b'(Slip Opinion)\n\nTemporary Certification Under the President\nJohn F. Kennedy Assassination Records\nCollection Act of 1992\nSection 5(g)(2)(D) of the President John F. Kennedy Assassination Records Collection\nAct of 1992 authorizes the President to issue a temporary certification postponing disclosure of a set of records without articulating record-specific justifications for further\npostponement of each individual record. The purpose of this postponement would be\nlimited to providing sufficient time to resolve which specific records warrant postponement under section 5(g)(2)(D). There is a strong likelihood that many of the records in question implicate the kinds of sensitivities about national security, law enforcement, and foreign affairs contemplated by the statute.\nSerious constitutional concerns would arise if the Act were construed to require the\nPresident to make premature disclosures of records while they are likely to contain\nstill-sensitive information.\nOctober 26, 2017\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nUnder the President John F. Kennedy Assassination Records Collection\nAct of 1992, Pub. L. No. 102-526, 106 Stat. 3443 (codified as amended\nat 44 U.S.C. \xc2\xa7 2107 note) (\xe2\x80\x9cJFK Act\xe2\x80\x9d or \xe2\x80\x9cthe Act\xe2\x80\x9d), approximately 34,000\nrecords relating to President Kennedy\xe2\x80\x99s assassination that have not previously been disclosed in full or in part to the public are to be released by\nOctober 26, 2017, unless the President certifies that their release would\npresent identifiable harm that outweighs the public\xe2\x80\x99s interest in disclosure. See JFK Act \xc2\xa7 5(g)(2)(D). In an October 12, 2017 memorandum,\nthe Archivist of the United States expressed \xe2\x80\x9csignificant concerns\xe2\x80\x9d about\nthe manner in which certain federal agencies had applied that standard in\ntheir proposals for postponing the release of some of their records beyond\nthat deadline. Memorandum for the President, from David S. Ferriero,\nArchivist of the United States, Re: Concerns Regarding Agency Proposals\nto Postpone Records Pursuant to Section 5 of the President John F.\nKennedy Assassination Records Collection Act of 1992 (JFK Act) at 1\n(Oct. 12, 2017) (\xe2\x80\x9cArchivist Memorandum\xe2\x80\x9d). Although the Archivist\nacknowledged that legitimate sensitivities \xe2\x80\x9ccould warrant continued\npostponement\xe2\x80\x9d of some of these records under the Act, he concluded that\n\xe2\x80\x9cthere is insufficient time for [the National Archives and Records Administration (\xe2\x80\x9cNARA\xe2\x80\x9d)] and the pertinent agencies to . . . identify those\ncertain, specific instances\xe2\x80\x9d in which continued postponement is appropriate. Id. at 1, 2.\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nYou have asked whether section 5(g)(2)(D) of the Act allows the President to issue a temporary certification postponing disclosure of a set of\nrecords without articulating record-specific justifications for further\npostponement of each individual record. The purpose of this postponement would be limited to providing sufficient time to resolve which\nspecific records warrant postponement under section 5(g)(2)(D). Under\nthe circumstances, in which the initial postponement would last for only a\nfew months and there is a strong likelihood that many of the records in\nquestion implicate the kinds of sensitivities about national security, law\nenforcement, and foreign affairs contemplated by the statute, we conclude\nthat section 5(g)(2)(D) authorizes the President to make such a certification.\nI.\nA.\nThe Act mandates that governmental entities with records relating to\nthe assassination of President Kennedy collect, review, and transfer those\nrecords to the President John F. Kennedy Assassination Records Collection (\xe2\x80\x9cJFK Collection\xe2\x80\x9d) maintained by NARA. See JFK Act \xc2\xa7\xc2\xa7 2(a)(1), 4,\n5(a). Approximately 272,000 records have already been released in full\nunder the Act. See Memorandum for John A. Eisenberg, Legal Adviser to\nthe National Security Council, from John P. Fitzpatrick, Senior Director\nfor Records, Access and Information Security Management, National\nSecurity Council, Re: Department and Agency Requests for Continued\nPostponement of Records under the JFK Assassination Records Collection Act at 1 (Oct. 25, 2017) (\xe2\x80\x9cNSC Memorandum\xe2\x80\x9d). As relevant now, the\nAct provides that each yet-to-be-released assassination record \xe2\x80\x9cshall be\npublicly disclosed in full\xe2\x80\x9d and made \xe2\x80\x9cavailable in the [JFK] Collection\xe2\x80\x9d\nby October 26, 2017, \xe2\x80\x9cunless the President certifies\xe2\x80\x9d that \xe2\x80\x9can identifiable\nharm to the military defense, intelligence operations, law enforcement, or\nconduct of foreign relations\xe2\x80\x9d necessitates continued postponement of\ndisclosure and \xe2\x80\x9coutweighs the public interest in disclosure.\xe2\x80\x9d JFK Act\n\xc2\xa7 5(g)(2)(D). 1\nThe Act defines an \xe2\x80\x9cassassination record\xe2\x80\x9d as \xe2\x80\x9ca record that is related to\nthe assassination of President John F. Kennedy, that was created or made\n1 We assume without deciding that the President\xe2\x80\x99s certification power under section\n5(g)(2)(D) is not delegable.\n\n2\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\navailable for use by, obtained by, or otherwise came into the possession\nof \xe2\x80\x9d various governmental entities. Id. \xc2\xa7 3(2). In 1995, the Assassination\nRecords Review Board (\xe2\x80\x9cBoard\xe2\x80\x9d)\xe2\x80\x94a short-lived agency established by the\nAct, see id. \xc2\xa7 7\xe2\x80\x94issued regulations interpreting \xe2\x80\x9cassassination record\xe2\x80\x9d\nbroadly, to encompass \xe2\x80\x9c[a]ll records collected by or segregated by all\nFederal, state, and local government agencies in conjunction with any\ninvestigation or analysis of or inquiry into the assassination of President\nKennedy.\xe2\x80\x9d 36 C.F.R. \xc2\xa7 1290.1(b)(2). Under the Board\xe2\x80\x99s interpretation,\n\xe2\x80\x9cassassination record[s]\xe2\x80\x9d include documents created well into the 1990s\npertaining to investigations, analyses, or inquiries into President Kennedy\xe2\x80\x99s assassination. 2\nThe Act gave federal offices until late 1993 to identify and review all\nassassination records in their possession and to begin transferring them\nto NARA for immediate public release. See JFK Act \xc2\xa7 5(c)(1). The Act,\nhowever, also established an exception under section 6, which allowed\npublic disclosure to be postponed up to October 26, 2017. A postponement under section 6 required \xe2\x80\x9cclear and convincing evidence that\xe2\x80\x9d the\nrecord in question implicated (1) certain sensitive information whose\ndisclosure would threaten national security or foreign affairs; (2) living\nindividuals who provided confidential information and would face a\nsubstantial risk of harm if their identities were revealed; (3) unwarranted\nintrusions into personal privacy; (4) confidential understandings between\nUnited States agents and cooperating individuals or foreign governments\nthat would be compromised and cause harm if publicly revealed; or\n(5) security or protective procedures that the government uses or might\nuse, where disclosure of those procedures would be sufficiently harmful. 3\n\n2\n\nConducting an \xe2\x80\x9cExpert Search\xe2\x80\x9d of the JFK Collection Reference System for records\ndated between 1990 and 1998 returns nearly 5,000 records. See NARA, JFK Assassination Records, Collection Reference System, https://www.archives.gov/research/jfk/search.\nhtml (last visited Oct. 26, 2017).\n3 More specifically, section 6 authorizes postponement of public disclosure of records\nor portions of records only when\nthere is clear and convincing evidence that\xe2\x80\x94\n(1) the threat to the military defense, intelligence operations, or conduct of foreign\nrelations of the United States posed by the public disclosure of the assassination\nrecord is of such gravity that it outweighs the public interest, and such public disclosure would reveal\xe2\x80\x94\n(A) an intelligence agent whose identity currently requires protection;\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nThe Board reviewed every record that a \xe2\x80\x9c[g]overnment office\xe2\x80\x9d identified as subject to postponement of disclosure under section 6 and made its\nown determination whether the record qualified as an \xe2\x80\x9cassassination\nrecord\xe2\x80\x9d and whether postponement was warranted. See id. \xc2\xa7 7(i)(2). The\nBoard began its work in April 1994 and ceased operating on September\n30, 1998. See Final Report of the Assassination Records Review Board\nat 13, 15 (Sept. 30, 1998) (\xe2\x80\x9cARRB Report \xe2\x80\x9d), https://www.archives.gov/\nfiles/research/jfk/review-board/report/arrb-final-report.pdf. In many cases,\nthe Board appears not only to have upheld the postponement of disclosure\nbut also to have concluded that postponement until 2017 was warranted.\nSee id. at 30 (\xe2\x80\x9c[T]he Review Board employs the term \xe2\x80\x98postponed\xe2\x80\x99 to mean\n\xe2\x80\x98redacted until the year 2017.\xe2\x80\x99\xe2\x80\x9d); see generally id. at 48\xe2\x80\x9374 (identifying\nvarious types of records as \xe2\x80\x9cpostponed\xe2\x80\x9d; explicitly identifying certain\ntypes of records as postponed for shorter periods of time when appropriate). The Act also allowed agencies to appeal the Board\xe2\x80\x99s determinations\nto the President, who was to issue a written certification specifying his\n(B) an intelligence source or method which is currently utilized, or reasonably\nexpected to be utilized, by the United States Government and which has not been\nofficially disclosed, the disclosure of which would interfere with the conduct of\nintelligence activities; or\n(C) any other matter currently relating to the military defense, intelligence operations or conduct of foreign relations of the United States, the disclosure of which\nwould demonstrably impair the national security of the United States;\n(2) the public disclosure of the assassination record would reveal the name or\nidentity of a living person who provided confidential information to the United\nStates and would pose a substantial risk of harm to that person;\n(3) the public disclosure of the assassination record could reasonably be expected\nto constitute an unwarranted invasion of personal privacy, and that invasion of privacy is so substantial that it outweighs the public interest;\n(4) the public disclosure of the assassination record would compromise the existence of an understanding of confidentiality currently requiring protection between a\nGovernment agent and a cooperating individual or a foreign government, and public disclosure would be so harmful that it outweighs the public interest; or\n(5) the public disclosure of the assassination record would reveal a security or\nprotective procedure currently utilized, or reasonably expected to be utilized, by the\nSecret Service or another Government agency responsible for protecting Government officials, and public disclosure would be so harmful that it outweighs the public interest.