\n266\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\nedge\xe2\x80\x99 would not be prohibited.\xe2\x80\x9d ). Accordingly, we do not believe that this line\nof cases speaks directly to the circumstances under which \xc2\xa72517(2) permits law\nenforcement officers to disclose Title III information. Similarly, although the Sixth\nCircuit in Resha v. United States, 767 F.2d 285 (6th Cir. 1985), permitted\nintroduction in a civil tax proceeding of Title III information provided to the IRS\nby law enforcement officers, the court declined to address whether \xc2\xa72517(2)\nauthorized the disclosure. No criminal prosecution had resulted from the wiretaps,\nand, accordingly, the Title III information had not been disclosed in court. In\nthe civil tax proceeding, the trial court excluded the Title III information. The\nappellate court reversed, holding that Title I ll\xe2\x80\x99s prohibition on the use o f inter\xc2\xad\ncepted wire or oral communications in court, 18 U.S.C. \xc2\xa72515, requires exclusion\nwhen the original wiretap is illegal, but not when lawfully obtained information\nis illegally disclosed. Because the court concluded that \xc2\xa7 2515 did not bar introduc\xc2\xad\ntion of the Title III information whether or not \xc2\xa72517(2) permitted the FBI to\ndisclose the information to the IRS, the court declined to address whether the\ndisclosure was proper.8\nThe conclusion that \xc2\xa72517(2) authorizes disclosure of Title III material only\nfor purposes related to law enforcement is buttressed by the purpose of Title III:\nto maximize privacy, consistent with permitting electronic surveillance for law\nenforcement purposes. Title III was passed in response to the Supreme Court\xe2\x80\x99s\ndecisions in K atz v. United States, 389 U.S. 347 (1967), which held that electronic\nsurveillance was a search under the Fourth Amendment and thus required a courtapproved search warrant, and Berger v. New York, 388 U.S. 41 (1967), which\nset forth stringent particularity requirements for electronic surveillance warrants.\nTitle III represented a compromise between those who would have prohibited elec\xc2\xad\ntronic surveillance altogether and those who wanted broadly to permit its use for\n8 In Boettger v. Miklich, 633 A 2d 1146 (Pa 1993), the Pennsylvania Supreme Court held that a state provision\nvirtually identical to \xc2\xa72517(2) prohibited a law enforcement officer from disclosing wiretap information to federal\nand state tax authorities. In addition, although the Sixth Circuit in Resha held that \xc2\xa72515 does not prohibit the\nintroduction in civil proceedings o f lawfully intercepted but illegally disclosed information and declined to address\nwhether \xc2\xa72517(2) authorized the disclosure, the court below had directly considered the issue and had held that\n\xc2\xa72517(2) did not authorize the disclosure See Scott v. United States, 573 F. Supp. 622, 625 (M D Tenn 1983),\nrev'd on other grounds sub nom Resha v United Slates, 767 F.2d 285 (6th Cir. 1985), cert denied, 475 U S\n1081 (1986). Accordingly, the only two cases directly addressing whether \xc2\xa72517(2) authorizes law enforcement\nofficers to provide Title III material to tax authorities \xe2\x80\x94 Scott and Boettger\xe2\x80\x94 held that such disclosure violated\nthe statute\nOne other case might arguably be interpreted to suggest an exception to the \xe2\x80\x9c law enforcement only\xe2\x80\x9d rule. In\n64 Lovers Lane, 830 F. Supp. at 760, the court upheld the disclosure of wiretap evidence by state law enforcement\nofficers to an Assistant United States Attorney ( \xe2\x80\x9c AUSA\xe2\x80\x9d ) prosecuting a civil forfeiture action arising out of the\nstate criminal investigation The court\xe2\x80\x99s analysis in that case was principally, if not exclusively, focused on the\napplicability o f the statutory definition o f an \xe2\x80\x9c investigative or law enforcement officer,\xe2\x80\x9d as this appears to have\nbeen the only issue raised Id. Regarding \xe2\x80\x9c appropriate use,\xe2\x80\x9d the opinion simply states\xe2\x80\x99 \xe2\x80\x9c Since receipt and use\nof wiretap evidence is plainly appropriate for Assistant United States Attorneys prosecuting a civil forfeiture pro\xc2\xad\nceeding, disclosure o f wiretap evidence to them would seem covered by \xc2\xa72517(1) \xe2\x80\x9d Id The opinion contains no\nfurther analysis or discussion o f the issue We note, however, that the decision is not necessarily inconsistent with\nthe \xe2\x80\x9c law enforcement only\xe2\x80\x9d rule In addition to criminal prosecutions, the rule also arguably rrught extend, at least\nin certain circumstances, to other types o f judicial or trial proceedings that grow out of a criminal investigation\nC f In re Grand Jury Proceedings, 841 F 2 d at 1054 (congressional committee is an \xe2\x80\x9c investigative officer\xe2\x80\x9d for\npurposes o f 18 U S C \xc2\xa72517(1) when conducting impeachment proceeding)\n\n267\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nlaw enforcement. See Certain Interested Individuals, 895 F.2d at 467; Gerena,\n869 F.2d at 84; In re Application o f N a t\xe2\x80\x99l Broad. Co., 735 F.2d 51, 53 (2d Cir.\n1984). The Supreme Court, in an oft-quoted passage, has said that \xe2\x80\x9c although Title\nIII authorizes invasions of individual privacy under certain circumstances, the\nprotection of privacy was an overriding congressional concern.\xe2\x80\x9d Gelbard v.\nUnited States, 408 U.S. 41, 48 (1972) (footnote omitted); see also Forsyth v. Barr,\n19 F.3d 1527, 1534 (5th Cir. 1994) (quoting Gelbard)-, Lam Lek Chong, 929 F.2d\nat 732 (same); In re Motion to Unseal Elec. Surveillance Evidence, 990 F.2d at\n1018 (same); In re Application of N a t\xe2\x80\x99l Broad. Co., 735 F.2d at 53 (same); In\nre New York Times (U nited States v. Biaggi), 828 F.2d 110, 115 (2d Cir. 1987)\n( \xe2\x80\x9c It is obvious that although Title III authorizes invasions of individual privacy\nupon compliance with certain stringent conditions, the protection of privacy was\nan overriding congressional concern.\xe2\x80\x9d ); United States v. Cianfrani, 573 F.2d 835,\n856 (3d Cir. 1978) ( \xe2\x80\x9c Congress\xe2\x80\x99s overriding interest in protecting privacy to the\nmaximum extent possible is evident in Title III. The legislative history of the\nstatute emphasizes the concern of its drafters that the Act preserve as much as\ncould be preserved of the privacy o f communications, consistent with the legiti\xc2\xad\nmate law enforcement needs that the statute also sought to effectuate.\xe2\x80\x9d ).\nReflecting this concern for privacy, the First and Third Circuits have held that\nthe government may not introduce in a criminal prosecution wire or oral commu\xc2\xad\nnications obtained in violation of Title III, or evidence derived therefrom, even\nwhen private parties having no connection to the government unlawfully inter\xc2\xad\ncepted the communications. See 18 U.S.C. \xc2\xa72515;9 In re Grand Jury, 111 F.3d\nat 1077; United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). Contra United\nStates v. M urdock, 63 F.3d 1391, 1404 (6th Cir. 1995), cert, denied, 517 U.S.