b'VA\xe2\x80\x99s Authority to Fill Certain Prescriptions\nWritten by Non-VA Physicians\nThe Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for\nveterans placed on VA waiting lists.\n\nJuly 3, 2003\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF VETERAN AFFAIRS\nYou have asked us whether the Department of Veterans Affairs (\xe2\x80\x9cVA\xe2\x80\x9d) is\nbarred by statute from generally filling prescriptions written by non-VA physicians for veterans on VA\xe2\x80\x99s lengthy waiting list. For the reasons stated below, we\nconclude that VA is not so barred.\nI.\nYou have advised us that the number of veterans who have requested care from\nthe VA is greatly in excess of the number that VA can care for at the present time.\nAs a result, the number of veterans who have to wait more than six months before\nthey can receive care in a VA facility has recently been above 200,000 and\nremains very high. Some of these veterans have received care from non-VA\nphysicians and then sought to obtain the prescription medication benefits included\nin VA\xe2\x80\x99s uniform benefit package. But in light of legal opinions of VA\xe2\x80\x99s Office of\nGeneral Counsel dating back to 1983, VA has generally declined to fill prescriptions written by non-VA physicians. Instead, VA has required veterans with such\nprescriptions to schedule examinations in the backlogged VA facilities. Such\nexaminations typically involve a months-long wait and impose additional burdens\non the VA system.\nIn 1991, VA\xe2\x80\x99s Office of General Counsel reissued as a \xe2\x80\x9cPrecedent Opinion\xe2\x80\x9d an\nopinion that it had previously issued in 1983. In that opinion, your Office determined that the provision then codified at 38 U.S.C. \xc2\xa7 612(h) (1982)\xe2\x80\x94and now\nrevised and codified at 38 U.S.C. \xc2\xa7 1712(d) (2000)\xe2\x80\x94was \xe2\x80\x9cthe exclusive legal\nauthority for providing a veteran with drugs and medicines prescribed by the\nveteran\xe2\x80\x99s private physician, when the VA has no involvement, fee basis or\notherwise, in the treatment of the veteran.\xe2\x80\x9d Vet. Aff. Op. Gen. Couns. Prec. 41-91\n(Mar. 11, 1991), 1991 VAOPGCPREC LEXIS 1183, at *14 (\xe2\x80\x9c1991 VA Opinion\xe2\x80\x9d). In 2002, your Office considered whether intervening changes in the law\xe2\x80\x94\nparticularly, the Veterans\xe2\x80\x99 Health Care Eligibility Reform Act of 1996, Pub. L.\nNo. 104-262, 110 Stat. 3177 (1996) (\xe2\x80\x9cEligibility Reform Act\xe2\x80\x9d)\xe2\x80\x94altered the conclusion of your 1991 opinion and determined that they did not. Your Office\nreaffirmed its position that \xe2\x80\x9cVA does not have legal authority to furnish veterans\nwith medications prescribed by private physicians when VA has no other in-\n\n126\n\n\x0cVA\xe2\x80\x99s Authority to Fill Certain Prescriptions Written by Non-VA Physicians\n\nvolvement in the care of the veteran.\xe2\x80\x9d Vet. Aff. Op. Gen. Couns. Adv. 19-02\n(2002) (\xe2\x80\x9c2002 VA Opinion\xe2\x80\x9d).\nII.\nTitle 38 confers on the VA Secretary broad authority to determine the services\nprovided to veterans. Paragraphs (1) and (2) of section 1710(a) provide that the\nSecretary \xe2\x80\x9cshall furnish\xe2\x80\x9d to particular classes of veterans those \xe2\x80\x9cmedical services\xe2\x80\x9d\n\xe2\x80\x9cwhich the Secretary determines to be needed.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 1710(a)(1), (2)\n(2000). Paragraph (3) further provides that for any veteran not covered by\nparagraphs (1) and (2), the Secretary \xe2\x80\x9cmay . . . furnish . . . medical services . . .\nwhich the Secretary determines to be needed.\xe2\x80\x9d Id. \xc2\xa7 1710(a)(3). The statutory\ndefinition of \xe2\x80\x9cmedical services\xe2\x80\x9d includes, among other things, \xe2\x80\x9cmedical examination, treatment, and rehabilitative services,\xe2\x80\x9d 38 U.S.C. \xc2\xa7 1701(6) (Supp. I 2002).\nWe believe that, except insofar as otherwise barred, the Secretary\xe2\x80\x99s general\nstatutory authority is plainly broad enough to enable VA to fill prescriptions\nwritten by non-VA physicians for veterans who have been placed on VA\xe2\x80\x99s waiting\nlist for examinations. First, the filling of prescriptions is, or can reasonably be\ndetermined to be, a \xe2\x80\x9cmedical service\xe2\x80\x9d because it constitutes \xe2\x80\x9ctreatment.\xe2\x80\x9d Companion provisions in this same statutory scheme recognize that medications are\n\xe2\x80\x9cfurnished . . . for the treatment of\xe2\x80\x9d disabilities and conditions, 38 U.S.C.\n\xc2\xa7 1722A(a)(1) (2000), and that \xe2\x80\x9csuch drugs and medicines as may be ordered on\nprescription of a duly licensed physician\xe2\x80\x9d are part of the \xe2\x80\x9ctreatment of [an] illness\nor injury,\xe2\x80\x9d id. \xc2\xa7 1712(d). Indeed, VA\xe2\x80\x99s Office of General Counsel has itself stated\nthat \xe2\x80\x9cprovision of drugs and medicines is medical treatment.\xe2\x80\x9d 1991 VA Opinion\nat *6.1 Second, the Secretary has discretion to determine \xe2\x80\x9cto be needed\xe2\x80\x9d the filling\nof prescriptions written by non-VA physicians for those veterans on VA\xe2\x80\x99s waiting\nlist. Such a determination would (in the absence of any other bar) trigger the\nSecretary\xe2\x80\x99s duty under paragraphs (1) and (2) of section 1710(a), and his power\nunder paragraph (3) of that section, to have VA fill the prescriptions. Third, in\nlight of the existing backlog of veterans seeking VA care, a decision by the\nSecretary to authorize VA to fill prescriptions written by non-VA physicians for\nthose veterans on VA\xe2\x80\x99s waiting list would be consistent with the statutory\ndirective that \xe2\x80\x9cthe Secretary shall, to the extent feasible, design, establish and\nmanage health care programs in such a manner as to promote cost-effective\ndelivery of health care services in the most clinically appropriate setting.\xe2\x80\x9d 38\nU.S.C. \xc2\xa7 1706(a) (2000).\nYour Office has suggested several possible reasons why this result might not\nfollow. First, invoking the maxim expressio unius est exclusio alterius, your Of1\n\nNotwithstanding this statement, the 1991 VA Opinion relied on the absence of legislative history\nand the expressio unius maxim discussed below to conclude that provision of drugs and medicines\nordered by private non-VA physicians is not medical treatment.\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nfice has read section 1712(d) as providing \xe2\x80\x9cthe exclusive legal authority for\nproviding a veteran with drugs and medicines prescribed by the veteran\xe2\x80\x99s private\nphysician, when the VA has no involvement, fee basis or otherwise, in the\ntreatment of the veteran.