\nJFK Act \xc2\xa7 6. Although section 6 itself does not limit postponements to October 26, 2017,\nsection 5(g)(2)(D) requires that postponed records \xe2\x80\x9cbe publicly disclosed in full\xe2\x80\x9d by that\ndate unless the President certifies a further postponement under a different standard.\n\n4\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\ndetermination \xe2\x80\x9cunder the standards set forth in section 6\xe2\x80\x9d whether to\npostpone or disclose a record. JFK Act \xc2\xa7 9(d)(1).\nEven when the Board found that an assassination record qualified for a\npostponement under section 6, the Act thereafter required periodic review\n\xe2\x80\x9cby the originating agency and the Archivist\xe2\x80\x9d of whether the justifications\nfor postponement remained valid. See id. \xc2\xa7 5(g)(1)\xe2\x80\x93(2). Under this process, many records that previously qualified for postponement of disclosure under section 6 have already been released. Most recently, in July\n2017, NARA released \xe2\x80\x9c3,810 documents, including 441 formerly withheld-in-full documents and 3,369 documents formerly released with\nportions redacted,\xe2\x80\x9d originating from the Federal Bureau of Investigation\nand the Central Intelligence Agency. NARA, JFK Assassination Records\n\xe2\x80\x93 2017 Additional Documents Release, https://www.archives.gov/research/\njfk/2017-release (last visited Oct. 26, 2017).\nWhile approximately 272,000 assassination records have already been\nreleased in full, approximately 34,000 documents have yet to be disclosed, in whole or in part, because they have continued to satisfy section\n6. NSC Memorandum at 1, 2. In other words, federal agencies identified\nthese records as being subject to postponed disclosure under section 6, the\nBoard confirmed that \xe2\x80\x9cclear and convincing evidence\xe2\x80\x9d established that\none of the section 6 criteria applied, and the Act required periodic rereview to confirm that postponed disclosure remained justified. \xe2\x80\x9cOver\n90% of the remaining postponed records originated from or contain equities of the Central Intelligence Agency or the Federal Bureau of Investigation.\xe2\x80\x9d Id. at 2 n.5.\nIn light of section 5(g)(2)(D), the authority to withhold assassination\nrecords under section 6 expires on October 26, 2017. At that point, each\nremaining record \xe2\x80\x9cshall be publicly disclosed in full . . . unless the President certifies\xe2\x80\x9d that continued postponement is necessary to protect against\nidentifiable harm to national security, law enforcement, or foreign affairs,\nand that the harm outweighs the public interest in disclosure. JFK Act\n\xc2\xa7 5(g)(2)(D).\nB.\nWhen President George H.W. Bush signed the Act in 1992, he issued a\nsigning statement\xe2\x80\x94consistent with this Office\xe2\x80\x99s recommendation 4\xe2\x80\x94\n4 See Memorandum for W. Lee Rawls, Assistant Attorney General, Office of Legislative Affairs, from David G. Leitch, Deputy Assistant Attorney General, Office of Legal\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nexplaining that section 6 is unduly restrictive because it \xe2\x80\x9cdoes not contemplate nondisclosure of executive branch deliberations or law enforcement information of the executive branch . . . , and it provides only a\nnarrow basis for nondisclosure of national security information.\xe2\x80\x9d Statement on Signing the President John F. Kennedy Assassination Records\nCollection Act of 1992 (Oct. 26, 1992), 2 Pub. Papers of Pres. George\nBush 2004, 2004\xe2\x80\x9305 (1992\xe2\x80\x9393) (\xe2\x80\x9c1992 Signing Statement\xe2\x80\x9d). He further\nexplained that the President\xe2\x80\x99s \xe2\x80\x9cauthority to protect these categories of\ninformation comes from the Constitution and cannot be limited by statute,\xe2\x80\x9d and that the President \xe2\x80\x9ccannot abdicate [his] constitutional responsibility to take such action when necessary.\xe2\x80\x9d Id. at 2004.\nC.\nBetween September 2014 and November 2015, NARA sent notices to\nall agencies that still had records or portions of records postponed under\nsection 6, reminding them of the Act\xe2\x80\x99s October 26, 2017 disclosure deadline. See NSC Memorandum at 3. The National Security Council\xe2\x80\x99s Records Access and Information Security Interagency Policy Committee\ninstructed each affected agency to provide by May 1, 2017, a memorandum either advising that it was not asking the President to certify under\nsection 5(g)(2)(D) that continued postponement of records was necessary,\nor requesting continued postponement and supplying justifications that\nwould support presidential certification. Id. at 3\xe2\x80\x934. The agencies have\nrequested that the President certify that it is necessary to continue postponing the disclosure, either in whole or in part, of approximately 31,000\nrecords. Id. at 4.\nIn recent months, subject-matter experts at NARA reviewed the agencies\xe2\x80\x99 requests and raised concerns with National Security Council staff\nabout whether the agencies had complied with the statutory standard. As\nnoted above, on October 12, 2017, the Archivist of the United States\nwrote to the President of his \xe2\x80\x9csignificant concerns\xe2\x80\x9d about the proposed\npostponements. Archivist Memorandum at 1. In light of \xe2\x80\x9cthe information\nat issue and the related sensitivities,\xe2\x80\x9d the Archivist \xe2\x80\x9cagree[d]\xe2\x80\x9d that the\nrecords \xe2\x80\x9ccould warrant continued postponement in certain, specific in-\n\nCounsel, Re: Enrolled Bill S. 3006, President John F. Kennedy Assassination Records\nCollection Act, att. at 1\xe2\x80\x932 (Oct. 6, 1992) (recommending that the President \xe2\x80\x9cmake clear\nthat the bill cannot restrict the President\xe2\x80\x99s authority under the Constitution to protect\nconfidential information\xe2\x80\x9d).\n\n6\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\nstances.\xe2\x80\x9d Id. Based on NARA\xe2\x80\x99s review of a sampling of postponed records, however, the Archivist expressed doubt that agencies had properly\napplied the standard for postponing disclosure under section 5(g)(2)(D)\nin every instance. The Archivist also expressed the view that inconsistencies existed between the agencies\xe2\x80\x99 current requests for postponing disclosure of certain information and prior instances in which the same information had been disclosed. Accordingly, the Archivist concluded that\n\xe2\x80\x9cthere is insufficient time for NARA and the pertinent agencies to further\nconsider our concerns and identify those certain, specific instances where\ninformation could warrant continued postponement.\xe2\x80\x9d Id. at 2.\nII.\nYou have asked whether the Act permits the President to make a temporary certification that would postpone disclosure of a large number of\nthe remaining undisclosed records (or portions of records) to enable\ncompletion of the full review contemplated by the Archivist. You expect\nthe process of resolving the Archivist\xe2\x80\x99s concerns and making the necessary determinations to require an additional six months beyond the October 26, 2017 statutory deadline. For the reasons that follow, we conclude\nthat section 5(g)(2)(D) of the Act authorizes the President to certify the\nshort-term postponement you describe.\nA.\nThe Act requires public disclosure of all remaining assassination records by October 26, 2017, unless the requisite certification is made. In\nrelevant part, it provides as follows:\nEach assassination record shall be publicly disclosed in full, and\navailable in the Collection no later than the date that is 25 years after\nthe date of enactment of this Act [Oct. 26, 1992], unless the President certifies, as required by this Act, that\xe2\x80\x94\n(i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law\nenforcement, or conduct of foreign relations; and\n(ii) the identifiable harm is of such gravity that it outweighs\nthe public interest in disclosure.\nJFK Act \xc2\xa7 5(g)(2)(D). We conclude that the certification you propose\nwould satisfy the balancing test in section 5(g)(2)(D). As explained more\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nfully below, the President could reasonably determine that a short-term\npostponement is necessary because a premature release of records without\nadequate time to resolve agencies\xe2\x80\x99 concerns would present an identifiable\nharm to the interests identified in clause (i). Furthermore, he could reasonably determine that the public interest in immediate disclosure does\nnot outweigh the identifiable harm because disclosures would be postponed for, at most, six months.\n1.\nSuch a certification would satisfy section 5(g)(2)(D) even though the\nPresident would be determining that a group of records collectively warrants continued postponement. Section 5(g)(2)(D), in our view, does not\nrequire the President to articulate record-specific justifications for further\npostponement of each individual record. Although section 5(g)(2)(D)\nrequires that \xe2\x80\x9c[e]ach assassination record\xe2\x80\x9d withheld until 2017 \xe2\x80\x9cshall be\npublicly disclosed in full\xe2\x80\x9d unless the President makes the necessary certification, that provision is silent as to whether the President must make a\ncertification regarding each individual record, or whether he may make a\ncertification applicable to a group of withheld records that raises an identifiable harm. In the absence of specificity on this point, we believe that\nsection 5(g)(2)(D) gives the President discretion to issue a certification\npostponing disclosure of an entire group of records.\nLanguage in sections 6 and 9 of the Act reinforces the conclusion that\nthe contrasting language in section 5(g)(2)(D) does not require the President to determine that each individual record (or portion of a record),\nconsidered in isolation, would pose an identifiable harm outweighing the\npublic interest in disclosure. All of these provisions set forth criteria for\npostponing the disclosure of records. Within section 6, which defines the\nthreshold criteria that supported withholding records up until now, every\nsubsection demands an assessment of whether \xe2\x80\x9cthe public disclosure of the\nassassination record \xe2\x80\x9d would cause particular harms. JFK Act \xc2\xa7 6(1), (2),\n(3), (4), & (5) (emphasis added). For instance, section 6(1) requires that\n\xe2\x80\x9cthe threat to the military defense, intelligence operations, or conduct of\nforeign relations . . . posed by the public disclosure of the assassination\nrecord [be] of such gravity that it outweighs the public interest.\xe2\x80\x9d Similarly,\nsection 9(c), which specifies the Board\xe2\x80\x99s process for reviewing agencies\xe2\x80\x99\ndeterminations that records satisfy section 6, commands the Board to\nreview each assassination record individually before making \xe2\x80\x9ca determination that an assassination record shall be publicly disclosed in the Collec8\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\ntion or postponed for disclosure.