\n1187 (1996). Similarly, the D.C. and Ninth Circuits have held that \xc2\xa7 251 l(l)(c)\nand (d) prohibit a law enforcement officer from disclosing or using communica\xc2\xad\ntions if the officer has reason to know that a private party intercepted such commu\xc2\xad\nnications unlawfully, and that \xc2\xa72517(1) and (2) do not establish an exception\nto this prohibition. Berry v. Funk, 146 F.3d 1003, 1012-13 (D.C. Cir. 1998);\nChandler v. United States Army, 125 F.3d 1296, 1301-02 (9th Cir. 1997). But\nsee Forsyth, 19 F.3d at 1545 (holding that, where government was unaware for\nthe bulk o f its investigation that communications were illegally intercepted, use\nand disclosure of illegally intercepted communications was permissible; suggesting\nin dicta that government could use and disclose communications even if it knew\nthat the private party who provided the communications had intercepted them\nunlawfully). Additionally, several courts have found that the privacy interests pro\xc2\xad\ntected by Title III outweigh the public\xe2\x80\x99s and the press\xe2\x80\x99s qualified right of access\nto materials filed in connection with pretrial proceedings, where such access would\n9 Section 2515 provides that no wire or oral communication or evidence derived therefrom may be introduced\nin any judicial, administrative, or legislative proceeding if \xe2\x80\x9c the disclosure of that information would be in violation\nof this chapter. \xe2\x80\x99 \xe2\x80\x99 Section 2515 does not cover electronic communications.\n\n268\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\nreveal communications intercepted by law enforcement and the parties to the inter\xc2\xad\ncepted communications have not yet had the opportunity to challenge the legality\nof law enforcement\xe2\x80\x99s action.10\nFor all of these reasons, we conclude that the phrase \xe2\x80\x9c use . . . appropriate\nto the proper performance of . . . official duties\xe2\x80\x9d under \xc2\xa72517(2) comprehends\nuse by the law enforcement officer in his or her law enforcement work. It does\nnot follow, however, that Title III information can never be shared with persons\nwho are not law enforcement officers. Courts have recognized that a \xe2\x80\x9c use . . .\nappropriate to the proper performance of [the law enforcement officer\xe2\x80\x99s] official\nduties\xe2\x80\x9d under \xc2\xa72517(2) may involve the disclosure of Title III information to\npersons who are not law enforcement officers for the purpose of obtaining assist\xc2\xad\nance in enforcing the law. For example, in obtaining a voice identification, a law\nenforcement officer may disclose electronic surveillance information to a potential\nwitness without violating Title III. See, e.g., Canon, 404 F. Supp. at 8 4 8 ^ 9 . Simi\xc2\xad\nlarly, we believe that a law enforcement officer may disclose information obtained\nthrough a Title III intercept to an officer within the intelligence community in\norder to acquire intelligence information relevant to preventing, investigating, or\nprosecuting a crime. As we concluded with respect to grand jury materials, see\nDisclosure o f Grand Jury M aterial to the Intelligence Community, 21 Op. O.L.C.\nat 161, despite statutory restrictions on the CIA\xe2\x80\x99s role in exercising domestic or\nlaw enforcement functions, the CIA may engage in activities, such as collecting\nand providing information in response to specific requests from law enforcement\nor general law enforcement requirements, that do not constitute the exercise of\nlaw enforcement powers. Cf. 50 U.S.C. \xc2\xa7403-5a (Supp. II 1996) (authorizing ele\xc2\xad\nments of the intelligence community, \xe2\x80\x9c upon the request of a United States law\nenforcement agency,\xe2\x80\x9d to \xe2\x80\x9c collect information outside the United States about\nindividuals who are not United States persons. Such elements may collect such\ninformation notwithstanding that the law enforcement agency intends to use the\n:oSee, e.g , Certain Interested Individuals, 895 F 2 d at 466-67 (recognizing qualified First Amendment right of\naccess to affidavits filed in support of search warrant and containing Title III material, but upholding order redacting\nTitle 111 materials where individuals had not been indicted), In re Globe Newspaper C o, 729 F 2d 47, 53-54 (1st\nCir 1984) (upholding order closing bail hearing that would reveal Title III material, where defendants had not yet\nhad an opportunity to test whether law enforcement legally obtained the Title 111 material), Dorfman, 690 F.2d\nat 1234\xe2\x80\x9435, 1233 (holding that First Amendment does not require unsealing of Title III evidence submitted in a\nsuppression hearing, noting that \xe2\x80\x9c the strict prohibition in Title III against disclosure o f unlawfully obtained wiretap\nevidence would be undermined by public disclosure o f wiretap evidence at a suppression hearing before the judge\nruled on the lawfulness o f the wiretaps\xe2\x80\x9d ), Cianfram, 573 F 2d at 856-57 & n 10 (acknowledging right o f access\nto pretnal court proceedings, but concluding that limitations on disclosure are permissible where court has not yet\ndetermined the legality o f the interception), United States v. Shenberg, 791 F Supp 292, 293-94 (S D Fla. 1991)\n(holding that, until admissibility o f intercepted material has been determined, \xe2\x80\x9c the pnvacy interests of the defendants\nand the goal o f Title III outweigh the public\xe2\x80\x99s interest in present access to the Title III intercepted conversa\xc2\xad\ntions\xe2\x80\x9d ); In re Sealed Search Warrant fo r Cubic Corp., No 88-2945M , 1989 WL 16075, at *2\xe2\x80\x944 (S.D. Cal. Feb\n22, 1989) (denying press access to portions of search warrant and affidavit reflecting intercepted communications,\nwhere parties to intercepted communications had not been charged with a cnm e), see also Gerena, 869 F.2d at\n85-86 (acknowledging qualified First Amendment right o f access to pretrial motion papers containing Title III matenals; remanding for consideration o f whether redaction or sealing o f such matenals was required to protect defend\xc2\xad\nants\xe2\x80\x99 pnvacy and fair trial interests)\n\n269\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ninformation collected for purposes o f a law enforcement investigation or counter\xc2\xad\nintelligence investigation.\xe2\x80\x9d ).