\xe2\x80\x9d 1991 VA Opinion at *6\xe2\x80\x93*7, *14. We do not believe that\nthis is the best reading of section 1712(d). Section 1712(d) provides in part:\nThe Secretary shall furnish to each veteran who is receiving additional compensation or allowance under chapter 11 of this title, or\nincreased pension as a veteran of a period of war, by reason of being\npermanently housebound or in need of regular aid and attendance,\nsuch drugs and medicines as may be ordered on prescription of a duly licensed physician as specific therapy in the treatment of any illness or injury suffered by such veteran.\n38 U.S.C. \xc2\xa7 1712(d). In short, section 1712(d) specifically requires the filling of\nprescriptions written by private physicians for certain classes of veterans. We note,\nhowever, that it does not expressly provide that it sets forth the exclusive circumstances in which the Secretary is required to fill such prescriptions, much less the\nexclusive circumstances in which the Secretary is allowed to fill such prescriptions. Moreover, given the broad authority that section 1710(a) confers on the\nSecretary, we do not think that the expressio unius canon applies here to require\nthat section 1712(d) be read as somehow implicitly limiting that broad authority.2\nSecond, your Office has pointed to legislative history associated with the Eligibility Reform Act\xe2\x80\x94specifically, to a statement in the committee report of the\nHouse bill that was merged with a Senate bill when the Act was passed. In the\ncontext of refuting projections by the Congressional Budget Office (\xe2\x80\x9cCBO\xe2\x80\x9d) that\nprovisions of the bill would result in substantial new demand for VA medical\nservices and benefits, the House report stated: \xe2\x80\x9cIt is critical to note that H.R. 3118,\nlike existing law, would not permit VA simply to serve as a veterans\xe2\x80\x99 \xe2\x80\x98drug store\xe2\x80\x99,\nproviding medications, prosthetic devices, or other medical supplies prescribed by\na private physician who has no affiliation or contractual relationship with the VA.\xe2\x80\x9d\nH.R. Rep. No. 104-690, at 17 (1996). This legislative history might be thought to\nindicate that Congress did not intend section 1710(a) to authorize the Secretary to\nprovide the prescription services at issue.\nWe do not find this legislative history probative of the meaning of section\n1710(a). Insofar as it might be thought to mean that the Secretary may not provide\nthe prescription services at issue, we do not think that it can be squared with the\nexpansive text of section 1710(a). See Circuit City Stores, Inc. v. Adams, 532 U.S.\n2\nThe fact that section 1712(d), unlike section 1710(a), appears to require filling of prescriptions\nwhether or not the Secretary determines the filling of the prescriptions to be necessary further suggests\nthat the obligation imposed under section 1712(d) is not of the same class or type as the obligations and\npowers under section 1710(a). This would provide an additional reason why the expressio unius canon\nwould not apply.\n\n128\n\n\x0cVA\xe2\x80\x99s Authority to Fill Certain Prescriptions Written by Non-VA Physicians\n\n105, 119 (2001) (\xe2\x80\x9cAs the conclusion we reach today is directed by the text of \xc2\xa7 1,\nwe need not assess the legislative history of the exclusion provision.\xe2\x80\x9d); Ratzlaf v.\nUnited States, 510 U.S. 135, 147\xe2\x80\x9348 (1994) (\xe2\x80\x9cwe do not resort to legislative\nhistory to cloud a statutory text that is clear\xe2\x80\x9d). We note, further, that the statement\nin the House report is not specifically addressed to section 1710(a) (or to any other\nprovision of the Act) but is instead designed to counter CBO\xe2\x80\x99s $3 billion projections of the House bill\xe2\x80\x99s costs. See H.R. Rep. No. 104-690, at 15, 17, 19. We\ntherefore consider it especially suspect. In any event, the prescription authorization\nat issue here does not fit the \xe2\x80\x9cdrug store\xe2\x80\x9d analogy. The prescription services at\nissue here would be authorized only for \xe2\x80\x9cwaiting list\xe2\x80\x9d veterans and only for drugs\n\xe2\x80\x9cwhich the Secretary determines to be needed,\xe2\x80\x9d not for any veteran who wanted to\nfill a prescription.\nThird, the 2002 opinion argues that the provision of law stating that the \xe2\x80\x9cprimary function of the [Veterans Health] Administration is to provide a complete\nmedical and hospital service for the medical care and treatment of veterans,\xe2\x80\x9d 38\nU.S.C. \xc2\xa7 7301(b) (2000), \xe2\x80\x9chas historically been interpreted to mean that Congress\nintended VA to furnish services needed to treat an eligible veteran through VA\nfacilities and personnel.\xe2\x80\x9d 2002 VA Opinion \xc2\xb6 8. Because VA would be providing\nthe \xe2\x80\x9cmedical service\xe2\x80\x9d at issue\xe2\x80\x94i.e., filling the prescriptions\xe2\x80\x94through VA\nfacilities and personnel, we do not see how this argument has any bearing here.\nFinally, your Office has suggested that it would be anomalous for the Secretary\nto be required to charge a copayment amount for medication furnished the veteran\n\xe2\x80\x9con an outpatient basis for the treatment of a non-service-connected disability or\ncondition,\xe2\x80\x9d 38 U.S.C. \xc2\xa7 1722A(a)(1), but not to be required to be charged a\ncopayment for medication prescribed by a non-VA physician for such a disability\nor condition. But any such anomaly vanishes if, as seems to us permissible,3 the\nSecretary may regard the VA\xe2\x80\x99s filling of a prescription issued by a non-VA\nphysician to be service \xe2\x80\x9con an outpatient basis\xe2\x80\x9d for which a copayment would be\nrequired under section 1722A(a)(1). In any event, even if that anomaly were to\nremain, we would not see it as providing a sufficient basis for overriding our\nreading of section 1710(a).\nM. EDWARD WHELAN III\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n3\nThe VA regulations appear to contemplate only two broad categories of care or service: \xe2\x80\x9cinpatient\nhospital care\xe2\x80\x9d and \xe2\x80\x9coutpatient medical care.\xe2\x80\x9d See 38 C.F.R. \xc2\xa7 17.108(a)\xe2\x80\x93(c). Since VA clearly would\nnot be furnishing the prescriptions in question on an \xe2\x80\x9cinpatient\xe2\x80\x9d basis, it is reasonable to conclude that\nthey are furnished on an \xe2\x80\x9coutpatient\xe2\x80\x9d basis.\n\n129\n\n\x0c'