\xe2\x80\x9d Id. \xc2\xa7 9(c)(4)(A) (emphasis added); see\nid. \xc2\xa7 9(c)(1)(A)\xe2\x80\x93(B) (the Board must direct public disclosure unless \xe2\x80\x9ca\nGovernment record is not an assassination record\xe2\x80\x9d or \xe2\x80\x9ca Government\nrecord or particular information within an assassination record qualifies for\npostponement\xe2\x80\x9d); id. \xc2\xa7 9(c)(2) (setting forth requirements for \xe2\x80\x9capproving\npostponement of public disclosure of an assassination record\xe2\x80\x9d). And section 9(d), which authorizes the President to issue a certification approving\nor disapproving the Board\xe2\x80\x99s decision, similarly requires the President to\napply the section 6 criteria separately to each record to determine whether\npostponement is warranted. See id. \xc2\xa7 9(d)(1) (\xe2\x80\x9cAfter the Review Board has\nmade a formal determination concerning the public disclosure or postponement of disclosure of an executive branch assassination record or\ninformation within such a record . . . the President shall have the sole and\nnondelegable authority to require the disclosure or postponement of such\nrecord or information under the standards set forth in section 6[.]\xe2\x80\x9d).\nSection 5(g)(2)(D)(i), however, uses very similar language to section\n6(1) in describing \xe2\x80\x9can identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations,\xe2\x80\x9d\nwithout expressly tying that harm to an individual assassination record.\nThese textual differences indicate that section 5(g)(2)(D) authorizes the\nPresident to certify that it is necessary to withhold an entire group of\nrecords the disclosure of which would present an identifiable harm outweighing the public interest in disclosure. See Sebelius v. Cloer, 569 U.S.\n369, 378 (2013) (\xe2\x80\x9cWe have long held that where Congress includes particular language in one section of a statute but omits it in another section\nof the same Act, it is generally presumed that Congress acts intentionally\nand purposely in the disparate inclusion or exclusion.\xe2\x80\x9d) (internal quotation\nmarks and brackets omitted).\nThis reading also reflects sensible policy aims. By the time the President determines whether to continue to postpone records under section\n5(g)(2)(D), each record has gone through an extensive and individualized\nmulti-year review process to verify that public disclosure would have\nbeen harmful in the 1990s and would still be harmful through October 26,\n2017. That history explains why Congress would have afforded the President additional flexibility when determining the necessity of postponing\ndisclosure beyond 2017. The different timetables for review under\nsection 6 and section 5(g)(2)(D) bolster this conclusion. By design, the\nsection 6 process took years and multiple stages of review\xe2\x80\x94including the\npossibility of presidential review\xe2\x80\x94to resolve which individual records\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nshould be withheld. Congress could have concluded that the President\xe2\x80\x99s\nreview under section 9(d)(1) of the Board\xe2\x80\x99s determinations about individual records would not interfere with the President\xe2\x80\x99s core duties, since any\nappeals would likely be staggered in time and most Board determinations\nwould not demand presidential action. Section 5(g)(2)(D), on the other\nhand, requires the President to make determinations about all remaining\npostponed records in a very short timeframe, because he must determine\nwhether postponement remains necessary in light of current concerns\nabout national security, law enforcement, and foreign affairs. If the President were barred from determining that a group of records collectively\nwarranted continued postponement, he would be forced to evaluate the\nindividual justifications for postponing tens of thousands of records on a\ncompressed timetable without adequate time for full consideration. Policy\nconcerns thus support interpreting section 5(g)(2)(D) to allow the President to issue a certification encompassing multiple records.\nWe further conclude that the proposed certification would satisfy the\nrequirement of section 5(g)(2)(D)(i) that there be \xe2\x80\x9can identifiable harm to\nthe military defense, intelligence operations, law enforcement, or conduct\nof foreign relations.\xe2\x80\x9d An \xe2\x80\x9cidentifiable harm\xe2\x80\x9d to national security, law\nenforcement, or foreign affairs includes the potential harm to those interests resulting from prematurely disclosing a batch of records that appears\nto contain sensitive information. The ordinary meaning of \xe2\x80\x9cidentifiable\xe2\x80\x9d\nis \xe2\x80\x9c[a]ble to be identified; capable of identification.\xe2\x80\x9d 7 Oxford English\nDictionary 618 (2d ed. 1989); see also, e.g., Random House Dictionary of\nthe English Language (Unabridged) 950 (2d ed. 1987) (defining \xe2\x80\x9cidentify\xe2\x80\x9d as \xe2\x80\x9c[t]o recognize or establish as being a particular person or thing\xe2\x80\x9d).\nAnd the ordinary meaning of \xe2\x80\x9charm\xe2\x80\x9d in this context is \xe2\x80\x9cinjury\xe2\x80\x9d or \xe2\x80\x9cdamage.\xe2\x80\x9d 6 Oxford English Dictionary at 1121. Thus, an \xe2\x80\x9cidentifiable harm\xe2\x80\x9d\nunder section 5(g)(2)(D)(i) involves the type of damage to national security, law enforcement, or foreign affairs that could be articulated or ascertained.\nTextual differences between sections 6, 9(d)(1), and 5(g)(2)(D) support\nthe conclusion that section 5(g)(2)(D) authorizes continued postponement\nbased on broad but recognizable harms. Specific language in section 6\nexpressly compels the government both to identify why disclosure would\npresent particularized harms to national security, law enforcement, or\nforeign affairs and also to substantiate that such harms would materialize.\nFor instance, section 6(1) does not just require that \xe2\x80\x9cthe threat to the\nmilitary defense, intelligence operations, or conduct of foreign relations\n10\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\n. . . posed by . . . public disclosure . . . [be] of such gravity that it outweighs the public interest.\xe2\x80\x9d JFK Act \xc2\xa7 6(1). It also demands evidence that\npublic disclosure (A) would specifically threaten the identity of an intelligence agent who \xe2\x80\x9crequires protection,\xe2\x80\x9d (B) would \xe2\x80\x9cinterfere with the\nconduct of intelligence activities\xe2\x80\x9d by compromising intelligence sources\nor methods that the United States presently used or was likely to use, or\n(C) \xe2\x80\x9cwould demonstrably impair the national security of the United\nStates.\xe2\x80\x9d Id. Similarly, under section 9(d)(1), if the President wishes to\nreverse a Board determination to disclose or postpone a record, he must\nnot only apply \xe2\x80\x9cthe standards set forth in section 6,\xe2\x80\x9d but must also issue\n\xe2\x80\x9can unclassified written certification . . . stating the justification for the\nPresident\xe2\x80\x99s decision, including the applicable grounds for postponement\nunder section 6.\xe2\x80\x9d\nUnder section 5(g)(2)(D), by contrast, the President need only certify\nthat \xe2\x80\x9ccontinued postponement is made necessary by an identifiable harm\nto the military defense, intelligence operations, law enforcement, or\nconduct of foreign relations,\xe2\x80\x9d and that \xe2\x80\x9cthe identifiable harm is of such\ngravity that it outweighs the public interest in disclosure.\xe2\x80\x9d Section\n5(g)(2)(D) contains no additional specifications of the types of harms that\nwould warrant postponing disclosure. Nor does it compel the President to\ndescribe which specific grounds necessitate postponement. Those differences from the earlier process are strong evidence that Congress intended\nsection 5(g)(2)(D) to be a less exacting standard that would not require\nthe President to pinpoint specific instances of harm that could arise from\ndisclosure. For the reasons noted above, there are also convincing policy\nreasons why Congress would have chosen to make section 5(g)(2)(D) less\nstringent than sections 6 and 9 in these regards.\nNor, in our view, does section 5(g)(2)(D) require evidentiary proof substantiating the likelihood that disclosing a record would cause \xe2\x80\x9cidentifiable harm.\xe2\x80\x9d Section 5(g)(2)(D) merely provides that the President must\ncertify that it is \xe2\x80\x9cnecessary\xe2\x80\x9d to postpone disclosure in light of an \xe2\x80\x9cidentifiable harm,\xe2\x80\x9d not that the President must establish that such harm would\noccur. By contrast, section 6 requires evidence that disclosing an intelligence source or method \xe2\x80\x9cwould interfere with the conduct of intelligence\nactivities,\xe2\x80\x9d id. \xc2\xa7 6(1)(B), or that disclosing other sensitive information\n\xe2\x80\x9cwould demonstrably impair the national security of the United States,\xe2\x80\x9d\nid. \xc2\xa7 6(1)(C). Those showings, like others under section 6, must be supported by \xe2\x80\x9cclear and convincing evidence.\xe2\x80\x9d Id. \xc2\xa7 6. In other statutes, too,\nCongress has specified the necessary level of certainty that harm to na11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\ntional security will occur. See, e.g., 50 U.S.C. \xc2\xa7 1885a(c) (requiring the\nAttorney General to certify that disclosure of certain materials in litigation\n\xe2\x80\x9cwould harm the national security of the United States\xe2\x80\x9d); id. \xc2\xa7 1845\n(requiring the Attorney General to certify that disclosure of evidence\nderived from the use of a pen register or trap-and-trace device \xe2\x80\x9cwould\nharm the national security of the United States\xe2\x80\x9d); id. \xc2\xa7 2656 (requiring the\nSecretary of Energy to notify Congress of intelligence losses deemed\n\xe2\x80\x9clikely to cause significant harm or damage to the national security interests of the United States\xe2\x80\x9d). The fact that Congress did not specify in\nsection 5(g)(2)(D) the degree of likelihood that disclosure would harm\nnational security, law enforcement, or foreign affairs suggests that Congress authorized the President to determine what level of risk necessitates\npostponing disclosure. 5\nThus, for purposes of the first half of section 5(g)(2)(D)\xe2\x80\x99s balancing\ntest, the President may reasonably conclude that the premature disclosure\nof the records at issue would present \xe2\x80\x9can identifiable harm to the military\ndefense, intelligence operations, law enforcement, or conduct of foreign\nrelations.\xe2\x80\x9d JFK Act \xc2\xa7 5(g)(2)(D)(i). Courts have long recognized that\nforcing the Executive Branch to disclose sensitive information can harm\nnational security, law enforcement, or foreign affairs. 6\n5 We recognize that section 5(g)(2)(D) refers to an \xe2\x80\x9cidentifiable harm to the military\ndefense, intelligence operations, law enforcement, or conduct of foreign relations,\xe2\x80\x9d\nwhereas section 6(1) instead refers to a \xe2\x80\x9cthreat to the military defense, intelligence\noperations, or conduct of foreign relations\xe2\x80\x9d (emphases added). While a \xe2\x80\x9charm\xe2\x80\x9d is an\n\xe2\x80\x9cinjury\xe2\x80\x9d and a \xe2\x80\x9cthreat\xe2\x80\x9d generally refers to the prospect of an impending injury, \xe2\x80\x9charm\xe2\x80\x9d in\nthe present context is necessarily a prediction of what injury may occur after disclosure.