\nThus, for example, a law enforcement officer may share electronic surveillance\ninformation arising in connection with a terrorism investigation with the intel\xc2\xad\nligence community for the purpose of obtaining intelligence information con\xc2\xad\ncerning the structure of the terrorist organization or specific individuals who are\nunder investigation.11 Law enforcement officials are charged with investigating\nnumerous crimes related to national security, and the assistance of the intelligence\ncommunity may be essential to preventing, investigating, or prosecuting such\ncrimes. See, e.g., 28 U.S.C. \xc2\xa7533 note (1994) ( \xe2\x80\x9c Subject to the authority of the\nAttorney General, the FBI shall supervise the conduct of all investigations of vio\xc2\xad\nlations of the espionage laws of the United States by persons employed by or\nassigned to United States diplomatic missions abroad. All departments and agen\xc2\xad\ncies shall report immediately to the FBI any information concerning such a viola\xc2\xad\ntion.\xe2\x80\x9d ); 50 U.S.C. \xc2\xa7 402a(c)(i)(A) (1994) (requiring agency heads to ensure that\nthe FBI \xe2\x80\x9c is advised immediately o f any information, regardless of its origin,\nwhich indicates that classified information is being, or may have been, disclosed\nin an unauthorized manner to a foreign power or an agent of a foreign power\xe2\x80\x9d ).\nForeign intelligence information may also assist law enforcement in preventing,\ninvestigating, or prosecuting crimes with an extraterritorial component, such as\nvarious narcotics offenses or financial crimes.\nIn sum, we conclude that \xc2\xa72517(2) permits a law enforcement officer to share\ninformation obtained through court-authorized electronic surveillance with mem\xc2\xad\nbers of the intelligence community where the officer seeks to obtain assistance\nin preventing, investigating, or prosecuting a crime. A disclosure in these cir\xc2\xad\ncumstances would constitute a \xe2\x80\x9c use . . . appropriate to the proper performance\nof [the law enforcement officer\xe2\x80\x99s] official duties.\xe2\x80\x9d Disclosure of Title III informa\xc2\xad\ntion by law enforcement officers to members of the intelligence community, other\nthan to obtain assistance in law enforcement activities, is not permitted by this\nsection.12\n11 We discuss informational assistance by the intelligence community for illustrative purposes only. We do not\nintend to suggest that the intelligence community\xe2\x80\x99s role in assisting law enforcement is limited to providing informa\xc2\xad\ntional support.\n12 We further conclude that Title Ml information lawfully disclosed by a law enforcement officer to a member\nof the intelligence community in order to obtain law enforcement assistance, or disclosed by one member of the\nintelligence community to another m order to carry out the request for assistance, may not thereafter be disclosed\nby the m ember o f the intelligence community for intelligence purposes, unless the information has previously been\npublically disclosed. Cf. infra note 17 (distinguishing between disclosure in order to obtain law enforcement assistance\nand disclosure based on President\xe2\x80\x99s constitutional authonty over national security or foreign relations). To be sure,\nTitle I ll\xe2\x80\x99s explicit prohibitions on disclosure and use of intercepted communications extend only to illegally inter\xc2\xad\ncepted communications, 18 U.S.C \xc2\xa72511(l)(c), (d) (criminalizing disclosure or use where an individual has reason\nto know that \xe2\x80\x9c the information was obtained through the interception of a wire, oral, or electronic communication\nin violation o f this subsection\xe2\x80\x99\xe2\x80\x99), and legally intercepted communications where the disclosure is made \xe2\x80\x9c with intent\nto improperly obstruct, impede, or interfere with a duly authorized cnminal investigation,\xe2\x80\x9d id \xc2\xa72511 (1 )(e) Neverthe\xc2\xad\nless, \xc2\xa72517 authonzes disclosure o f lawfully obtained wire evidence by individuals who are not law enforcement\nofficers only in the specific circumstance of testim ony under oath, \xc2\xa72517(3), thereby implying \xe2\x80\x9c that what is not\npermitted is forbidden, though not necessanly under pain o f cnminal punishm ent\xe2\x80\x9d Dorfman, 690 F.2d at 1232,\n\n270\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\nc.\nIn 1980, this Office opined that Title III permitted the Department \xe2\x80\x9c to disclose\ntapes of court-authorized interceptions of wire communications in response to a\nproper request or demand by a congressional committee unless, in the Depart\xc2\xad\nment\xe2\x80\x99s judgment, such disclosure would be improper because of [the Depart\xc2\xad\nment\xe2\x80\x99s] duty faithfully to execute the criminal laws.\xe2\x80\x9d See Disclosure o f CourtAuthorized Interceptions o f Wire Communications to Congressional Committees,\n\n4B Op. O.L.C. 627, 627 (1980). This Office reached this conclusion by reasoning\nthat the proper performance of the official duties of Department personnel includes\nresponding to requests for information from congressional committees, and that\nsuch disclosure would constitute a \xe2\x80\x9c use\xe2\x80\x9d of Title III information \xe2\x80\x9c appropriate\nto the proper performance of [the law enforcement officer\xe2\x80\x99s] official duties\xe2\x80\x9d under\n\xc2\xa72517(2). The analysis underlying the conclusion of our 1980 opinion is in some\ntension with cases decided since the opinion was issued, see, e.g., Webster, 720\nF.2d at 73; In re D isciplinary Proceedings Against Spinelli, 515 A.2d at 83031; see also Lam Lek Chong, 929 F.2d at 734, and with the analysis of the text,\nlegislative history, and purpose of Title III set forth above, see supra pp. 26570. To the extent that the analysis reflected in the 1980 opinion suggests that\nthe phrase \xe2\x80\x9c appropriate performance of [the law enforcement officer\xe2\x80\x99s] official\nduties\xe2\x80\x9d includes all actions that law enforcement officers might take in their offi\xc2\xad\ncial capacities, regardless of whether they relate to law enforcement, the analysis\nis inconsistent with that set forth above and we therefore disavow it.13\n\nsee also In re Motion to Unseal Elec. Surveillance Evidence, 990 F.2d at 1018 ( \xe2\x80\x9c Congress provided for very limited\ndisclosure o f any wiretap evidence that is obtained\n. When addressing disclosure of the contents o f a wiretap,\nthe question is whether Title ill specifically authorizes such disclosure, not whether Title III specifically prohibits\nthe disclosure, for Title III prohibits all disclosures not authorized therein.