b'Presidential Discretion to Delay Making Determinations Under\nthe Chemical and Biological Weapons Control and Warfare\nElimination Act of 1991\nThe President is required to make a determination that would trigger sanctions under the Chemical\nand Biological W eapons Control and Warfare Elimination Act of 1991 if he is presented with\nsufficient evidence to compel the determination.\nThe President may delay making a determination that would trigger sanctions under the Act when\nthe delay is necessary to protect intelligence sources or methods used in counter-proliferation activi\xc2\xad\nties.\nThe President may delay making a determination that would trigger sanctions under the Act when\nno reasonable alternative means exist to protect the life of an intelligence source.\n\nNovember 16, 1995\nM e m o r a n d u m O p in io n fo r t h e\nS p e c ia l A s s is t a n t t o t h e P r e s id e n t a n d\nL e g a l A d v is e r t o t h e N a t io n a l S e c u r it y C o u n c il\n\nYou have asked for our opinion concerning the scope, if any, of the President\xe2\x80\x99s\ndiscretion to delay making the determinations that are prerequisite to imposing\nmandatory sanctions under the Chemical and Biological Weapons Control and\nWarfare Elimination Act of 1991, Pub. L. No. 102-182, \xc2\xa7 305(b), 105 Stat. 1245,\n1250 (the \xe2\x80\x9c CBW Act\xe2\x80\x9d ), codified in part as an amendment to the Export Adminis\xc2\xad\ntration Act. See 50 U.S.C. app. \xc2\xa7 2410c.1 We conclude that the CBW Act permits\nthe President to delay making determinations that would trigger sanctions under\nthis section, when the delay is necessary to protect intelligence sources or methods\nused for acquiring intelligence relating to CBW proliferation.\nYou have also asked whether the President has any greater ability to delay a\ndetermination when the life of an intelligence source would be placed at substan\xc2\xad\ntial risk by the imposition of sanctions and no alternative reasonable means exists\nto exfiltrate or otherwise protect the source. This extreme case creates a conflict\nwith the President\xe2\x80\x99s constitutional obligations and various of his statutory duties.\nIn such circumstances, we conclude that the President can delay making a deter\xc2\xad\nmination to protect the life of the source.\nI.\n\nSection 2410c of title 50 appendix reads in part as follows:\n\xe2\x80\xa2V irtually identical provisions were also codified as amendments 10 the Arms Export Control Act ( \xe2\x80\x9c A ECA \xe2\x80\x9d ).\nSee 22 U.S.C. \xc2\xa72798. For convenience, the citations herein are only to the Export Administration Act provisions.\nO ur opinion, however, applies equally to both sets o f provisions.\n\n306\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nExcept as provided in subsection (b)(2), the President shall\nimpose both of the sanctions described in subsection (c) if the Presi\xc2\xad\ndent determines that a foreign person, on or after the date of enact\xc2\xad\nment of this section,[2] has knowingly and materially contributed\xe2\x80\x94\n(A) through the export from the United States of any goods\nor technology that are subject to the jurisdiction o f the\nUnited States under this Act, . . . or\n(B) through the export from any other country of any goods\nor technology that would be, if they were United States\ngoods or technology, subject to the jurisdiction of the United\nStates under this Act . . .\n\nto the efforts by any foreign country, project, or entity described\nin paragraph (2) to use, develop, produce, stockpile, or otherwise\nacquire chemical or biological weapons.\n50 U.S.C. app. \xc2\xa72410c(a)(l).3\nThe \xe2\x80\x9c foreign countries]\xe2\x80\x9d to which subsection (a)(1) refers include any foreign\ncountry that the President determines to have used chemical or biological weapons\nin violation of international law, used lethal chemical or biological weapons\nagainst its own nationals, or made substantial preparations to engage in either\nof those two activities; any foreign country whose government is determined to\nhave repeatedly supported acts of international terrorism; or any other foreign\ncountry, project, or entity designated by the President. Id. \xc2\xa72410c(a)(2).\nOnce a determination has been made, both procurement and import sanctions\nare liable to be imposed. Id. \xc2\xa72410c(c)(2). Congress \xe2\x80\x9c urges\xe2\x80\x9d the President, before\nimposing sanctions, to engage in consultations \xe2\x80\x9c immediately\xe2\x80\x9d with the foreign\ngovernment with primary jurisdiction over the person subject to the sanctions.\nId. \xc2\xa72410c(b)(l). In order to pursue such consultations, the President may delay\nimposing sanctions for up to 90 days. Id. \xc2\xa72410c(b)(2). Following these consulta\xc2\xad\ntions, the President \xe2\x80\x9c shall\xe2\x80\x9d impose sanctions unless he determines and certifies\nto Congress that the government has taken \xe2\x80\x9c specific and effective actions\xe2\x80\x9d to\nend the involvement of the subject person in the sanctionable activities. Id. A\nfurther delay of up to 90 days is authorized if the President determines and cer\xc2\xad\n2 The effective date o f the statute was O ctober 28, 1991.\n3 The comparable provision o f the AECA is virtually identical, except for the addition o f a third basis for the\nPresident\'s determination. Under AECA, the imposition o f sanctions can also be based on a determination that a\nforeign person contributed to a foreign country\xe2\x80\x99s use or acquisition o f chemical or biological weapons \xe2\x80\x9c through\nany other transaction not subject to sanctions pursuant to the Export Administration Act o f 1979.\xe2\x80\x9d 22 U.S.C.\n\xc2\xa72798(a)(l)(C ).\n\n307\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ntifies to Congress that the foreign government is \xe2\x80\x9c in the process\xe2\x80\x9d of taking the\nappropriate actions. Id.\nThe President is authorized not to apply or maintain sanctions in certain speci\xc2\xad\nfied circumstances. Id. \xc2\xa72410c(c)(2). Thus, the President is not required to impose\nsanctions in certain cases of procurement of defense articles or defense services\n(e.g., those articles or services that the President determines are \xe2\x80\x9c essential to the\nnational security under defense coproduction agreements\xe2\x80\x9d ). Id. Any sanction that\nis imposed shall apply for at least 12 months, and shall cease only upon a deter\xc2\xad\nmination by the President, and certification to Congress, that reliable information\nindicates that the foreign person under sanction has ceased to aid and abet the\nactivities described in subsection (a)(1). Id. \xc2\xa72410c(d). Twelve months after\nimposing sanctions, the President may also waive further application of the sanc\xc2\xad\ntions, if he determines and certifies to Congress that such a waiver is \xe2\x80\x9c important\nto the national security interests o f the United States.\xe2\x80\x9d Id. \xc2\xa72410c(e)(l).\nWe believe that \xc2\xa7 2410c permits the President to delay making a determination\nthat would trigger sanctions. The statute permits a delay, however, only when\na delay is necessary to advance the policy of the statute by protecting intelligence\nsources or methods used in counterproliferation activities.