\nWe do not believe that Congress\xe2\x80\x99s use of the term \xe2\x80\x9charm\xe2\x80\x9d in section 5(g)(2)(D) implies\nthat this predicted injury must be more certain to occur than the \xe2\x80\x9cthreats\xe2\x80\x9d described in\nsection 6. Rather, as noted above, Congress in section 6 and other statutes appears to have\ndeliberately required the Executive Branch to specify a particular degree of likelihood or\ncertainty about a future harm, yet declined to add any such language to section 5(g)(2)(D).\n6 See CIA v. Sims, 471 U.S. 159, 175\xe2\x80\x9377 (1985) (\xe2\x80\x9c[F]orced disclosure of the identities\nof [the CIA\xe2\x80\x99s] intelligence sources could well have a devastating impact on the Agency\xe2\x80\x99s\nability to carry out its mission\xe2\x80\x9d and \xe2\x80\x9c[d]isclosure of the subject matter of the Agency\xe2\x80\x99s\nresearch efforts and inquiries may compromise the Agency\xe2\x80\x99s ability to gather intelligence\nas much as disclosure of the identities of intelligence sources.\xe2\x80\x9d); Snepp v. United States,\n444 U.S. 507, 511\xe2\x80\x9312 (1980) (per curiam) (disclosure of even unclassified information\n\xe2\x80\x9ccan be detrimental to vital national interests\xe2\x80\x9d by \xe2\x80\x9creveal[ing] information that the CIA\xe2\x80\x94\nwith its broader understanding of what may expose classified information and confidential\nsources\xe2\x80\x94could have identified as harmful\xe2\x80\x9d); Haig v. Agee, 453 U.S. 280, 307\xe2\x80\x9308 (1981)\n(\xe2\x80\x9cforeign policy and national security considerations cannot neatly be compartmental-\n\n12\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\nMoreover, the risk that the yet-to-be-released assassination records include sensitive information is not speculative. These records have previously and reliably been found to contain sensitive information about\nnational security, law enforcement, or foreign affairs, making it highly\nlikely that their release would present the harm identified in section\n5(g)(2)(D)(i). Disclosure of each of these records has already been postponed on the ground that the withheld information satisfied one of section\n6\xe2\x80\x99s standards, which overlap considerably with the interests protected by\nsection 5(g)(2)(D)(i). For example, for a record to have been protected\nfrom disclosure until 2017 under section 6(2), there had to be \xe2\x80\x9cclear and\nconvincing evidence\xe2\x80\x9d that disclosure would risk substantial harm to a\nliving confidential informant by revealing his or her identity and that this\nharm outweighed the public interest in disclosure. If that informant is\nalive today, disclosure would still likely pose \xe2\x80\x9can identifiable harm to . . .\nlaw enforcement.\xe2\x80\x9d JFK Act \xc2\xa7 5(g)(2)(D)(i). 7 The examples of records that\nized,\xe2\x80\x9d and \xe2\x80\x9c[s]ecrecy in respect of information gathered by [diplomatic officials] may be\nhighly necessary, and the premature disclosure of it productive of harmful results\xe2\x80\x9d)\n(internal quotation marks omitted); Halkin v. Helms, 690 F.2d 977, 993 (D.C. Cir. 1982)\n(\xe2\x80\x9c[I]t is obvious that the exposure of one who acted\xe2\x80\x94and indeed may still be acting\xe2\x80\x94as a\nCIA operative here and abroad would pose a threat to our diplomatic and military interests.\xe2\x80\x9d); Roviaro v. United States, 353 U.S. 53, 59 (1957) (recognizing \xe2\x80\x9cthe Government\xe2\x80\x99s\nprivilege to withhold from disclosure the identity of persons who furnish information of\nviolations of law to officers charged with enforcement of that law\xe2\x80\x9d and noting that the\n\xe2\x80\x9cpurpose of the privilege is the furtherance and protection of the public interest in effective law enforcement\xe2\x80\x9d); United States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017) (citing\nRoviaro); Smith v. Lanier, 726 F.3d 166, 167 (D.C. Cir. 2013) (same).\n7 To be sure, the section 6 categories are not wholly subsumed within the section\n5(g)(2)(D) standard. Section 6(3)\xe2\x80\x94covering records whose disclosure \xe2\x80\x9ccould reasonably\nbe expected to constitute an unwarranted invasion of personal privacy\xe2\x80\x9d\xe2\x80\x94does not have an\nobvious analogue in section 5(g)(2)(D). But that is a relatively minor concern, as very few\nof the remaining postponements were made under section 6(3). See ARRB Report at 63\n(noting that the Board \xe2\x80\x9calmost never agreed to sustain [an] agency\xe2\x80\x99s requests for postponements on personal privacy grounds\xe2\x80\x9d); id. at 64 (noting that certain prisoner-of-war\ninformation was postponed under section 6(3), but only until 2008). Of the privacy\npostponements that remain in effect, some may still fall within one of the categories\nidentified in section 5(g)(2)(D)(i). For example, the Board \xe2\x80\x9cagreed to sustain the postponement of the identity of a 13-year-old girl who was a rape victim . . . in the file of an\norganized crime figure.\xe2\x80\x9d Id. at 63. The President could still find that the continued\npostponement of this sort of information is necessary to prevent identifiable harm to law\nenforcement sufficient to meet section 5(g)(2)(D)(i). Such a finding would be consistent\nwith part of the \xe2\x80\x9coft-cited Frankenhauser test\xe2\x80\x9d for the law enforcement component of\nexecutive privilege, which asks courts to consider, among other factors, \xe2\x80\x9cthe extent to\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nthe Board deemed eligible for postponement under section 6 underscore\nthis point. For instance, the Board authorized postponing disclosure of\nrecords containing \xe2\x80\x9cCIA surveillance methods where CIA provided convincing evidence that the method still merited protection.\xe2\x80\x9d ARRB Report\nat 53. It is reasonable to conclude that disclosing such a method now\ncould still present \xe2\x80\x9can identifiable harm to . . . intelligence operations.\xe2\x80\x9d\nJFK Act \xc2\xa7 5(g)(2)(D)(i). More generally, NARA\xe2\x80\x99s independent review of\na sampling of the records at issue concluded that many still contain highly\nsensitive information. See Archivist Memorandum at 1 (\xe2\x80\x9cWe are familiar\nwith the information at issue and the related sensitivities and agree that\nthey could warrant continued postponement in certain, specific instances.\xe2\x80\x9d). And in the absence of further interagency coordination and review,\nit is not yet possible to determine which specific records would warrant\ncontinued postponement of disclosure.\n2.\nWe also believe that it would be reasonable for the President to conclude that the identifiable harm from premature disclosure of such records\nwould, as section 5(g)(2)(D)(ii) requires, be \xe2\x80\x9cof such gravity that it outweighs the public interest in disclosure.\xe2\x80\x9d\nImportantly, the proposed postponement would last only a few more\nmonths. As a result, the relevant public interest consists only in the difference between having disclosures occur now and having disclosures occur\nwithin the next six months. That interest weighs comparatively little in the\nstatutory balance, especially in the wake of fully authorized postponements of decades. 8 The public interest in full access to assassination\nrecords is significant. But a temporary delay in disclosure would still\nallow that interest to be vindicated fairly soon; in contrast, disclosure of\nwhich disclosure will thwart governmental processes by discouraging citizens from giving\nthe government information.\xe2\x80\x9d In re U.S. Dep\xe2\x80\x99t of Homeland Sec., 459 F.3d 565, 570 (5th\nCir. 2006) (quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. Mar. 13, 1973)\n(unpublished)); see also, e.g., Manna v. U.S. Dep\xe2\x80\x99t of Justice, 51 F.3d 1158, 1166 (3d Cir.\n1995) (protecting the withholding of names of \xe2\x80\x9claw enforcement officers, interviewees,\nand witnesses\xe2\x80\x9d because of the possibility of \xe2\x80\x9charassment and retaliation\xe2\x80\x9d).\n8 Accounting for the length of the proposed postponement is consistent with the\nBoard\xe2\x80\x99s analysis under section 6 of whether particular types of risks from disclosure\noutweighed the public interest. See, e.g., ARRB Report at 64 (postponing until 2008 the\nrelease of private details from prisoner-of-war records from the Korean conflict, based on\nthe expected lifespan of affected individuals).\n\n14\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\nsensitive information would compromise other important interests irrevocably. In our view, the concrete risk of harm that premature disclosure of\nsensitive records would pose to national security, law enforcement, and\nforeign affairs clearly outweighs the public interest in accessing these\nrecords up to six months earlier.\nIt could of course be said that the government has already had 25 years\nto review the records at issue, and that the public interest in disclosure\nafter the Act\xe2\x80\x99s statutory deadline should outweigh the Executive\xe2\x80\x99s need\nfor still more time to assess these records. But that argument misapprehends the review process, as well as the Act\xe2\x80\x99s different standards for\ndelaying the disclosure of records before and after October 26, 2017. As\nnoted, the records at issue have already been repeatedly reviewed. Thus\nfar, the Act has required the government to satisfy section 6\xe2\x80\x99s criteria for\ndelaying disclosure of each record. As part of that process, the Board\nconfirmed that records could remain exempt from disclosure until October\n26, 2017. After that date, however, the government must instead rely on\na certification under section 5(g)(2)(D) that continued postponement is\nnecessary. But during the certification review process, NARA\xe2\x80\x99s questions\nabout other agencies\xe2\x80\x99 applications of section 5(g)(2)(D) have prevented\nthe Executive Branch from definitively resolving which remaining records\ncan continue to be withheld. Nor would it have been feasible to begin\nreviewing records under the section 5(g)(2)(D) standard much earlier. The\nfurther in advance of 2017 that agencies tried to apply section 5(g)(2)(D),\nthe greater the risk of inaccurately assessing whether disclosure in 2017\nwould risk an identifiable harm to national security, law enforcement, or\nforeign affairs.\nB.\nPrinciples of constitutional avoidance strongly support our conclusion\nthat section 5(g)(2)(D) authorizes the President to postpone temporarily\nthe full disclosure of the records at issue. See, e.g., Edward J. DeBartolo\nCorp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,\n575 (1988) (\xe2\x80\x9c[W]here an otherwise acceptable construction of a statute\nwould raise serious constitutional problems, the Court will construe the\nstatute to avoid such problems unless such construction is plainly contrary\nto the intent of Congress.\xe2\x80\x9d). Serious constitutional concerns would arise\nif the Act were construed to require the President to make premature\ndisclosures of records while they are likely to contain still-sensitive\ninformation.\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nThe President\xe2\x80\x99s position as \xe2\x80\x9chead of the Executive Branch and as\nCommander in Chief \xe2\x80\x9d confers upon him the \xe2\x80\x9cauthority to classify and\ncontrol access to information bearing on national security\xe2\x80\x9d\xe2\x80\x94an authority\nthat \xe2\x80\x9cexists quite apart from any explicit congressional grant.