\xe2\x80\x99*). If Congress intended to permit any\nperson who lawfully receives Title III information to disclose it freely prior to its public disclosure in court, then\n\xc2\xa72517(3), which authorizes a witness who has received such information to disclose it while giving testimony under\noath, would be entirely superfluous\nWe recognize that, as a practical matter. Title III material may be reflected in the thinking of a member of the\nintelligence community (or a law enforcement officer who also has duties related to counterintelligence, see supra\nnote 7), even if he or she does not disseminate the information The fact that a particular individual cannot purge\na thought, however, does not mean that the dissemination o f Title III information should be unrestricted\n13 As noted above, however, the U.S. Court of Appeals for the Eleventh Circuit has held that when Congress\nis effectively acting in a law enforcement capacity, such as when it considers impeachment, it may receive Title\n111 information as an \xe2\x80\x9c investigative or law enforcement officer\xe2\x80\x9d under \xc2\xa7 2517(1). See In re Grand Jury Proceedings,\n841 F 2 d at 1054 In dissent. Judge Jones took issue with this conclusion Id at 1057 (\xe2\x80\x9c I hold the view that to\nallow the House Committee to fall within this definition is to interpret the statute in a way in which Congress\nnever intended and in a way in which it should not be construed \xe2\x80\x9d )\nWe note that the analysis o f the 1980 opinion of this Office is at least implicitly inconsistent with the majority\nopinion in Hastings If law enforcement officers have a general duty to make Title 111 information available to\nother government entities that may benefit from it, then \xc2\xa72517(2) would have authorized disclosure of the Title\nIII information in question in Hastings, and the court never would have had to address whether Congress may\nreceive information under \xc2\xa7 2517( 1) as an \xe2\x80\x9c investigative or law enforcement officer\xe2\x80\x99 \xe2\x80\x99 when it considers impeachment\n\n271\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nm.\nWe next consider the possible effect of \xc2\xa7 104(a) of the National Security Act\n( \xe2\x80\x9c NSA\xe2\x80\x9d ), which provides:\nTo the extent recommended by the National Security Council and\napproved by the President, the Director of Central Intelligence shall\nhave access to all intelligence related to the national security which\nis collected by any department, agency, or other entity of the United\nStates.14\nSection 1.6(a) of Executive Order No. 12333 implements the NSA and provides:\nThe heads of all Executive Branch departments and agencies shall,\nin accordance with law and relevant procedures approved by the\nAttorney General under this Order, give the Director of Central\nIntelligence access to all information relevant to the national intel\xc2\xad\nligence needs of the United States, and shall give due consideration\nto the requests from the Director of Central Intelligence for appro\xc2\xad\npriate support for Intelligence Community activities.\n36 C.F.R. 204 (1982). We have analyzed these provisions in a related memo\xc2\xad\nrandum 15 and will not repeat the analysis here. For purposes of this memorandum\nwe will assume that, at least on some occasions, Title III electronic surveillance\nwill yield information that would otherwise be disclosable under \xc2\xa7 104(a) and the\nExecutive Order. We conclude, however, for the same reasons that the NSA does\nnot supersede or override restrictions on the use of grand jury information, that\nit also does not supersede or override the restrictions of Title III.\nTitle III prohibits every disclosure that it does not explicitly authorize. Nothing\nin the language of \xc2\xa7 104(a) \xe2\x80\x94 a provision added to the National Security Act in\n1992 \xe2\x80\x94 refers to Title III information, there is nothing in the legislative history\nof that section that suggests that Congress considered Title III information, and\nthe implementing executive order is qualified by the phrase \xe2\x80\x9c in accordance with\nlaw,\xe2\x80\x9d which at least suggests that existing law was not modified. Moreover, as\nwe noted in our recent memorandum concerning grand jury disclosure, see supra\nnote 15, the legislative history of \xc2\xa7 104(a) suggests that Congress itself intended\nno change in existing law.\nThe Supreme Court held in Illinois v. A bbott & Associates, Inc., 460 U.S. 557,\n573 (1983), that the Court would not construe a statute as overriding pre-existing\nrules of grand jury secrecy unless Congress affirmatively expressed its intent to\n,4 50 U.S C. \xc2\xa7 4 0 3 -4 (a) (1994). Section 104 o f the National Security Act was added in 1992, as part o f the Intel\xc2\xad\nligence Authorization Act for Fiscal Year 1993. Pub. L. No. 102-496, \xc2\xa7 705(a)(3), 106 Stat. 3188, 3192 (1992).\n15 Disclosure o f Grand Jury M aterial to the Intelligence Community, 21 Op. O .L C at 161-67\n\n272\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\ndo so. Title III does not have the historical roots of the grand jury secrecy rules.\nNonetheless, a similar approach is appropriate. In In re Application o f National\nBroadcasting Co., 735 F.2d at 51, the Second Circuit considered a 1970 amend\xc2\xad\nment to 18 U.S.C. \xc2\xa72517(3). Section 2517(3) permits persons lawfully in posses\xc2\xad\nsion of Title III information to disclose that information under oath in any pro\xc2\xad\nceeding held under the authority of the United States. Prior to 1970, such disclo\xc2\xad\nsure could be made only in criminal proceedings. Read literally, the 1970 amend\xc2\xad\nment would permit civil litigants to compel the production of Title III information\nat trial. The Second Circuit found no evidence that Congress intended this result.\nBecause of the privacy interests involved, the history of Title III as a compromise\nbetween those who wanted to ban wiretaps altogether and those who wanted\nbroadly to permit electronic surveillance for law enforcement, the fact that Title\nIII provided very limited exceptions to an otherwise complete ban on electronic\nsurveillance, and the constitutional concerns that would be raised by a contrary\nconclusion, the Second Circuit refused to construe \xc2\xa72517(3) to extend to civil\nlitigants in the absence of evidence that Congress intended this result. 735 F.2d\nat 53-54.\nIn light of the privacy interests underlying Title III, and in the absence o f at\nleast some evidence that Congress intended to create a new exception to Title\nIll\xe2\x80\x99s limits on disclosure, we believe it unlikely that a court would interpret\n\xc2\xa7 104(a) to permit otherwise prohibited disclosure of Title HI information to mem\xc2\xad\nbers of the intelligence community.\nIV.\nFinally, we believe that in extraordinary circumstances electronic surveillance\nconducted pursuant to Title III may yield information of such importance to\nnational security or foreign relations that the President\xe2\x80\x99s constitutional powers will\npermit disclosure of the information to the intelligence community notwithstanding\nthe restrictions of Title III. The legal basis for this conclusion is set forth in our\nmemorandum on grand jury disclosures. See 21 Op. O.L.C. at 172-75; see also\nDisclosure o f Grand Jury M atters to the President and Other Officials, 17 Op.