\nWe begin by considering whether \xc2\xa7 2410c requires the President to make a\ndetermination leading to the imposition o f sanctions when presented with appro\xc2\xad\npriate facts, or merely grants him the discretion to make or to decline to make\nsuch a determination in those circumstances. We conclude that \xc2\xa72410 does impose\na mandate that requires the President to make a determination when presented\nwith the appropriate facts. We then consider whether \xc2\xa7 2410c permits the President\nto delay making a determination required by the statute. We first review the text\nand structure of \xc2\xa7 2410c and related statutes. Finding that evidence inconclusive,\nwe turn to the legislative history and administrative construction of the statute.\nOur review of that history establishes that the President has some discretion to\ndelay making the statutory determinations, if such a delay is necessary to protect\nintelligence sources or methods used in detecting or preventing CBW proliferation.\nII.\nOur first question is whether \xc2\xa7 2410c requires the President to make a deter\xc2\xad\nmination that a foreign person has \xe2\x80\x9c knowingly and materially contributed\xe2\x80\x9d to\nprohibited CBW efforts if his subordinates present him with evidence that estab\xc2\xad\nlishes that such a state of affairs exists, or whether the President has the discretion\nto make or decline to make that determination in those circumstances. We believe\nthat the statute requires the President to make the determination.\nIt is often the case that \xe2\x80\x9cCongress may feel itself unable conveniently to deter\xc2\xad\nmine exactly when its exercise o f the legislative power should become effective,\nbecause dependent on future conditions, and it may leave the determination of\n\n308\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination A ct o f 1991\n\nsuch time to the decision of an Executive.\xe2\x80\x9d J.W. Hampton, Jr., & Co. v. United\nStates, 276 U.S. 394, 407 (1928). When it delegates the power, and prescribes\nthe duty, to make such determinations, the President may be considered \xe2\x80\x9c the mere\nagent of the law-making department to ascertain and declare the event upon which\nits expressed will was to take effect.\xe2\x80\x9d Id. at 411. We believe that \xc2\xa7 2410c casts\nthe President in such a role, and requires him to make a determination if the\nfacts available to him establish that the conditions described in the statute exist.4\nThe language and purpose of the CBW Act demonstrate that the President has\na duty to make determinations, not merely the discretion to do so. Section\n2410c(a)(l) states that the President \xe2\x80\x9c shall impose\xe2\x80\x9d the specified sanctions \xe2\x80\x9c if\n[he] determines\xe2\x80\x9d that the predicate facts exist (emphasis added). As discussed\nat length in Part IV below, the legislative history confirms that this language man\xc2\xad\ndates that sanctions be imposed (once the appropriate determinations are made).5\nWe have advised the National Security Council (\xe2\x80\x9c NSC\xe2\x80\x9d ) that similar language\nin a closely related export control statute gave the President very limited, if any,\ndiscretion to delay or withhold making the predicate determination. See Memo\xc2\xad\nrandum to Files from Paul P. Colbom, Acting Deputy Assistant Attorney General\nand Jacques deLisle, Attomey-Adviser, Office of Legal Counsel, Re: Presidential\nDiscretion to Make \xe2\x80\x9cDeterminations\xe2\x80\x9d Concerning Foreign Countries (July 22,\n1993) (the \xe2\x80\x9c July 1993 Memo\xe2\x80\x9d ).\nIn the July 1993 Memo, we construed the missile technology control provisions\nof the Export Administration Act (\xe2\x80\x9c EAA\xe2\x80\x9d ), 50 U.S.C. app. \xc2\xa72410b(b), which\nstate that the President \xe2\x80\x9c shall impose\xe2\x80\x9d sanctions \xe2\x80\x9c if the President determines\xe2\x80\x9d\nthat a foreign person is engaged in the activities covered by the statute. We\nadvised that \xe2\x80\x9c [r]eading the arguably indeterminate phrases \xe2\x80\x98if the President deter\xc2\xad\nmines\xe2\x80\x99 and \xe2\x80\x98if the President has made a determination\xe2\x80\x99 as doing no more than\nauthorizing a discretionary determination would nearly make a nullity of\nCongress\xe2\x80\x99s apparently mandatory \xe2\x80\x98shall impose\xe2\x80\x99 language later in the section.\xe2\x80\x9d\nJuly 1993 Memo at 3-4. Similarly here, it would defeat Congress\xe2\x80\x99s fundamental\nintent of ensuring that sanctions are imposed on foreign persons who are deter\xc2\xad\nmined to be CBW Act proliferators,6 if the President could simply refuse to make\n*Cf. Field v. Clark, 143 U.S. 649, 692-93 (1892); Florsheim Shoe Co. v. United States, 744 F.2d 787, 79394 (Fed. Cir. 1984) (construing statutes to mandate, not merely to authorize, presidential determinations o f fact).\n5 In brief, the legislative record shows that, in 1990, President Bush pocket-vetoed a precursor o f the present\nCBW Act, H.R. 4653, 101st Cong. (1990), on the ground that it left him with insufficient discretion to delay or\nwithhold sanctions. State Department officials in testimony before Congress emphasized the President\'s concerns\nwith a regime o f mandatory sanctions. Congress, however, was plainly unpersuaded that the President should have\ndiscretion to withhold sanctions on foreign persons (i.e., companies) found to be CBW proliferators. At least three\nSenators responded to President Bush\'s pocket veto o f H.R. 4653 by firmly rejecting the notion that \xe2\x80\x9c automatic\xe2\x80\x9d\nsanctions were potentially harmful. The final bill that passed Congress, H.R. 1415, 102d Cong. (1991), embodied\nthe Senators\', rather than the President\xe2\x80\x99s, policy preferences: it included provisions for mandatory sanctions. A suc\xc2\xad\ncessor bill enacted soon thereafter, H.R. 1724, 102d Cong. (1991), which is now codified in relevant part as the\nCBW Act, also mandated sanctions if the appropriate determinations were made.\n6 As further discussed below, \xc2\xa7 2410c permits the President to engage in consultations with the foreign country\nhaving jurisdiction over the proliferator, before the sanctions must com e into effect. This provision qualifies, but\ndoes not negate, the mandatory nature o f the sanctions.\n\n309\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsanction-triggering determinations at all. Accordingly, we believe that the Presi\xc2\xad\ndent has a duty to make the determinations specified in the statute if he is pre\xc2\xad\nsented with sufficient evidence to compel that conclusion.7\nIII.