\xe2\x80\x9d Dep\xe2\x80\x99t of\nthe Navy v. Egan, 484 U.S. 518, 527 (1988). Courts accordingly \xe2\x80\x9cshow[]\ndeference to what the Executive Branch has determined . . . is essential to\nnational security.\xe2\x80\x9d Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (internal quotation marks omitted); see also Egan, 484 U.S. at 529 (finding that\n\xe2\x80\x9cthe protection of classified information must be committed to the broad\ndiscretion of the agency responsible,\xe2\x80\x9d and declining to \xe2\x80\x9cdetermine what\nconstitutes an acceptable margin of error in assessing the potential risk\xe2\x80\x9d\nof improper access or disclosure). The Supreme Court has similarly emphasized \xe2\x80\x9cthe generally accepted view that foreign policy [is] the province\nand responsibility of the Executive,\xe2\x80\x9d and that \xe2\x80\x9ccourts have traditionally\nshown the utmost deference to Presidential responsibilities\xe2\x80\x9d in that area.\nId. at 530 (internal quotation marks and citations omitted).\nOpinions by Attorneys General and this Office have repeatedly recognized the President\xe2\x80\x99s authority and responsibility to protect against the\nrelease of information affecting the Executive Branch\xe2\x80\x99s intelligence\nactivities, military operations, conduct of foreign affairs, or law enforcement proceedings, even in the face of statutory disclosure requirements.\nSee, e.g., Whistleblower Protections for Classified Disclosures, 22 Op.\nO.L.C. 92, 95 (1998) (discussing \xe2\x80\x9cthe right of the President to decide to\nwithhold national security information from Congress under extraordinary\ncircumstances\xe2\x80\x9d); Presidential Certification Regarding the Provision of\nDocuments to the House of Representatives Under the Mexican Debt\nDisclosure Act of 1995, 20 Op. O.L.C. 253, 265\xe2\x80\x9376 (1996) (discussing the\n\xe2\x80\x9cPresident\xe2\x80\x99s constitutional authority to control the disclosure of documents and information relating to diplomatic communications\xe2\x80\x9d); Assertion\nof Executive Privilege in Response to Congressional Demands for Law\nEnforcement Files, 6 Op. O.L.C. 31, 35 (1982) (opinion of Attorney\nGeneral William French Smith) (\xe2\x80\x9c[I]f the President believes that certain\ntypes of information in law enforcement files are sufficiently sensitive\nthat they should be kept confidential, it is the President\xe2\x80\x99s constitutionally\nrequired obligation to make that determination.\xe2\x80\x9d); see also Prosecution\nfor Contempt of Congress of an Executive Branch Official Who Has\nAsserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140 (1984)\n(\xe2\x80\x9cNearly every President since George Washington has found that in order\nto perform his constitutional duties it is necessary to protect the confidentiality of certain materials, including . . . national security information[]\n16\n\n\x0cTemporary Certification Under the JFK Assassination Records Collection Act\n\nand sensitive law enforcement proceedings, from disclosure to Congress.\xe2\x80\x9d). Those opinions are consistent with President Bush\xe2\x80\x99s determination that the Act\xe2\x80\x99s disclosure requirement could not be allowed to interfere with the President\xe2\x80\x99s constitutional authority to \xe2\x80\x9cprotect confidential\nexecutive branch materials and to supervise and guide executive branch\nofficials.\xe2\x80\x9d 1992 Signing Statement at 2005.\nOne necessary incident of the President\xe2\x80\x99s authority to control sensitive\nexecutive branch information is the ability to determine in the first instance which records contain such information. Thus, construing section\n5(g)(2)(D) to deprive the President of the ability to withhold records in\norder to give the Executive Branch adequate time to determine which\nrecords contain still-sensitive information about national security, law\nenforcement, or foreign affairs would impermissibly encroach upon a core\npresidential prerogative. In an analogous circumstance, when it had not\nbeen possible to review a large set of documents in the time allowed by a\ncongressional subpoena, Attorney General Janet Reno concluded that a\nprotective assertion of executive privilege was appropriate, pending final\ndecisions about \xe2\x80\x9cwhich specific documents are deserving of a conclusive\nclaim of executive privilege.\xe2\x80\x9d Protective Assertion of Executive Privilege\nRegarding White House Counsel\xe2\x80\x99s Office Documents, 20 Op. O.L.C. 1, 1\n(1996). There, the protective assertion was necessary because the volume\nof documents could not be \xe2\x80\x9cspecifically and individually reviewed\xe2\x80\x9d within the time available. Id. Here, too, the Archivist has concluded that it\nis not possible within the time available to resolve remaining questions\nregarding whether individual records still contain sensitive information.\nAs we have explained, \xe2\x80\x9c[w]here the President\xe2\x80\x99s authority concerning\nnational security or foreign relations is in tension with a statutory rather\nthan a constitutional rule, the statute cannot displace the President\xe2\x80\x99s\nconstitutional authority and should be read to be \xe2\x80\x98subject to an implied\nexception in deference to such presidential powers.\xe2\x80\x99\xe2\x80\x9d Title III Electronic\nSurveillance Material and the Intelligence Community, 24 Op. O.L.C.\n261, 274 (2000) (quoting Rainbow Navigation, Inc. v. Dep\xe2\x80\x99t of the Navy,\n783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.)); see also, e.g., Presidential Certification Under the Mexican Debt Disclosure Act, 20 Op.\nO.L.C. at 264 (finding that constitutional avoidance required a particular\nconstruction of a statute \xe2\x80\x9cbecause any other reading would fail to preserve\nthe President\xe2\x80\x99s constitutional authority and responsibility to preserve the\nabsolute confidentiality of documents the disclosure of which would be\ncontrary to the public interest\xe2\x80\x9d); Prosecution for Contempt of Congress,\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n8 Op. O.L.C. at 139\xe2\x80\x9341 (concluding, in light of the Executive\xe2\x80\x99s sole\nauthority over law enforcement, that \xe2\x80\x9cthe constitutionally mandated\nseparation of powers requires the [criminal-contempt-of-Congress] statute\nto be interpreted so as not to apply to Presidential assertions of executive\nprivilege\xe2\x80\x9d). Accordingly, principles of constitutional avoidance require\ninterpreting the Act to authorize the President to postpone the disclosure\nof the records at issue on a temporary basis.\nIII.\nFor the reasons set forth above, we conclude that section 5(g)(2)(D)\nof the Act authorizes the President to issue a temporary certification\npostponing the full disclosure of certain undisclosed records in the JFK\nCollection to allow for further review before they are fully released to the\npublic.\nCURTIS E. GANNON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n18\n\n\x0c'


b'Transportation of Federal Prisoners to State Courts\nPursuant to Writs of Habeas Corpus\nT h e A tto rn e y G en eral needs no specific s ta tu to ry a u th o riz a tio n in o rd e r to su rre n d e r\nc u sto d y o f a federal p riso n er to sta te au th o ritie s for tra n sp o rta tio n to a sta te c o u rt\np u rsu an t to a w rit o f h abeas co rp u s, an d no federal sta tu te p ro h ib its it.\nS u rre n d e rin g a fed eral p riso n er to th e te m p o ra ry physical c u sto d y an d c o n tro l o f state\nofficers d o es not resu lt in a loss o f federal ju ris d ic tio n o v e r the prisoner.\nE scap e o f a federal p riso n er tem p o rarily in th e c u sto d y o f sta te a u th o ritie s p ursuant to th e\nd irectio n o f th e A tto rn e y G e n e ra l w o u ld v io late the federal escap e sta tu te , 18 U .S.C .\n\xc2\xa7751.\n\nJuly 25, 1980\nM EM ORANDUM OPINION FOR\nT H E DIRECTOR, BUREAU O F PRISONS\nThis responds to your request for our opinion whether federal prison\xc2\xad\ners may be released to the physical custody of state law enforcement\nofficers for transportation to a state court pursuant to the issuance of a\nwrit of habeas corpus ad testificandum or ad prosequendum . 1 You also\nhave requested our opinion whether escape by a prisoner thus released\ncould be prosecuted as escape from federal custody under 18 U.S.C.\n\xc2\xa7751 (Supp. I 1977).\nThe United States Marshals Service (USMS) concludes that the\nBureau of Prisons (BOP) may relinquish custody temporarily to state\nofficials on state court writs without waiving federal jurisdiction or\nviolating federal law. The USMS further concludes that a federal pris\xc2\xad\noner who escapes from such temporary state custody has violated 18\nU.S.C. \xc2\xa7 751. In your view, a federal prisoner may not be released from\nthe physical custody of federal agents without specific statutory au\xc2\xad\nthorization, because federal custody must remain unbroken. You also\nsuggest that if a federal prisoner who is released to state officials\nescapes, he could not be prosecuted under the federal escape statute.\nFor reasons stated more fully below, we conclude that federal juris\xc2\xad\ndiction over a prisoner committed to the custody of the Attorney\nGeneral is not waived or otherwise lost if physical custody is surren\xc2\xad\n1\nY our question, and accordingly, this response, are limited to situations to w hich the Interstate\nA greem ent on D etainers, 18 U.S.C. A ppendix, does not apply either because the requesting state is not\na party to the A greem ent o r because the request for production is pursuant to a w rit o f habeas corpus\nad testificandum, and thus not w ithin the scope o f the A greem ent.\n\n719\n\n\x0cdered temporarily to state officials for the purpose of producing the\nprisoner in a state court pursuant to the issuance of a writ of habeas\ncorpus ad testificandum or ad prosequendum. We conclude that specific\nstatutory authorization is not required for such a temporary transfer of\ncustody, and we have found no statute which expressly or impliedly\nprohibits it. We further conclude that escape by a federal prisoner\nwhile in the temporary custody of state officials would violate the\nfederal escape statute.\nI.\n\nIn 1922, the Supreme Court settled the question whether a federal\nprisoner could be taken on a writ of habeas corpus to a state court and\nthere prosecuted on state charges. Ponzi v. Fessenden, 258 U.S. 254\n(1922). Ponzi argued, inter alia, that the state court could not try him\nwithout jurisdiction over his person and that, as a prisoner of the\nUnited States, he was \xe2\x80\x9cwithin the dominion and exclusive jurisdiction\xe2\x80\x9d\nof the United States. Id. at 258. The Court rejected this argument,\ndescribing it as \xe2\x80\x9ca refinement which if entertained would merely ob\xc2\xad\nstruct justice,\xe2\x80\x9d and stated:\nThe trial court is given all the jurisdiction needed to try\nand hear him by the consent of the United States, which\nonly insists on his being kept safely from escape or from\ndanger under the eye and control of its officer. This\narrangement of comity between the two governments\nworks in no way to the prejudice of the prisoner or of\neither sovereignty.