\nO.L.C. 59 (1993). As we stated there, the Constitution vests the President with\nresponsibility over all matters within the executive branch that bear on national\ndefense and foreign affairs, including, where necessary, the collection and dissemi\xc2\xad\nnation of national security information.16 Because \xe2\x80\x9c [i]t is \xe2\x80\x98obvious and\nunarguable\xe2\x80\x99 that no governmental interest is more compelling than the security\nl6Cf. Department o f the Navy v. Egan, 484 U S 518, 527 (1988) ( \xe2\x80\x9c The President, after all, is the \xe2\x80\x98Commander\nin Chief of the Army and Navy o f the United States \xe2\x80\x99 U.S C o n st, Art I I , \xc2\xa7 2 His authonty to . . . control access\nto information beanng on national secunty .\nflows pnm anly from this constitutional investment o f power .\nand exists quite apart from any explicit congressional grant.\n. The authonty to protect such information falls\non the President as head of the Executive Branch and as Commander in C hief \xe2\x80\x9d ), House Permanent Select Committee\non Intelligence, 106th Cong , Record o f Proceedings on H R. 3829, the Intelligence Community Whistleblower Protec\xc2\xad\ntion A ct 11 (Comm. Print 1998) (Statement o f Randolph D Moss)\n\n273\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\no f the Nation,\xe2\x80\x9d Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v.\nSecretary o f State, 378 U.S. 500, 509 (1964)), the President has a powerful claim,\nunder the Constitution, to receive information critical to the national security or\nforeign relations and to authorize its disclosure to the intelligence community.\nWhere the President\xe2\x80\x99s authority concerning national security or foreign relations\nis in tension with a statutory rather than a constitutional rule, the statute cannot\ndisplace the President\xe2\x80\x99s constitutional authority and should be read to be \xe2\x80\x9c subject\nto an implied exception in deference to such presidential powers.\xe2\x80\x9d Rainbow\nNavigation, Inc. v. D epartment of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986)\n(Scalia, J.). We believe that, if Title III limited the access of the President and\nhis aides to information critical to national security or foreign relations, it would\nbe unconstitutional as applied in those circumstances.\nAccordingly, law enforcement officers who acquire information vital to national\nsecurity or foreign relations would be obliged to convey it to the appropriate\nsuperiors (e.g., the United States Attorney), who would report it to the Attorney\nGeneral or Deputy Attorney General, who would in turn report it to the President\nor his designee. The President (or appropriate officials acting on his behalf, such\nas the Attorney General) would be authorized to share such crucial information\nwith his executive branch subordinates, including intelligence community officials,\nto the extent necessary to discharge his constitutional responsibilities.17 Of course,\nthis constitutional authority should not be exercised as a matter of course. Rather,\nit should only be exercised in extraordinary circumstances and with great care,\nand only where disclosure is necessary to the discharge of the President\xe2\x80\x99s constitu\xc2\xad\ntional responsibilities over matters o f national security or foreign affairs. Even\nthen, any contemplated exercise of this authority would necessitate careful consid\xc2\xad\neration of the intrusion on privacy that might result.\nNor do we believe that disclosure o f Title III information in these circumstances\nwould violate the Fourth Amendment. Even if a disclosure of Title III information\n(as distinct from the seizure of the information) could otherwise violate the Fourth\nAmendment in some circumstances \xe2\x80\x94 a matter we do not address \xe2\x80\x94 we do not\nbelieve that this is an impediment to disclosure of Title III information of serious\nforeign affairs or national security import to the President. As we noted in our\n1997 grand jury memorandum, the Supreme Court has recognized in other con\xc2\xad\ntexts that government actions overriding individual rights or interests may be justi\xc2\xad\nfied where necessary to prevent serious damage to the national security or foreign\npolicy of the United States. See H aig, 453 U.S. at 309 (invoking the principle\nthat the Constitution\xe2\x80\x99s guarantees o f individual rights do not make it a \xe2\x80\x9c suicide\n17 As previously noted, when law enforcement shares Title III information with the intelligence community to\nobtain assistance in law enforcement, that information may not subsequently be disclosed or used solely for intel\xc2\xad\nligence purposes. See supra note 12. In contrast, when the President\xe2\x80\x99s constitutional authority over national security\nor foreign relations is the source o f the authority to disclose Title III information to intelligence community officials,\nand when further disclosure within the community is necessary to the discharge of the President\xe2\x80\x99s constituUonaJ\nresponsibilities, Title III cannot constitutionally be applied to preclude such disclosure.\n\n274\n\n\x0cTitle III Electronic Surveillance Material and the Intelligence Community\n\npact\xe2\x80\x9d ); American Communications A ss\xe2\x80\x99n v. Douds, 339 U.S. 382, 408-09 (1950)\n(to the same effect). We consider it very unlikely that the Court would conclude\nthat the Fourth Amendment prohibits the disclosure of information vital to the\nnational security or foreign relations of the United States.18\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n18 Indeed, courts have found a foreign intelligence exception to the warrant requirement of the Fourth Amendment\nSee, e.g., United States v Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980) (foreign intelligence exception\nto the Fourth Amendment warrant requirement, in view of \xe2\x80\x9c the need of the executive branch for flexibility, its\npractical experience, and its constitutional competence\xe2\x80\x9d for foreign affairs), cert, denied, 454 U S 1144 (1982);\nsee also United States v. United States District Court, 407 U S 297, 321-22 (1972) (warrant required for domestic\nsecurity electronic surveillance, but Court explicitly disclaims any intent to decide whether warrant clause applies\nto surveillance o f foreign powers or their agents). The Foreign Intelligence Surveillance Act of 1978, 50 U S C\n\xc2\xa7\xc2\xa71801-1811, permits foreign intelligence surveillance on a showing of probable cause that differs from that\napplicable in criminal cases, and if the surveillance discloses cnminal activity, the information obtained through\nthe surveillance may be admissible in a subsequent criminal prosecution. See United States v Isa, 923 F 2 d 1300\n(8th Cir. 1991), United States v Pelton, 835 F 2d 1067 (4th Cir. 1987), cert denied, 486 U.S. 1010 (1988). Consistent\nwith these cases, we believe that, to the extent that the Fourth Amendment might otherwise limit disclosure of\nTitle 111 information, disclosure o f information vital to national secunty or foreign affairs similarly is not limited\nby the Fourth Amendment\n\n275\n\n\x0c"