\nWe next consider whether, notwithstanding that it imposes a mandatory duty\non the President to make the determination described in that section when pre\xc2\xad\nsented with appropriate facts, \xc2\xa7 2410c nonetheless affords the President with\ndiscretion to delay making the determination when the delay is necessary to pro\xc2\xad\ntect intelligence sources or methods used in counterproliferation. In this Part, we\nanalyze the text and structure o f the statute and related provisions, and find that,\nwithout more, such analysis cannot decide the issue. In Parts IV and V, we review\nthe legislative and administrative history. We conclude that \xc2\xa7 2410c does provide\nsuch discretion, subject to the constraints explicated in Part VI.\nA.\nSection 2410c delegates to the President the power (and imposes the duty) to\nmake the determination that a foreign person has \xe2\x80\x9c knowingly and materially\xe2\x80\x9d\ncontributed through exports to a proscribed country\xe2\x80\x99s CBW efforts and to sanction\nthe foreign person for that conduct. Because the President possesses varied and\nsubstantial constitutional powers in his own right in the field o f foreign affairs,8\ncongressional delegations of power to the President to act in that area are under\xc2\xad\nstood to give him unusually wide-ranging powers.9 Moreover, the special institu\xc2\xad\ntional capabilities of the executive branch \xe2\x80\x94 including its ability to respond\n7 In construing the missile technology control statute at issue in the July 1993 Memo, we noted that the presence\no f a broad w aiver provision in that statute confirm ed o ur view that the statute contained a mandate rather than\na grant o f discretion. The CBW Act we construe here lacks a correspondingly broad w aiver provision. While such\na provision would certainly support our analysis, we find that in light o f the text o f the CBW Act and the persuasive\nevidence o f congressional intent, the lack o f a waiver provision does not affect our conclusion that the President,\nw ith limited exceptions, is required to make the determination prescribed under the CBW Act when presented with\nappropriate facts.\n8 See, e.g., Department o f the Navy v. Egan , 484 U.S. 518, 529 (1988) (Court has \xe2\x80\x9c recognized \xe2\x80\x98the generally\naccepted view that foreign policy was the province and responsibility of the Executive.\' " ) (quoting Haig v. Agee,\n453 U.S. 280, 2 9 3 -9 4 (1981)); Alfred DunhiU o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705 n.18 (1976)\n( \xe2\x80\x9c [T]he conduct o f [foreign policy] is committed primarily to the Executive Branch. . . .\xe2\x80\x9d ); United States v. Lou\xc2\xad\nisiana, 363 U.S. 1, 35 (1960) (President is \xe2\x80\x9c the constitutional representative o f the United States in its dealings\nwith foreign nations.\xe2\x80\x9d ); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948).\nR elatedly, the President possesses significant constitutional powers to safeguard sensitive national security informa\xc2\xad\ntion. See, e.g., Webster v. Doe, 486 U.S. 592, 605-06 (1988) (O \xe2\x80\x99Connor, J., concurring in part and dissenting in\npart); Department o f the Navy v. Egon, 484 U .S. at 527; Haig v. Agee, 453 U.S. at 307-08; New York Times Co.\nv. United States, 403 U.S. 713, 728-29 (1971) (Stewart, J., joined by W hite, J., concurring); Hill v. Department\no f Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert, denied, 488 U.S. 825 (1988). He also possesses some measure\no f inherent pow er with respect to foreign commerce, see Barclays Bank PLC v. Franchise Tax B d , 512 U.S. 298,\n329 (1994); see also Diversion o f Water From Niagara River, 30 Op. A tt\xe2\x80\x99y Gen. 217, 221-22 (1913) (opining\nthat in absence o f legislation, the President m ay determine the conditions o f the importation of electrical power\nfrom Canada).\n9 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 & n.2 (1952) (Jackson, J., concurring).\n\n310\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination A ct o f 1991\n\nflexibly to unforeseen contingencies and its access to sensitive information 10\xe2\x80\x94\nhave provided practical reasons for Congress to confer broad delegations of power\nover the conduct of foreign affairs to the President. \xe2\x80\x9c [B]ecause of the changeable\nand explosive nature of contemporary international relations, and the fact that the\nExecutive is immediately privy to information which cannot be swiftly presented\nto, evaluated by, and acted upon by the legislature, Congress\xe2\x80\x94 in giving the\nExecutive authority over matters of foreign affairs \xe2\x80\x94 must of necessity paint with\na brush broader than that it customarily wields in domestic areas.\xe2\x80\x9d Zemel v. Rusk,\n381 U.S. 1, 17 (1965).11 Thus, \xe2\x80\x9c [b]oth Congress and the courts have traditionally\nsought to avoid restricting the Executive unduly in matters affecting foreign rela\xc2\xad\ntions because of the need for flexibility in this area and the fact that the Constitu\xc2\xad\ntion entrusts the external affairs of the Nation primarily to the Executive.\xe2\x80\x9d Export\nSales o f Agricultural Commodities to Soviet Union and Eastern European Bloc\nCountries, 42 Op. Att\xe2\x80\x99y Gen. 229, 237-38 (1963). In light of these considerations,\nwe would not presume that, in delegating power under \xc2\xa7 2410c, Congress has\nsought to limit the President\xe2\x80\x99s otherwise broad discretion, absent clear evidence\nof such a congressional intent.12\nThe reasoning that supports the inference that Congress typically accords the\nPresident broad discretion when it authorizes him to act in the field of foreign\naffairs is equally applicable to the issue of timing. The \xe2\x80\x9c changeable and explosive\nnature of contemporary international relations,\xe2\x80\x9d Zemel v. Rusk, 381 U.S. at 17,\nrenders it difficult and sometimes impossible for Congress to gauge in advance\nthe immediate consequences of actions that it permits or requires the President\nto take. In general, moreover, the authority \xe2\x80\x9c to consider the foreign affairs rami\xc2\xad\n10See Chicago & Southern Air Lines, Inc., 333 U.S. at 111 ( \xe2\x80\x9c The President, both as Com m ander-in-Chief and\nas the N ation\xe2\x80\x99s organ for foreign affairs, has available intelligence services whose reports are not and ought not\nto be published to the w orld.\xe2\x80\x9d ); see also Harold H. Koh, Why the President (Almost) Always Wins in Foreign\nAffairs: Lessons o f the Iran-Contra Affair, 97 Yale L.J. 1255, 1292 (1988).\n11Accord Haig v. Agee , 453 U.S. at 292, United States v. Cuniss-Wrighi Export Corp., 299 U.S. 304, 320 (1936)\n( \xe2\x80\x9c [C ongressional legislation which is to be made effective through negotiation and inquiry w ithin the international\nfield must often accord to the President a degree o f discretion and freedom from statutory restriction which would\nnot be admissible were domestic affairs alone involved.\xe2\x80\x9d ); Palestine Info. Office v. Shultz, 853 F.2d 932, 937 (D.C.\nCir. 1988) (Mikva, J.), Sordino v. Federal Reserve Bank, 361 F.2d 106, 110 (2d Cir.) (Friendly, J.), cert, denied ,\n385 U.S. 898(1966).