\nId. at 265-66. The Court emphasized that our scheme of government,\n\nwith the federal government and the governments of the several states\neach having their own system of courts, requires \xe2\x80\x9cnot only definite\nrules fixing the powers of the courts in cases of jurisdiction over the\nsame persons and things . . . but also a spirit of reciprocal comity and\nmutual assistance to promote due and orderly procedure.\xe2\x80\x9d Id. at 259.\nPhysical custody of the federal prisoner was not an issue in Ponzi,\nhowever. A federal agent at all times had custody, and the Court, while\nnot expressly relying on this fact as essential to the holding, did note it.\nFollowing the lead of Ponzi, federal courts consistently have ruled\nthat the federal government does not lose jurisdiction over a federal\nprisoner if it, as a matter of comity, arranges to produce a prisoner for\nprosecution in state court or for service of a state sentence. See, e.g.,\nChunn v. Clark, 451 F.2d 1005, 1006 (5th Cir. 1971); Truesdell v. United\nStates, 400 F.2d 859, 860 (8th Cir. 1968); Murray v. United States, 334\nF.2d 616, 617 (9th Cir. 1964); Lovell v. Arnold, 391 F. Supp. 1047, 1048\n(M.D. Pa. 1975); United States ex rel. Williams v. Fitzpatrick, 299 F.\nSupp. 260, 261 (S.D.N.Y. 1969).\n720\n\n\x0cAs noted in both your opinion request and the USMS memorandum,\nthe past practice consistently has been to transport federal prisoners to\nstate courts in the custody of a federal marshal and to require the states\nto reimburse the USMS for this expense. Accordingly, the question\npresented here, which is one of physical custody, has not been ad\xc2\xad\ndressed directly by the courts. The cases, such as those cited above,\nwhich have considered related questions, however, have inferred that\ntemporary transfers of physical custody also are matters of comity to be\nworked out between federal and state authorities.\nIn Allen v. Hunter, 65 F. Supp. 365 (D. Kan. 1946), for example, the\ncourt rejected the petitioner\xe2\x80\x99s claim that the federal government lost all\njurisdiction over him when, after convicting and sentencing him, it\npermitted him to be returned to the Indiana State Prison. Quoting from\nthe Tenth Circuit in Wall v. Hudspeth, 108 F.2d 865, 866 (10th Cir.\n1940), the court held:\nWhen the court of one sovereign takes a person into its\ncustody on a criminal charge he remains in the jurisdic\xc2\xad\ntion of that sovereign until it has been exhausted, to the\nexclusion of the courts of the other sovereign. That rule\nrests upon principles of comity, and it exists between\nfederal and state courts. [Cites omitted.] But either the\nfederal or a state government may voluntarily surrender\nits prisoner to the other without the consent of the pris\xc2\xad\noner, and in such circumstances the question of jurisdic\xc2\xad\ntion and custody is purely one of comity between the two\nsovereigns, not a personal right of the prisoner which he\ncan assert in a proceeding of this kind.\nAllen v. Hunter, 65 F. Supp. at 367-68 (emphasis added). See also Young\nv. Harris, 229 F. Supp. 922, 924 (W.D. Mo. 1964). The Fifth Circuit in\nChunn v. Clark, supra, believed it \xe2\x80\x9cwell-established\xe2\x80\x9d that a prisoner has\n\nno standing to contest an agreement between two sovereigns, and thus\nruled that federal authorities did not lose jurisdiction over Chunn by\ncomplying with an Alabama writ. 451 F.2d at 1006.2 Similarly, in Potter\nv. Ciccone, 316 F. Supp. 703, 705 (W.D. Mo. 1970), the court stated the\n\xe2\x80\x9cwell-established\xe2\x80\x9d rule that the federal government does not lose juris\xc2\xad\ndiction of a prisoner because it permits a state \xe2\x80\x9cto take the prisoner into\nits custody . . .\xe2\x80\x9d (Emphasis added.) The court continued: \xe2\x80\x9cThus, while\nthe temporary custody of the other sovereign may postpone the rights\n*\nM any o f these cases have arisen on w rits o f habeas corpus filed by prisoners seeking either a\nrelease from custody o r freedom from prosecution. T h e courts have held that such prisoners have no\nstanding to contest an agreem ent betw een tw o sovereigns concerning the tem porary exchange o f\ncustody o f the prisoners on w rits o f habeas corpus ad prosequendum o r their agreem ent as to the order\no f prosecution o r execution o f sentence. See, e.g., Chunn v. Clark, 451 F.2d 1005 (Sth C ir. 1971);\nDerengowski v. U.S. Marshal, 377 F.2d 223 (Sth Cir. 1967); Lovell v. Arnold, 391 F. Supp. 1047 (M .D.\nPa. 1975).\n\n721\n\n\x0cof the first sovereign, it cannot defeat them and jurisdiction is not lost.\xe2\x80\x9d\nId. at 705-06.3\n\nThese issues also have arisen when state authorities have released\nstate prisoners to the custody of federal authorities. Although in many\nof these cases, actual physical custody was transferred to federal au\xc2\xad\nthorities, the courts refused to find a loss of state jurisdiction. In\nBullock v. Mississippi, 404 F.2d 75 (Sth Cir. 1968), the prisoner-appellant\nsought release from a state detainer on the ground that by earlier\ntransferring him to federal custody, the state had waived its right to\njurisdiction over him. The court ruled that \xe2\x80\x9c[t]he State, by giving\ntemporary custody to the federal authorities does so without a com\xc2\xad\nplete surrender of its prior jurisdiction over him.\xe2\x80\x9d Id. at 76. See also\nDerengowski v. U.S. Marshal, 377 F.2d 223 (8th Cir. 1967).\nThese same rules apply when a prisoner is produced pursuant to a\nwrit of habeas corpus ad testificandum. In In re Liberatore, 574 F.2d 78,\n89 (2d Cir. 1978), the court held that: \xe2\x80\x9cany \xe2\x80\x98loan\xe2\x80\x99 to the second sover\xc2\xad\neignty in compliance with such a writ or any other temporary transfer\nof custody from the sovereignty having the prior jurisdiction cannot\naffect in any way whatever any final judgment of conviction already\nentered against the prisoner there or affect the running of the sentence\nimposed pursuant to that judgment.\xe2\x80\x9d And, recently, the Ninth Circuit\nimplemented this rule by declaring that a district judge\xe2\x80\x99s attempt to\ntransfer a prisoner (who was serving concurrent federal and state sen\xc2\xad\ntences in state prison) from state to federal custody violated fundamen\xc2\xad\ntal principles of comity and separation of powers. United States v.\nWarren, 610 F.2d 680 (9th Cir. 1980). The court wrote:\nDetermination of priority o f custody and service of sen\xc2\xad\ntence between state and federal sovereigns is a matter o f\ncomity to be resolved by the executive branches of the\ntwo sovereigns . . . [T]he sovereign with priority of juris\xc2\xad\ndiction, here, the United States, may elect under the doc\xc2\xad\ntrine of comity to relinquish it to another sovereign. This\ndiscretionary election is an executive, and not a judicial\nfunction. [Cites omitted.]\nIn the federal system, the \xe2\x80\x9cpower and discretion\xe2\x80\x9d to\npractice comity is vested in the Attorney General.\nId. at 684-85 (emphasis added).\n\nThe cases cited above establish that surrendering a prisoner to an\xc2\xad\nother jurisdiction for purposes of prosecution, testimony, or service of\nsentence does not affect a loss of jurisdiction by the surrendering\n3\nLoss o f jurisdiction also has been asserted w here a state took into custody a federal defendant\nw h o was released from federal custody pending appeal. In Jones v. Taylor, 327 F.2d 493, 493-94 (10th\nCir. 1964), the c o u rt rejected this contention because \xe2\x80\x9c [w]hen a person is convicted o f independent\ncrim es in state and federal courts, the question o f jurisdiction and custody is one o f com ity betw een the\ntw o governm ents and not a personal right o f the prisoner" (em phasis added).\n\n722\n\n\x0cauthority. Although most of these cases did not address directly the\nquestion you raise other than in dicta, we believe that the policies\nunderlying these cases yield the same result here. In our opinion,\ntherefore, Federal jurisdiction is not lost if physical custody and control\nof Federal prisoners is transferred temporarily to State officers.4\nII.\nIn addition to raising jurisdictional questions, you have suggested that\ncustody of a federal prisoner may not be surrendered to state authori\xc2\xad\nties absent congressional authorization. Again relying on Ponzi v.\nFessenden, supra, we believe that, as a general rule, specific statutory\nauthorization is not required. In Ponzi, the Court wrote: \xe2\x80\x9cThere is no\nexpress authority authorizing the transfer of a federal prisoner to a state\ncourt for [trial]. Yet we have no doubt that it exists and is to be\nexercised with the consent of the Attorney General.\xe2\x80\x9d 258 U.S. at 261 \xe2\x80\x94\n62. The Court recited the many duties of the Attorney General with\nrespect to prisons and prisoners, and concluded:\nThis recital of the duties of the Attorney General leaves\nno doubt that one of the interests of the United States\nwhich he has authority and discretion to attend to,\nthrough one of his subordinates, in a state court, under\n\xc2\xa7367, Rev. Stats., is that which relates to the safety and\ncustody of United States prisoners in confinement under\nsentence of federal courts. In such matters he represents the\nUnited States and may on its part practice the comity which\nthe harmonious and effective operation o f both systems o f\ncourts requires, provided it does not prevent enforcement o f\nthe sentence o f the federal courts or endanger the prisoner.\nLogan v. United States, 144 U.S. 263.\nId. at 263 (emphasis added).5\n\nAlthough we believe that specific statutory authorization is not re\xc2\xad\nquired, it is necessary to review relevant statutes to determine whether\n4 In one sense, federal jurisdiction may be lost if physical custody is relinquished to state authorities.\nIf a state violates doctrines o f com ity and refuses to return the prisoner to federal authorities, the\nfederal governm ent has no immediate jurisdiction o v er the prisoner w ithout actual physical custody of\nthe body. Its jurisdiction o v er the prisoner is limited to its pow er to enforce the federal sentence once\nthe prisoner is released from slate custody.\nUnless an enforceable agreem ent is struck betw een federal and state authorities, the federal go v ern \xc2\xad\nment would be w ithout an adequate immediate rem edy if the state refuses to return the prisoner. In\nthat event, absent a violation o f the C onstitution, law, o r treaties o f the U nited States (28 U.S.C.\n\xc2\xa72254), the federal governm ent w ould have to aw ait the release o f the prisoner by the state. See\nStrand v. Schmittroth, 251 F.2d 590, 604-06 (9th Cir. 1957). T he A ssociate D eputy A ttorney G eneral\nhas indicated that this is not a serious practical problem because, if it happened once, no additional\nprisoners w ould be released to that state.\n5 See also United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980). T h e legislation creating the\nD epartm ent o f Justice authorized the A tto rn ey G eneral to send the Solicitor G eneral or any officer o f\nthe D epartm ent o f Justice \xe2\x80\x9c to any State o r district in the U nited States to attend to the interests o f the\nUnited States in any suit pending . . . o r to attend to any o th er interest o f the U nited States." A ct of\nJune 22, 1870, \xc2\xa75, 16 Stat. 162, 163. T h e current version o f this section is 28 U.S.C. \xc2\xa7517.