b'Application of 18 U.S.C. \xc2\xa7 207(c) to Proposed\nCommunications Between Retired Navy Flag\nOfficer and Marine Corps Commanders in\nIraq Regarding Security Issues\nAlthough more detailed information is needed to make a complete determination in this factsensitive area, it appears that 18 U.S.C. \xc2\xa7 207(c) would forbid at least some of the proposed\ncommunications between a retired Navy flag officer and Marine Corps commanders regarding the\nsecurity situation in Iraq.\n\nSeptember 13, 2005\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE NAVY\nThrough the General Counsel of the Department of Defense, you have asked\nfor our opinion whether 18 U.S.C. \xc2\xa7 207(c) (2000) prohibits certain proposed\ncommunications between a retired Navy flag officer, now employed by a\ndefense contractor under contract to provide services to the United States Air\nForce and Army Corps of Engineers in Iraq, and United States Marine Corps\ncommanders. See Letter for Steven G. Bradbury, Acting Assistant Attorney\nGeneral, Office of Legal Counsel, from William J. Haynes II, General Counsel,\nDepartment of Defense (Aug. 17, 2005). These communications \xe2\x80\x9cwould seek to\neffect changes . . . in the current state of security\xe2\x80\x9d in parts of Iraq and to \xe2\x80\x9cmake\nrecommendations\xe2\x80\x9d about procedures for pursuing the insurgents responsible for\nattacks on United States military personnel and private contractors. Memorandum for the Assistant Attorney General, Office of Legal Counsel, from Alberto\nJ. Mora, General Counsel of the Navy, Re: Request for Legal Opinion at 1 (Aug.\n10, 2005) (\xe2\x80\x9cMora Memorandum\xe2\x80\x9d). Although more detailed information is\nneeded to make a complete determination in this fact-sensitive area, it appears\nthat at least some of the proposed communications would be forbidden by\nsection 207(c).\nI.\nA rear admiral retired from the Navy and became employed as the President of\na company (\xe2\x80\x9cCompany\xe2\x80\x9d) whose parent entity (\xe2\x80\x9cParent\xe2\x80\x9d) is currently under contract\nwith the United States Air Force and United States Army Corps of Engineers to\nprovide construction and other services in Iraq. * As President of the Company, the\nretired officer oversees construction of two bases that the firm is building for the\nnew Iraqi army in an area of the country under the responsibility of the United\nStates Multi-National Force-West (\xe2\x80\x9cMNF-W\xe2\x80\x9d). The MNF-W command, com*\nEditor\xe2\x80\x99s Note: For privacy reasons, the name and affiliation of the officer in question have been\nredacted from the published version of this opinion.\n\n159\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nposed primarily of Marine Corps personnel, reports directly to CENTCOM, which\nin turns reports to the Secretary of Defense.\nIn recent months, attacks by Iraqi insurgents have killed or injured a number of\nthe Company\xe2\x80\x99s employees and subcontractors. Given the security situation, the\nCompany seeks to coordinate more effectively with the MNF-W commanders\nresponsible for securing the area in which the Company is working to fulfill its\ncontractual obligations. Given the retired officer\xe2\x80\x99s military experience, the Parent\nwould like him to communicate directly with MNF-W personnel on these matters.\nMore specifically,\nthe Parent wants the retired officer to provide information related to\nhis observations about security and defense, areas within the retired\nofficer\xe2\x80\x99s expertise. The Parent desires for the retired officer to ask\nquestions and seek information related to how the Parent\xe2\x80\x99s employees can better protect themselves, including communications regarding the Parent\xe2\x80\x99s scope of work and its coordination of on-site activity.\nLetter for Marilyn L. Glynn, Acting Director, Office of Government Ethics, from\nMichael R. Rizzo, McKenna, Long & Aldridge LLP, Re: Request for Formal\nAdvisory Opinion Pursuant to 5 CFR 2638.301 et seq. at 3 (May 31, 2005)\n(\xe2\x80\x9cRizzo Letter\xe2\x80\x9d). The Parent believes that effective communications on these\nissues between the retired officer and Marine Corps personnel is necessary to\nensure the security of the Company\xe2\x80\x99s employees and will potentially save lives. Id.\nII.\nSection 207(c) of title 18 provides criminal penalties for a \xe2\x80\x9csenior [officer] of\nthe executive branch\xe2\x80\x9d who\nwithin 1 year after the termination of his or her service or employment as such officer or employee, knowingly makes, with the intent\nto influence, any communication to or appearance before any officer\nor employee of the department or agency in which such person\nserved within 1 year before such termination, on behalf of any other\nperson (except the United States), in connection with any matter on\nwhich such person seeks official action by any officer or employee\nof such department or agency.\n18 U.S.C. \xc2\xa7 207(c)(1). Thus, as a recently retired senior naval officer, 1 the retired\nofficer is barred from making certain types of communications with \xe2\x80\x9cany officer\n1\nThere is no dispute that flag officers such as the retired officer qualify as \xe2\x80\x9csenior personnel\xe2\x80\x9d\nwithin the meaning of section 207(c). See 18 U.S.C. \xc2\xa7 207(c)(2)(iv).\n\n160\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 207(c) to Communications Regarding Security Issues\n\nor employee\xe2\x80\x9d of the Department of the Navy during the statute\xe2\x80\x99s one year \xe2\x80\x9ccooling\noff\xe2\x80\x9d period. Cf. 5 C.F.R. \xc2\xa7 2641, app. B (2005) (designating the Department of the\nNavy as \xe2\x80\x9cdistinct and separate\xe2\x80\x9d from other components of the Department of\nDefense for purposes of section 207). And because the Marine Corps is part of the\nDepartment of the Navy, see 32 C.F.R. \xc2\xa7 700.204(a) (2004), the prohibition\nextends to communications between the retired officer and Marine Corps personnel in Iraq.\nAt the same time, however, \xe2\x80\x9c[s]ection 207 does not by its terms forbid a former\nExecutive Branch official from communication with his former agency in all\ncircumstances.\xe2\x80\x9d Memorandum for Stuart M. Gerson, Assistant Attorney General,\nCivil Division, from Daniel L. Koffsky, Acting Assistant Attorney General, Office\nof Legal Counsel at 2 (Mar. 15, 1993) (\xe2\x80\x9cGerson Memorandum\xe2\x80\x9d). Instead, a\ncommunication is prohibited only if it is made (1) \xe2\x80\x9cwith the intent to influence\xe2\x80\x9d;\n(2) \xe2\x80\x9con behalf of any other person (except the United States)\xe2\x80\x9d; and (3) \xe2\x80\x9cin\nconnection with any matter on which such person seeks official action.