\nRelying on such reasons, the Ninth Circuit has upheld, against a nondelegation challenge, the authority o f the\nexecutive branch to punish the unlicensed export o f goods under the EAA, despite the preclusion o f judiciai review\nof administrative action.\nThe fact that the EAA involves matters o f foreign policy and national security also counsels in favor\no f upholding the A ct\'s preclusion o f judicial review. . . . Permitting Congress broadly to delegate decisions\nabout controlled exports to an agency makes sense; it would be impossible for Congress to revise the\n[Commodity Control List] quickly enough to respond to the fast-paced developments in the foreign policy\narena. . . . [T]he Supreme Court has consistently emphasized that broad delegations are appropriate in\nthe foreign policy arena. . . .\nUnited Stales v. Bozarov, 974 F.2d 1037, 1044 (9th Cir. 1992), cert, denied , 507 U.S. 917 (1993); see also Duracell,\nInc. v. U.S. Int\xe2\x80\x99l Trade Commn, 778 F.2d 1578, 1582 & n.13 (Fed. Cir. 1985).\n12 See Presidential Authority to Adjust Ferroalloy Imports Under \xc2\xa7232(b) o f the Trade Expansion Act o f 1962,\n6 Op. O.L.C. 557, 562 (1982) (A statutory requirement that the President, after receiving a Report from the Secretary\no f Commerce that imports o f materials into United States threatened national security, either adjust imports or reject\nthe Secretary\xe2\x80\x99s findings, allowed the President to defer decision by \xe2\x80\x9c retain[ing] the Report for further consideration,\xe2\x80\x9d\nbecause \xe2\x80\x9c [n]o time frame constrains the President.\xe2\x80\x9d )-\n\n311\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nfications of a particular mode of [statutory] enforcement and to suspend\nimplementation [of the statute] to avoid a confrontation,\xe2\x80\x9d is, \xe2\x80\x9c [i]n the absence\nof a statutory mandate or express prohibition,\xe2\x80\x9d to \xe2\x80\x9c be found in the inherent and\nwell recognized powers of the executive branch.\xe2\x80\x9d Olegario v. United States, 629\nF.2d 204, 226 (2d Cir. 1980), cert, denied, 450 U.S. 980 (1981). A rule of\nconstruction that accords the President reasonable discretion over timing, in the\nabsence of evidence of contrary legislative intent, is thus most consistent with\nthe ordinary relationship between the President and Congress in foreign affairs.\nFurthermore, as a general rule of administrative law, an agency may be under\na statutory mandate to perform a certain act, and yet retain some discretion over\nthe timing o f the performance o f that act: the rule is that it must proceed in a\nreasonably timely manner. Furthermore, an agency may be operating under a statu\xc2\xad\ntory provision that regulates the timing o f its performance, and yet not be wholly\ndevoid o f statutory discretion to delay the performance beyond the statutory dead\xc2\xad\nline.13 A nondiscretionary duty of timeliness ordinarily exists only when the\nstatute \xe2\x80\x9c \xe2\x80\x98categorically mandates]\xe2\x80\x99 that all specified action be taken by a datecertain deadline.\xe2\x80\x9d Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987)\n(quoting NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974)). \xe2\x80\x9c [I]t is highly\nimprobable that a deadline will ever be nondiscretionary, i.e. clear-cut, if it exists\nonly by reason of an inference drawn from the overall statutory framework.\xe2\x80\x9d Id.\nat 791.\nTo be sure, if \xe2\x80\x9c the statutory language itself contained] [a] direction to the\n[President] automatically and regardless of the circumstances\xe2\x80\x9d to make the deter\xc2\xad\nmination upon a certain event, Japan Whaling A ss\xe2\x80\x99n v. American Cetacean Soc\xe2\x80\x99y,\n478 U.S. 221, 233 (1986), then the President might well be unable to delay making\nthe determination.14 Assuming, however, that Congress chose not to dictate the\ntiming o f the determinations that trigger sanctions, then \xc2\xa7 2410c could be con\xc2\xad\nstrued to permit the President some discretion in the timing of a determination,\nat least in certain cases.\nIn light o f these general considerations \xe2\x80\x94 that delegations of foreign policy\npowers to the President must be construed broadly, and that in the absence of\na specific duty to make determinations within a fixed time-frame, the President\nhas discretion to delay a determination for a reasonable period\xe2\x80\x94 we would not,\nabsent countervailing reasons, read \xc2\xa7 2410c to impose a duty on the President\n13 See, e.g.. Cutler v. Hayes, 818 F.2d 879, 896-98 (D.C. Cir. 1987); Presidential Authority to Extend Deadline\nfo r Submission o f an Emergency Board Report Under the Railway Labor Act, 14 Op. O.L.C. 57, 59-60 (1990)\n(discussing interpretation o f current statutory timeliness requirements).\nu The statute at issue in Japan Whaling Association required the Secretary of Commerce to \xe2\x80\x9c periodically monitor\nthe activities o f foreign nationals that may affect [international fishery conservation program s]," id. at 226 (alteration\nin original) (quoting 22 U.S.C. \xc2\xa7 1978(a)(3)(A)), \xe2\x80\x9c promptly investigate any activity by foreign nationals that . . .\nmay be cause for certification [that a foreign country\xe2\x80\x99s actions had diminished the effectiveness of an international\nwhaling c o n v en tio n ]/\xe2\x80\x99 id. (quoting 22 U.S.C. \xc2\xa7 1978(a)(3)(B)), and \xe2\x80\x9c promptly conclude; and reach a decision with\nrespect to; [that] investigation.\xe2\x80\x9d Id. (alteration in original) (quoting 22 U.S.C. \xc2\xa7 1978(a)(3)(C)). The Court had no\ndifficulty in concluding that this language required the Secretary to make a certification decision promptly. Id. at\n232.\n\n312\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nto act other than in a reasonably timely manner. But the analysis cannot end there.\nThe text of \xc2\xa7 2410c and related statutes, coupled with the legislative history,\nclearly imply that there are some constraints on the President\xe2\x80\x99s discretion to delay\nmaking a determination. We begin by reviewing the textual and structural argu\xc2\xad\nments for the view that \xc2\xa7 2410c in fact gives the President little or no discretion\nto delay making determinations.\nB.\nFirst, as we have already noted, \xc2\xa72410c(a)(l) clearly imposes a duty: it states\nthat the President \xe2\x80\x9c shall impose\xe2\x80\x9d the specified sanctions \xe2\x80\x9c if [he] determines\xe2\x80\x9d\nthat the predicate facts exist (emphasis added). \xe2\x80\x9c Shall\xe2\x80\x9d here undoubtedly\nexpresses a mandate.15 The duty to impose sanctions after a determination has\nbeen made suggests that there are limits on the President\xe2\x80\x99s authority to postpone\nmaking the determination, once the facts relevant to the determination are before\nhim.