\n\n723\n\n\x0cCongress has prohibited, either expressly or impliedly, exercise of\ncomity in this area by the Attorney General. We find no express\nstatutory prohibition on temporary transfers of custody for the purpose\nof transporting federal prisoners to state court. The only statute we find\nwhich might be read to prohibit impliedly such a transfer is 18 U.S.C.\n\xc2\xa74008.6\nSection 4008 provides: \xe2\x80\x9cPrisoners shall be transported by agents\ndesignated by the Attorney General or his authorized representative\xe2\x80\x9d\n(emphasis added). The question raised by this section is whether it\nrequires that in all cases a federal prisoner must be transported by a\nfederal agent. We believe it should not be interpreted so restrictively.\nIn our opinion, this statute was not intended to cover transportation\nsolely for a state\xe2\x80\x99s convenience and upon a state\xe2\x80\x99s request.\nSection 4008 was designed primarily to authorize payment of trans\xc2\xad\nportation expenses.7 After stating that prisoners shall be transported by\ndesignated agents, the section provides: \xe2\x80\x9cThe reasonable expense of\ntransportation, necessary subsistence, and hire and transportation of\nguards and agents shall be paid by the Attorney General from such\nappropriation for the Department of Justice as he shall direct.\xe2\x80\x9d 8 Simi\xc2\xad\nlar language first appeared in an 1864 Act, which provided:\nBe it enacted . . . [t]hat all persons who have been, or\nwho may hereafter be, convicted of crime by any court of\nthe United States\xe2\x80\x94not military\xe2\x80\x94the punishment whereof\nshall be imprisonment, in a district or territory where, at\nthe time of such conviction, there may be no penitentiary\nor other prison suitable for the confinement of convicts of\n6 Ac first glance, 18 U.S.C. \xc2\xa7 4085(a) seems to relate to this question. This section provides:\nW henever any federal prisoner has been indicted, inform ed against, o r convicted o f a\nfelony in a court o f record o f any State o r the D istrict o f Colum bia, the A ttorney\nG eneral shall, if he finds it in the public interest to d o so, upon the request o f the\nG o v e rn o r o r the executive authority thereof, and upon the presentation o f a certified\nco p y o f such indictm ent, inform ation o r judgm ent o f conviction, cause such person,\nprior to his release, to be transferred to a penal o r correctional institution w ithin such\nState o r D istrict.\n\xe2\x80\xa2\n\n*\n\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\n*\n\nT h e expense o f personnel and transportation incurred shall be chargeable to the\nappropriation for the \xe2\x80\x9c Support o f U nited States prisoners."\nThis section, how ever, does not address the issue o f tem porary transfer o f custody. It is distinguishable\nfrom the situations under review because it contem plates transfer im m ediately prior to expiration of\nthe federal sentence so that upon release the prisoner is subject to the state authority. See S. Rep. No.\n1410, 76th C ong., 3d Sess. 1 (1940); H .R. Rep. No. 1885, 76th C ong., 1st Sess. 1-2 (1940).\n7 If a section heading is enacted as part o f an act o r as part o f a code, one may look to the heading\nas an aid to the legislative intent. Know/ton v. Moore, 178 U.S. 41.77 (1849); Clawans v. Sheetz, 92 F.2d\n517, 521 (D .C . Cir. 1937); Sutherland, Statutes and Statutory C onstruction \xc2\xa747.14 (1973 & Supp.\n1978). Section 4008 is headed \xe2\x80\x9cT ransportation expenses,\xe2\x80\x9d suggesting that the prim ary purpose o f the\nstatute was to authorize paym ent for such expenses.\n8 T he rem ainder o f the section provides:\nU pon conviction by a consular co u rt o r court martial the prisoner shall be transported\nfrom the court to the place o f confinem ent by agents o f the D epartm ent o f State, the\nA rm y, N avy, o r A ir Force, as the case may be, the expense to be paid out o f the\nT reasu ry o f the U nited States in the m anner provided by law.\n\n724\n\n\x0cthe United States, and available therefor, shall be confined\n. . . in some suitable prison in a convenient state or terri\xc2\xad\ntory to be designated by the Secretary of Interior, and\nshall be transported and delivered to the warden or keeper o f\nthe prison by the m arshal. . . the reasonable actual expense\no f transportation, necessary subsistence and hire, and trans\xc2\xad\nportation o f guards and the marshal . . . to be paid by the\nSecretary o f the Interior, out o f the judiciary fund. . . .\n\nAct of May 12, 1864, \xc2\xa7 1, 13 Stat. .74, 74-75 (emphasis added).9 This\nsection further provided that if, in the opinion of the Secretary, the\nexpense of transportation would exceed the cost of maintaining a pris\xc2\xad\noner in a jail in the state of his conviction, then it would be lawful so to\nconfine him. This measure passed the Congress with no recorded floor\ndebate on its provisions. 64 Cong. Globe, 38th Cong., 1st Sess. 1684\n(1864); 65 Cong. Globe 38th Cong., 1st Sess. 2207 (1864). The text of\nthe Act suggests that its purpose was to resolve the question where\nfederal prisoners should be incarcerated if there was no suitable peni\xc2\xad\ntentiary in the state or territory of conviction. The transportation provi\xc2\xad\nsion, authorizing transportation and delivery to a suitable prison, was\npart of the resolution of this question.10\nIn 1876, responsibility for designating places of confinement was\ntransferred to the Attorney General. Act of July 12, 1876, 19 Stat. 8889. This Act also amended the Act of May 12, 1864, supra, by allowing\nthe Attorney General to change the place of imprisonment as neces\xc2\xad\nsary. The transportation provisions in the Act were not substantively\naltered, however. They provided that prisoners \xe2\x80\x9cshall be transported\nand delivered to the warden . . . by the marshal . . . the reasonable\nactual expense of transportation, necessary subsistence, and hire and\ntransportation of guards and the marshal . . . to be paid by the A ttor\xc2\xad\nney General, out of the judiciary fund.\xe2\x80\x9d Id. An 1891 statute authorizing\nthe establishment of three United States prisons also contained a section\nproviding that transportation of all United States prisoners and their\ndelivery to United States prisons shall be by the marshal and allowed\nthe same expenses as did the previous statutes.11 The language was\n9 Prior to that time, statutes allow ed costs to U nited States M arshals for \xe2\x80\x9ctransporting crim inals."\n\nSee A ct o f Feb. 26, 1853, 10 Stat. 165.\n10 A similar statute, providing for the confinem ent o f juvenile offenders, and their transportation to\nthe place o f confinem ent by the marshal, w as passed in 1865. A ct o f M arch 3, 1865, \xc2\xa7 1, 13 Stat. 538.\nT his A ct provided:\nBe it enacted . . . [t]hat juvenile offenders . . . shall be confined . . . in som e house of\nrefuge to be designated by the Secretary o f the Interior, and shall be transported and\ndelivered to the w arden o r keeper o f such house o f refuge by the marshal . . . and the\nreasonable actual expense o f the transportation, necessary subsistence, and hire, and\ntransportation o f assistants and the marshal o r w arden, only shall be paid by the\nS ecretary o f the Interior, out o f the judiciary fund.\n11 A ct o f M arch 3, 1891, \xc2\xa7 5, 26 Stat. 839, 839-40. Section 5 provided:\nT hat the transportation o f all U nited States prisoners convicted o f crim es against the\nlaws o f the U nited States in any State, D istrict o r T errito ry , and sentenced to term s o f\nC ontinued\n\n725\n\n\x0cagain amended in 1901, but, again, the substance of the transportation\nprovisions was not changed. Act of March 3, 1901, 31 Stat. 1450-51.\nThe legislative history of these acts is brief and the transportation\nprovisions are not specifically addressed. 4 Cong. Rec. 2339, 4268\n(1876); 22 Cong. Rec. 2925, 3563-64 (1891).\nIn 1930, Congress created the Bureau of Prisons and revised the laws\nrelating to federal prisoners. The law regarding transportation of pris\xc2\xad\noners was amended to read substantially as it does today. As enacted at\nthat time, it provided:\nAll transportation of prisoners shall be by such agent or\nagents of the Department of Justice as the Attorney Gen\xc2\xad\neral or his authorized representative shall from time to\ntime nominate, the reasonable expense of transportation,\nnecessary subsistence, and hire and transportation of\nguards and agent or agents to be paid by the Attorney\nGeneral from any appropriation to the Department of\nJustice as he may direct. . . .\nAct of May 14, 1930, Pub. L. No. 71-218, \xc2\xa78, 46 Stat. 325, 328. The\nmajor change was that \xe2\x80\x9call transportation\xe2\x80\x9d shall be by \xe2\x80\x9can agent or\nagents of the Department of Justice,\xe2\x80\x9d rather than that transportation\nand delivery of prisoners to the place of confinement shall be by the\nmarshal. The legislative history of this 1930 modification does not\nexplain why these changes were made. The committee reports do\nindicate that the act resulted from concern about the lack of proper\ncare and supervision of the increasing number of federal prisoners. H.R.\nRep. No. 106, 71st Cong., 2d Sess. 1 (1930). The few federal penitentia\xc2\xad\nries were congested and \xe2\x80\x9cgreat masses\xe2\x80\x9d of federal prisoners were held\nin local jails and workhouses, some of which were considered \xe2\x80\x9cunsani\xc2\xad\ntary and generally deplorable.\xe2\x80\x9d S. Rep. No. 533, 71st Cong., 2d Sess. 1,\n2 (1930). Accordingly, these reports and the floor debates concentrate\non a program to provide adequate prison facilities and a proper organi\xc2\xad\nzation to administer the federal penal system. 72 Cong. Rec. 2157-58\n(1930). The only reference to the bill\xe2\x80\x99s transportation section in either\nreport is a reference found in an attached Attorney General\xe2\x80\x99s analysis\nof the bill. That analysis stated: \xe2\x80\x9cSection 8 of the proposed bill clarifies\nhow prisoners may be transported and the fund which is chargeable.\xe2\x80\x9d\nH.R. Rep. No. 106, supra, at 3; S. Rep. No. 533, supra, at 3. There is no\nindication, however, that Congress intended that section to extend\nbeyond its prior coverage of transportation and delivery to a place of\nim prisonm ent in a penitentiary, and their delivery to the superintendent, w arden, or\nkeeper o f such U nited States prisons, shall be by the marshal o f the D istrict or\nT e rrito ry w here such conviction m ay o ccu r, after the erection and com pletion o f said\nprisons. T h at the actual expenses o f such marshal, including transportation and subsist\xc2\xad\nence, hire, transportation and subsistence o f guards, and the transportation and subsist\xc2\xad\nence o f the convict o r convicts, be paid, on the approval o f the A ttorney G enera) out\no f the ju d iciary fund.\n\n726\n\n\x0cconfinement or that it intended to restrict the Attorney General\xe2\x80\x99s broad\ndiscretionary authority as to the care and custody of federal prisoners.