\xe2\x80\x9d In\naddition, the statute offers a safe harbor to former senior officials who make or\nprovide a statement \xe2\x80\x9cwhich is based on the individual\xe2\x80\x99s own special knowledge in\nthe particular area that is the subject of the statement, if no compensation is\nthereby received.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(j)(4) (emphasis added). Based on the limited\nfactual information available to us, we believe that most of the communications\nproposed by the retired officer fall within section 207(c)\xe2\x80\x99s prohibition and are not\nprotected by the \xe2\x80\x9cspecial knowledge\xe2\x80\x9d exception. That conclusion, however, does\nnot apply to situations in which the retired officer would do nothing more than\nrequest generally available factual information from MNF-W relating to security\nor other matters relevant to the Company\xe2\x80\x99s work.\nIn the first place, the role contemplated for Mr. Kubic is not that of a behindthe-scenes operative, but rather is a direct and personal one in which Mr. Kubic\nwould be speaking to the Marine Corps officers with the intention that the\ninformation or views conveyed be attributed to him. Accordingly, Mr. Kubic\nwould undoubtedly be making \xe2\x80\x9ccommunications\xe2\x80\x9d within the meaning of section\n207(c). See \xe2\x80\x9cCommunications\xe2\x80\x9d Under 18 U.S.C. \xc2\xa7 207, 25 Op. O.L.C. 59, 62\n(2001) (construing section 207(c) to include an attribution requirement).\nMoreover, as we understand the retired officer\xe2\x80\x99s proposal, the purpose of at\nleast some of those communications would be to persuade the commanders in\nMNF-W to use their forces in ways that the retired officer believes will provide\nbetter protection for both civilian contractors (including the Company\xe2\x80\x99s employees) and military personnel. (We take it that this understanding is what the Rizzo\nLetter means when it refers to \xe2\x80\x9cdiscussions regarding scope of work and coordination of on-site activity issues.\xe2\x80\x9d Rizzo Letter at 2. 2) Insofar as he seeks to engage in\n2\nIn your memorandum requesting a legal opinion, you describe the retired officer\xe2\x80\x99s proposal this\nway: \xe2\x80\x9cThrough personal communication with local Marine commanders, if authorized, he would seek\nto effect changes in Marine Corps policy or practice regarding the current state of security around\n\n161\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nsuch communications, the retired officer would clearly be \xe2\x80\x9ctrying to influence the\nactivities of the agency involved,\xe2\x80\x9d and thus would satisfy the scienter and \xe2\x80\x9cofficial\naction\xe2\x80\x9d requirements of section 207(c). Applicability of 18 U.S.C. \xc2\xa7 207(c) to the\nBriefing and Arguing of Cases in Which the Department of Justice Represents a\nParty, 17 Op. O.L.C. 37, 43 (1993); see also 5 C.F.R. \xc2\xa7 2637.204(e) (2005)\n(section 207(c)\xe2\x80\x99s prohibition on attempting to influence \xe2\x80\x9capplies to situations in\nwhich there is an appreciable element of actual or potential dispute or an application or submission to obtain Government rulings, benefits or approvals\xe2\x80\x9d). 3 After\nall, decisions about how to deploy troops, and about how best to provide protection to military and civilian personnel in a war zone, are \xe2\x80\x9cofficial actions\xe2\x80\x9d of a\nbranch of the Armed Forces. Direct communications with members of that branch\nby a former senior officer made with the goal of influencing those decisions come\nwithin the scope of section 207(c).\nA different result follows, however, where the retired officer would merely be\nrequesting generally available factual information from MNF-W commanders.\nOGE has long taken the position, and we have agreed, that a communication\naimed solely at eliciting generally available information from a government\nagency is not made with the requisite \xe2\x80\x9cintent to influence\xe2\x80\x9d official agency action,\nand thus is not prohibited by section 207(c). See 5 C.F.R. \xc2\xa7 2637.204(e); Memorandum for Component Heads, from Timothy E. Flanigan, Assistant Attorney\nGeneral, Office of Legal Counsel at 8 (Nov. 18, 1992) (noting that section 207(c)\n\xe2\x80\x9cdoes not apply to requests for factual information\xe2\x80\x9d); Memorandum for Tony\nSchall, Assistant to the Attorney General, from Timothy Flanigan, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Post Employment Restrictions at 1 (Aug. 15, 1991) (\xe2\x80\x9cSchall Memorandum\xe2\x80\x9d) (same). The\nretired officer thus remains free under section 207(c) to seek information or advice\nfrom the Marines regarding such matters as the security situation or the steps being\ntaken by the military (or that the Company should take) to protect civilian\ncontractors in Iraq. Although the sparse factual record before us makes it impossible to determine the extent to which the retired officer\xe2\x80\x99s proposed communications\nwould actually fall into this category, it seems that at least some may do so. See,\ne.g., Rizzo Letter at 3 (\xe2\x80\x9cthe Parent desires for the retired officer to ask questions\nand seek information related to how the Parent\xe2\x80\x99s employees can better protect\nthemselves.\xe2\x80\x9d). We caution the retired officer, however, that especially where he\ncontemplates communicating with Marine Corps officers himself, the line between\n\nCamp India and make recommendations about procedures for pursuing the AIF [Anti-Iraqi Forces]\nresponsible for the mortar attacks.\xe2\x80\x9d Mora Memorandum at 1.\n3\nThe Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) regulations contained in 5 C.F.R. pt. 2637 were\nwritten with respect to section 207 as it existed prior to its amendment in 1989, but both OGE and this\nOffice have continued to rely on them when interpreting those portions of the statute that were\nunchanged by the amendments. See \xe2\x80\x9cCommunications\xe2\x80\x9d Under 18 U.S.C. \xc2\xa7 207, 25 Op. O.L.C. at 60\nn.3.\n\n162\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 207(c) to Communications Regarding Security Issues\n\nseeking information and providing advice or otherwise attempting to influence\ndecisions or actions may not always be clear, and that it is impermissible to use\nfactual inquiries in an effort to influence the agency to take particular official acts.\nSee Schall Memorandum at 2.\nNext, we must consider whether the proposed communications\xe2\x80\x94at least the\nones that are intended to influence\xe2\x80\x94will be made \xe2\x80\x9con behalf of\xe2\x80\x9d someone other\nthan the retired officer (or the United States). \xe2\x80\x9cBy the express terms of the statute,\na former officer or employee is free to communicate information or advice . . . as\nlong as he does not do so \xe2\x80\x98on behalf of any other person.