\nSecond, the remainder of \xc2\xa7 2410c confirms that Congress did seek to limit, in\nfact rather sharply, the President\xe2\x80\x99s discretion over the timing of his determinations.\nThe section expresses the sense of Congress that the President, after making a\ndetermination, \xe2\x80\x9c immediately\xe2\x80\x9d consult with the foreign country that has jurisdic\xc2\xad\ntion over the proliferator, and authorizes a 90-day delay in imposing sanctions\nto permit consultations with that country to go forward. A further 90-day delay\nis permitted upon an appropriate certification to Congress that the consultations\nare going forward. The fact that consultations are to occur \xe2\x80\x9c immediately\xe2\x80\x9d after\nthe determination, and that there can be delays in imposing sanctions for up to\n180 post-determination days to allow the consultations to proceed, suggests that\nCongress intended to accommodate, structure and delimit the President\xe2\x80\x99s ability\nto conduct diplomacy and to take account of foreign policy concerns before being\nbound to impose sanctions. Outside that statutory framework, however, it appears\nthat discretion to withhold sanctions\xe2\x80\x94 and to postpone making the determinations\nthat triggered them \xe2\x80\x94 was to be limited or non-existent. Given the breadth of\nCongress\xe2\x80\x99s power over foreign commerce, such limitations on the President\xe2\x80\x99s\ndiscretion are not on their face invalid.\nThird, in 1991, Congress codified CBW sanctions not only in the provisions\nat issue in title 50 appendix, but also in title 22.16 Thus, \xc2\xa7 2 4 10c is in pari materia\nwith the title 22 provisions. The latter provisions deal both with foreign govern\xc2\xad\nments and foreign persons. As noted earlier, the provisions of \xc2\xa7 2798 of title 22,\n15 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 (1995); id. at 438-39 (Souter, J., dissenting). The\nlegislative history (reviewed more fully in Part HI below) underscores the nondiscretionary nature of the sanctions\nthat the language o f \xc2\xa7 2410c conveys.\n16 Indeed, the relevant provisions in title 22, like those in title 50 appendix, were enacted as part of the Foreign\nRelations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102-138, \xc2\xa7505, 105 Stat. 647, 724 (\xe2\x80\x9c FRA \xe2\x80\x9d ),\nand superseded by virtually identical provisions in the CBW , Pub. L. No. 102-182, \xc2\xa7305(b), 105 Stat. at 1250.\nThese tw o 1991 enactments are discussed further in Part IV below.\n\n313\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ndealing with foreign persons, are virtually identical to the provisions of \xc2\xa7 2410c\no f title 50 appendix.17 Section 5604(a)(1) of title 22,18 which deals with the con\xc2\xad\nduct of foreign governments, sets a specific, 60-day time limit for making presi\xc2\xad\ndential determinations after \xe2\x80\x9c persuasive information\xe2\x80\x9d becomes available to the\nexecutive branch that a foreign government is or has engaged in prescribed CBW\nuses.19 Nothing nearly so stringent was written into \xc2\xa7 2410c, inviting the inference\nthat the President is less time-constrained in making determinations under that\nsection. On the other hand, 22 U.S.C. \xc2\xa7 5605(d) authorizes the waiver of most\nof the sanctions imposed under that section if the President certifies to Congress\nthat such waiver \xe2\x80\x9c is essential to the national security interests of the United\nStates.\xe2\x80\x9d Id. \xc2\xa75605(d)(l)(A)(i). N o such waiver authority is given in the case of\nforeign person sanctions under title 50 appendix.20 Thus, in the companion statutes\nto \xc2\xa7 2410c, Congress limited the President\xe2\x80\x99s discretion over the timing of sanctiontriggering determinations much more closely and explicitly, but also gave the\nPresident far broader power to waive sanctions. Overall, it appears to us, the Presi\xc2\xad\ndent has broader discretion under the title 22 CBW provisions than under those\nin title 50 appendix. This outcome, we believe, reflects Congress\xe2\x80\x99s judgment that\nthe President\xe2\x80\x99s constitutional foreign policy prerogatives are more deeply\nimplicated, and so must be left less closely regulated, when country sanctions,\nrather than foreign person sanctions, are to be applied.\nC.\nThe textual and structural analysis of \xc2\xa7 2410c and related statutes is inconclu\xc2\xad\nsive. On the one hand, there are strong arguments that the President is not wholly\nwithout discretion to delay making such determinations: the rule o f statutory\nconstruction relating to delegations of foreign policy power, coupled with the\nabsence of a detailed time-frame in \xc2\xa7 2410c for making determinations, and the\ngeneral rule that administering agencies are allowed reasonable delays in such\nmatters, suggest that the President\xe2\x80\x99s discretion is by no means non-existent. On\nthe other hand, there are also strong arguments for concluding that the statute\nleaves the President with little or no discretion to delay making \xc2\xa7 2410c determina\xc2\xad\ntions.\n17 See supra notes 1,3.\nl8This section originated as section 506 o f the FRA, Pub. L. No. 102-138, 105 Stat. at 730, and was replaced\nby section 306 o f the CBW , Pub. L. No. 102-182, 105 Stat. at 1252.\n19 The suggested dichotomy between foreign persons and foreign governments may operate imprecisely when the\nactions o f foreign parastata) entities are at issue. W hether either o r both sanctions\xe2\x80\x99 regime? should be invoked in\nresponse to the conduct o f such entities will depend on the particular facts and circumstances o f each case.\n\xe2\x80\x9c Section 2410c does not, in terms, include any \xe2\x80\x9c w aiver\xe2\x80\x9d authority until after sanctions have been applied for\nat least 12 months. Implicit w aiver authority may be found in \xc2\xa72410c(c)(2), entitled \xe2\x80\x9c Exceptions,\xe2\x80\x9d which states\nthat the President \xe2\x80\x9c shall not be required to apply or m aintain\xe2\x80\x9d sanctions if certain conditions hold.\n\n314\n\n\x0cPresidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nGiven the uncertainty that remains after this examination of the statutory text\nand structure, we tum in the next Part to a consideration of the legislative and\nadministrative history of \xc2\xa7 2410c.\nIV.\nSection 2410c codifies section 305 of the CBW, 105 Stat. at 1247. It is virtually\nidentical to a statute adopted very shortly before by the same Congress, the For\xc2\xad\neign Relations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102138, \xc2\xa7 505(a), 105 Stat. at 724.21 Section 309(a) of Pub. L. No. 102-182 repealed\nthe earlier version. See CBW, 105 Stat. at 1258.