\nIn light of this legislative history, it is not necessary to assume that\nby providing that the expenses of all transportation were to be paid by\nthe Attorney General, the Congress intended that transportation re\xc2\xad\nquested by a state for purposes unrelated to the federal conviction or\nincarceration be paid by the federal government. Nor is it necessary to\ninterpret the statement that prisoners \xe2\x80\x9cshall be transported\xe2\x80\x9d by agents\ndesignated by the Attorney General as precluding the Attorney Gen\xc2\xad\neral from promoting comity among sovereigns by exercising his author\xc2\xad\nity to approve temporary transfers of custody. Rather, we believe it is\nmore reasonable to conclude that Congress intended \xc2\xa7 4008 to provide\nfor transportation for federal purposes, such as transportation from the\ncourt of conviction to the place of confinement as did the previous\nstatutes on which that section is based. The \xe2\x80\x9cclarification\xe2\x80\x9d mentioned in\nthe committee reports most likely referred to the authorization for any\nagent designated by the Attorney General to transport prisoners rather\nthan the marshal exclusively.\nIn the 1948 codification of the United States Criminal Code, the\nsection was revised to its present form .12 Act of June 25, 1948, Pub. L.\nNo. 80-772, \xc2\xa7 4008, 62 Stat. 683, 849. It was explained in a committee\nreport that the revisions were \xe2\x80\x9c [m]inor changes in phraseology,\xe2\x80\x9d not\nsubstantive changes. H.R. Rep. No. 304, 80th Cong., 1st Sess. A179\n(1947). See Muniz v. Hoffman, 422 U.S. 454, 468-70 (1975). We con\xc2\xad\nclude, therefore, that \xc2\xa7 4008 does not prohibit the Attorney General\nfrom making arrangements for state law enforcement officers to assume\ntemporary custody of federal prisoners for the purpose of production in\na state court, pursuant to a writ of habeas corpus. Nor have we found\nany other federal statute which prohibits such action.\nWe emphasize that this memorandum addresses only those circum\xc2\xad\nstances in which the Interstate Agreement on Detainers (IAD) is not\napplicable.13 If the state is a party to the IAD, the procedures estab\xc2\xad\nlished under it may be exclusive. See United States ex rel. Escola v.\nGroomes, 520 F.2d 830, 837-38 (3d Cir. 1975). Even if the state in\xc2\xad\nvolved is not a party to the IAD, that agreement should be used as a\nguide for all temporary transfers of custody, for state prosecution or\ntestimony. The party states of the IAD, which now include the federal\ngovernment and approximately 42 states, find that proper proceedings\non charges emanating from other jurisdictions cannot be had in the\nabsence of cooperative procedures, and declare that the purpose of the\n12 In 1949, the third paragraph o f the section, dealing w ith prisoners convicted by a consular court\no r court martial, was am ended. A ct o f M ay 24, 1949, Pub. L. No. 81-72, \xc2\xa7 4121, 63 Stat. 89, 98. These\nam endm ents d o not affect the first and second paragraphs o f the section w ith w hich w e are concerned\nhere.\n13 See note 1, supra.\n\nin\n\n\x0cIA D is to provide such procedures.14 The Department of Justice initi\xc2\xad\nated and supported congressional adoption of the IAD because existing\nprocedures were inadequate. See H.R. Rep. No. 1018, 91st Cong., 2d\nSess. 3 (1970).\nTo avoid the damaging effects of detainers on prisoners, the IAD\nguarantees certain procedural rights to prisoners. For example, prison\nauthorities are required to inform prisoners of all charges on the basis\nof which detainers have been lodged. Prisoners may then request a trial\non the charges and if such trial does not commence within 180 days,\nthe charges must be dismissed with prejudice. A non-IAD agreement to\ntransfer custody to a state for purposes of prosecution should include\nall legally available safeguards of both the prisoner\xe2\x80\x99s and the govern\xc2\xad\nment\xe2\x80\x99s interests. A state, by refusing to become party to the IAD,\nshould not be able to avoid entirely the procedural requirements of it\nwhile securing its benefits.15\nIII.\n\nAs you suggested in your request, additional legal questions may\narise from such temporary transfers of custody. You requested that we\naddress one such problem\xe2\x80\x94escape from custody. The federal escape\nstatute, 18 U.S.C. \xc2\xa7 751(a) (Supp. I 1977) provides:\nW hoever escapes or attempts to escape from the cus\xc2\xad\ntody of the Attorney General or his authorized represent\xc2\xad\native, or from any institution or facility in which he is\nconfined by direction of the Attorney General, or from\nany custody under or by virtue of any process issued\nunder the laws of the United States by any court, judge,\nor commissioner, or from the custody of an officer or\nemployee of the United States pursuant to lawful arrest,\nshall [be fined or imprisoned, or both].\nThe question raised here is whether escape from the temporary custody\nof the state law enforcement officers would violate this statute.\nThis section was first enacted in 1930, when the Bureau of Prisons\nwas established. It read:\n14\nIA D , A rt. I, 18 U .S.C. A ppendix. W hen (he IA D was enacted by C ongress, 28 states w ere\nparties to it. C ongress expected that the rem aining 22 states w ould becom e partners as soon as their\nlegislatures next met. 116 C ong. Rec. 38,841 (1970) (rem arks o f Sen. Hruska).\n13\nW e d o not believe that C ongress intended the IA D to be the exclusive means o f transfer o f\ncustody in all cases, thereby precluding transfer if the requesting state is not a party to it. Such an\ninterpretation is not supported by the language o f the A greem ent o r its legislative history and w ould\nexacerbate, for non-party states, the problem s the A greem ent is directed tow ard am eliorating. It w ould\npreclude any transfers to non-party states for purposes o f prosecution, for exam ple, thus leaving\nprisoners w ith no w ay o f clearing detainers filed against them and precluding prosecutors from\nbringing defendants to trial w ithin a reasonable time after charges are filed. This w ould result in\ndismissal o f charges not tim ely prosecuted. See Dickey v. Florida, 398 U.S. 30 (1970).\n\n728\n\n\x0cAny person properly committed to the custody of the\nAttorney General or his authorized representative or who\nis confined in any penal or correctional institution, pursu\xc2\xad\nant to the direction of the Attorney General, who escapes\nor attempts to escape therefrom shall be guilty of an\noffense. . . .\nAct of May 14, 1930, Pub. L. No. 71-218, \xc2\xa79, 46 Stat. 327. In the\nAttorney General\xe2\x80\x99s analysis of this Act prior to its enactment, he\nexplained that there was \xe2\x80\x9cno statutory penalty for escaping from the\ncustody of a Federal prison or Federal officers.\xe2\x80\x9d H.R. Rep. No. 106,\nsupra at 3; S. Rep. No. 533, supra at 3. Since 1930, the section has been\nmodified to clarify ambiguities and to broaden its scope. For example,\nin 1935, Congress added the phrase \xe2\x80\x9c[any person] who is in custody by\nvirtue of any process issued under the laws of the United States by any\ncourt, judge, or commissioner.\xe2\x80\x9d Act of Aug. 3, 1935, Pub. L. No. 74233, 49 Stat. 513, 513-14. In 1948, several amendments were made to\nremove ambiguities and to improve phraseology. Act of June 25, 1948,\nPub. L. No. 80-772, \xc2\xa7 751, 62 Stat. 683, 734. See H.R. Rep. No. 304,\n80th Cong., 1st Sess. A67 (1947).\nThe term \xe2\x80\x9ccustody,\xe2\x80\x9d as it is used in this statute, has been defined\nvery broadly. Although none of the cases deal with the specific situa\xc2\xad\ntion presented here, they are sufficiently analogous to support the\nconclusion that such escape would violate \xc2\xa7751. For example, in\nUnited States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977), the court con\xc2\xad\ncluded that a prisoner serving concurrent state and federal sentences in\na state penitentiary who failed to return after he was released on a\n\xe2\x80\x9csocial\xe2\x80\x9d pass violated \xc2\xa7751. The court reasoned that 18 U.S.C.\n\xc2\xa7 4082(b) provides that a federal sentence may be served in an institu\xc2\xad\ntion not maintained by the federal government and that \xe2\x80\x9can escape\nfrom a State institution is an escape from the custody of the Attorney\nGeneral if the prisoner has been confined there under the authority of\nthe Attorney General.\xe2\x80\x9d Id. at 1073. The Ninth Circuit in an earlier case\nidentified the three elements which must be proved to sustain a convic\xc2\xad\ntion under \xc2\xa7 751: \xe2\x80\x9c(a) that there was a prior federal conviction; (b) that\nthere was an escape; and (c) that such escape was from a confinement\narising by virtue of the conviction.\xe2\x80\x9d Hardwick v. United States, 296\nF.2d 24, 26 (9th Cir. 1961). The court found no basis to the defendant\xe2\x80\x99s\nargument that the prisoner be in the actual physical custody of a federal\nofficial. Similarly, in McCullough v. United States, 369 F.2d 548, 550\n(8th Cir. 1966), the court held that \xc2\xa7 751 punishes \xe2\x80\x9cescape from custody\nor from any facility in which the prisoner is confined by direction of\nthe Attorney General.\xe2\x80\x9d If the Attorney General, through the BOP,\nenters into an agreement with state officials in which the state officials\nagree to keep the prisoner safely confined, the prisoner would be\n729\n\n\x0cconfined by virtue of the federal conviction and by direction of the\nAttorney General.\nIn United States v. Bailey, 585 F.2d 1087 (D.C. Cir. 1978), the court\nupheld a conviction under \xc2\xa7 751 of a federal prisoner who escaped from\ncustody after being transferred to a local jail pursuant to a writ of\nhabeas corpus ad testificandum. The court ruled:\n[We decide] that a prisoner who has been committed to\nthe custody of the Attorney General by virtue of a con\xc2\xad\nviction is still in the custody of the Attorney General by\nvirtue of that conviction for the purposes of Section\n751(a) when he is transferred pursuant to a writ of habeas\ncorpus ad testificandum and confined in an institution des\xc2\xad\nignated by the Attorney General for the custody of fed\xc2\xad\neral prisoners. Policy considerations support at least this\nbroad an interpretation of Section 751. The jurisdiction\nfrom which a prisoner is brought pursuant to a writ of\nhabeas corpus has a significant interest in preventing the\nprisoner\xe2\x80\x99s escape from custody. This interest has been\nrecognized in an analogous situation by the drafters of the\nInterstate Agreement on Detainers (IAD), who provided\nthat when a prisoner serving a sentence in one jurisdiction\nis brought to another jurisdiction for trial on another\noffense and escapes while in the receiving jurisdiction, he\nmay be prosecuted under the escape statute of the sending\njurisdiction.\n585 F.2d at 1104 (footnote omitted). We conclude, therefore, that\nescape from state law enforcement officers by a prisoner who is in\ncustody pursuant to a federal conviction and is confined under the\ndirection of the Attorney General violates \xc2\xa7 751.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n730\n\n\x0c'