\xe2\x80\x99\xe2\x80\x9d Gerson Memorandum\nat 2. We have previously opined that this language limits the reach of section 207\nto those \xe2\x80\x9ccommunications that are made by one who is acting as an agent or\nattorney, or in some other representational capacity for another.\xe2\x80\x9d Memorandum for\nMichael Boudin, Deputy Assistant Attorney General, Antitrust Division, from\nJ. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, Re:\nApplication of 18 U.S.C. \xc2\xa7 207(a) to Pardon Recommendation Made by Former\nProsecutor at 6 (Oct. 17, 1990) (\xe2\x80\x9cBoudin Opinion\xe2\x80\x9d). 4 The \xe2\x80\x9crepresentational\nrelationship\xe2\x80\x9d required by the statute \xe2\x80\x9centails at least some degree of control by the\nprincipal over the agent who acts on his or her behalf.\xe2\x80\x9d Id.\nHere, because it seems that the retired officer would be speaking not on his own\nbehalf, but rather at the behest and for the benefit of the Company, the statements\nhe proposes to make would clearly satisfy this test. As we understand the situation,\nthe retired officer\xe2\x80\x99s communications with MNF-W would be made in his capacity\nas President of ECCI and would be designed to help improve security in the parts\nof Iraq where the Company\xe2\x80\x99s personnel are working. In that context, it is difficult\nto deny that the retired officer would be acting \xe2\x80\x9csubject to the control or direction\xe2\x80\x9d\nof the firm, and thereby as the firm\xe2\x80\x99s agent or representative. Boudin Opinion at 6.\nSimply put, in this situation the retired officer would not \xe2\x80\x9cspeak[] for himself\nalone.\xe2\x80\x9d Gerson Memorandum at 3. Instead, he would speak for the Company and\nhis efforts to use direct communications with his former department to influence\nagency action would fall squarely within the prohibitory terms of section 207(c).\nFinally, we address the \xe2\x80\x9cspecial knowledge\xe2\x80\x9d safe harbor contained in section\n207(j)(4). That exception allows a former official to make statements based on the\nindividual\xe2\x80\x99s \xe2\x80\x9cown special knowledge,\xe2\x80\x9d but only if \xe2\x80\x9cno compensation is thereby\nreceived.\xe2\x80\x9d Even assuming that the security issues that would be the subject of the\nretired officer\xe2\x80\x99s statements would come within his own special knowledge, we\nagree with OGE that \xe2\x80\x9cthe receipt of a salary, or other compensation for doing\none\xe2\x80\x99s job generally, is sufficient, if the statement at issue is made as part of the\n4\nAlthough the Boudin Opinion addressed only 18 U.S.C. \xc2\xa7 207(a), the language it construed\xe2\x80\x94\xe2\x80\x9con\nbehalf of any other person\xe2\x80\x9d\xe2\x80\x94also appears in section 207(c), where it is used in the same way. Relying\non the interpretive canon that a phrase that appears in multiple places in the same statute should be\ngiven the same meaning in each, we have previously applied the Boudin Opinion\xe2\x80\x99s analysis to section\n207(c). See Gerson Memorandum at 3 & n.3.\n\n163\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nindividual\xe2\x80\x99s duties for his non-federal employer.\xe2\x80\x9d Letter for Michael R. Rizzo,\nMcKenna, Long & Aldridge LLP, from Marilyn L. Glynn, Acting Director, Office\nof Government Ethics at 5 (June 8, 2005). We think the best reading of the phrase\n\xe2\x80\x9cno compensation is thereby received\xe2\x80\x9d is that it excludes statements made in the\nordinary course of an agency relationship for which the speaker receives compensation. In other words, if a former official is paid to represent the interests of a\nparticular person or company, and makes statements aimed at advancing that end,\nhe receives compensation \xe2\x80\x9cthereby,\xe2\x80\x9d even if he is not paid on a statement-bystatement basis. Thus, as a salaried employee of the Company who would be\ncommunicating with the Marine commanders in the course of his employment, the\nretired officer may not take shelter in section 207(j)(4). A contrary conclusion\xe2\x80\x94\nthat a statement may be protected by section 207(j)(4) so long as the speaker is not\npaid specifically for making it\xe2\x80\x94would impermissibly convert the exception into a\nmere accounting rule. It would suggest, for instance, that a lawyer could represent\na client before the same agency where the lawyer was previously a senior official\nso long as he received a flat fee rather than an hourly rate. We do not think\nCongress intended to allow the statutory ban on such communications to be\ncapable of evasion merely by clever bookkeeping.\nWe certainly understand, and are sympathetic to, the retired officer\xe2\x80\x99s pleas that\nhe and his firm face a conflict between the federal ethics laws and the need to take\nsteps to protect his employees from further danger. As described above, however,\nat least some of the communications proposed by Mr. Kubic would be covered by\nthe language of section 207(c). And, although it contains a number of express\nexceptions for particular types of communications, see, e.g., 18 U.S.C. \xc2\xa7 207(j),\nthe statute makes no exception for emergency situations. Nor is there an exception\nfor communications made in war zones involving issues of safety and security.\nGiven that Congress has not seen fit to legislate such exceptions, we are not at\nliberty to interpret such provisions into existence merely to bring about a desirable\nresult.\nThis conclusion about the scope of section 207 does not leave the Company\nunable to communicate with military personnel in Iraq in order to help protect its\npersonnel. Any Company employee not covered by section 207(c) remains free to\ndiscuss security matters (or any other issue) with MNF-W, and certainly may seek\nto persuade the military commanders to take whatever protective actions are\nthought necessary. Indeed, so long as he does not act with the intention that the\nviews or information conveyed to Marine officers be attributed to him, the retired\nofficer may play a \xe2\x80\x9cbehind the scenes\xe2\x80\x9d role in such communications. \xe2\x80\x9cCommunications\xe2\x80\x9d Under 18 U.S.C. \xc2\xa7 207, 25 Op. O.L.C. at 63 (observing that under section\n207(c), \xe2\x80\x9cformer officials can sell their expertise to interested clients, and their\nclients can present all substantive information or views they wish to federal\nagencies\xe2\x80\x9d). In addition, as described above, the retired officer himself may seek\ngenerally available factual information from any military officer or department.\nAnd, because the Navy is separate from the Department of Defense for purpose of\n\n164\n\n\x0cApplication of 18 U.S.C. \xc2\xa7 207(c) to Communications Regarding Security Issues\n\nthe federal ethics laws, see 5 C.F.R. \xc2\xa7 2641, app. B, the retired officer may always\ncontact and attempt to influence officers and employees of military departments\nother than the Department of the Navy.\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n165\n\n\x0c'