\nBoth Congress and the Bush Administration had desired the adoption of CBW\nnonproliferation legislation even before 1991, but differed sharply over particular\nproposals. In 1990, Congress passed H.R. 4653, title IV of which (the Omnibus\nExport Amendments Act of 1990), was substantially the same as both current\n\xc2\xa7 2410c and that section\xe2\x80\x99s immediate (but short-lived) precursor, title V of Pub.\nL. No. 102-138.22 President Bush pocket-vetoed H.R. 4653.23 In his memorandum\nof disapproval of November 16, 1990, President Bush declared his support for\nthe \xe2\x80\x9c principal goals\xe2\x80\x9d of H.R. 4653, but objected to provisions that, in his judg\xc2\xad\nment, \xe2\x80\x9c unduly interfere[d] with the President\xe2\x80\x99s constitutional responsibilities for\ncarrying out foreign policy.\xe2\x80\x9d 24 He identified as \xe2\x80\x9c [t]he major flaw\xe2\x80\x9d in H.R. 4653\n\xe2\x80\x9c not the requirement of sanctions, but the rigid way in which they are\nimposed.\xe2\x80\x9d 25 In lieu of signing H.R. 4653, President Bush issued an executive\n21 Although there were minor differences, Pub. L. No. 102-138 closely resembled the successor statute, Pub. L.\nNo. 102-182. See Statement on Signing Legislation on Trade and Unemployment Benefits, 2 Pub. Papers o f G eorge\nBush 1543, 1544 (Dec. 4, 1991) ( \xe2\x80\x9c This Act is virtually identical to Title V o f Public Law 102-138, which I signed\ninto law on October 28, 1991. The only significant difference is the addition o f import sanctions to the list o f\nsanctions that are to be imposed and corresponding additions to the Presidential waiver provisions.\'*); 137 Cong.\nRec. 35,408 (1991) (remarks o f Rep. McCurdy) ( \xe2\x80\x9c [T]he conference report on H.R. 1724 contains virtually all o f\nthe provisions on chemical and biological weapons proliferations found in the conference report on H.R. 1415, the\nState Department authorization for fiscal years 1992 and 1993.\xe2\x80\x9d )22 Section 423(a) o f H.R. 4653, as enrolled and presented to the President, was virtually identical to \xc2\xa7 2410c.\nSection 423(a) differed from what is now current law only in two minor respects. First, it did not provide that\namong the foreign countries, projects, o r entities whose CBW efforts it was sanctionable to assist were those des\xc2\xad\nignated by the President, as under \xc2\xa72410c(a)(2)(C). Second, it did not authorize an additional 90-day delay period\nfor consultation with the foreign government o f jurisdiction before sanctions had to be imposed, as in \xc2\xa72410c(b)(2).\n23 See H.R. Conf. Rep. No. 102-238, at 154 (1990), reprinted in 1991 U.S.C.C.A.N. 439, 496.\n24Memorandum o f Disapproval for the Omnibus Export Amendments Act o f 1990, 2 Pub. Papers o f George Bush\n1619 (Nov. 16, 1990).\n25Id. The State Department had expressed objections to nondiscretionary sanctions early in the Bush A dministra\xc2\xad\ntion, during hearings in 1989 before the House Foreign Affaire Committee. See Chemical Weapons Proliferation:\n\nHearing and Markup o f H.R. 3033 Before the House Comm, on Foreign Affairs and its Subcomms. on Arms Control,\nInternational Security and Science, and on International Economic Policy and Trade, 101st Cong. 18 (1989) (col\xc2\xad\nloquy between Chairman Dante Fascell and Assistant Secretary o f State H. Allen Holmes). The State Department\nrepeated its objections in a letter from Secretary o f State James Baker to Senator Jesse Helms, relating to the Senate\nCBW bill, S. 195, 101st Cong. (1989). See Letter for Senator Jesse Helms from James D. Baker, Secretary of\nState (Oct. 16, 1990), reprinted in 136 Cong. Rec. 35,688 (1990).\nIn response. Senator Helms defended the Senate bill\xe2\x80\x99s provisions (which resemble later-enacted law) for nondis\xc2\xad\ncretionary sanctions against foreign corporate CBW proliferators. He argued that \xe2\x80\x9c the Senate version is very tightly\nContinued\n\n315\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\norder, Executive Order No. 12735,26 that directed the imposition of the sanctions\ncontained in H.R. 4653, and that implemented new chemical and biological\nweapon export controls.27\nEarly the following year, during the debate on S. 320, 102d Cong. (1991) the\n\xe2\x80\x9c Omnibus Export Administration Act of 1991,\xe2\x80\x9d several Senators criticized Presi\xc2\xad\ndent Bush\xe2\x80\x99s pocket-veto of H.R. 4653. Senator Riegle, for example, disagreed\nwith President Bush\xe2\x80\x99s position in the pocket-veto message \xe2\x80\x9c that imposing\nnonwaivable sanctions on companies that knowingly and materially assist in the\ndevelopment of chemical or biological weapons for use by countries that use them\nin violation o f international law is unjustifiable.\xe2\x80\x9d 137 Cong. Rec. 3777 (1991).\nHe stated that \xe2\x80\x9c [w]e simply must take a tough stand if we are to rid the world\no f the threat o f such weapons.\xe2\x80\x9d Id.2S\nLater in 1991, Congress adopted H.R. 1415 which, as noted, was in all relevant\nrespects the same as both the earlier, pocket-vetoed bill, H.R. 4653, and current\n\xc2\xa7 2410c. President Bush signed H.R. 1415 into law as Pub. L. No. 102-138 on\nOctober 28, 1991. President Bush issued a signing statement on that occasion 29\nAs to the chemical and biological weapons provision in the legislation, the Presi\xc2\xad\ndent stated:\nTitle V, Chemical and Biological Weapons (CBW), raises con\xc2\xad\ncerns with respect to both the President\xe2\x80\x99s control over negotiations\nwith foreign governments and the possible disclosure of sensitive\ninformation. Title V\xe2\x80\x99s provisions establish sanctions against foreign\ncompanies and countries involved in the spread or use of chemical\nand biological weapons. Title V demonstrates that the Congress\nendorses my goal of stemming dangerous CBW proliferation. In\ndraw n so that it applies sanctions only to violators who meet specific norms. I cannot imagine why my good friend,\nthe Secretary, o r the President, would ever w ant the flexibility to exempt a corporation that is guilty o f proliferation\no f chem ical and biological weapons and technology.\xe2\x80\x99* 136 Cong. Rec. at 35,690. Senator Helms also explained,\nin a m anner that sheds some light on the existing statute, the procedure for making presidential determinations:\n\xe2\x80\x9c [u]nder both the House and Senate bills, before sanctions can be imposed upon a foreign company, the President\nm ust first determ ine that the company had knowingly and either materially or substantially assisted the chemical\nor biological w eapons program of Iraq o r certain other outlaw nations. This is not an easy standard, and whether\na com pany has met this standard is left to the discretion and judgm ent of the President.\xe2\x80\x9d Id. at 35,689.\n26 See Exec. O rder No. 12735, 3 C.F.R. 313 (1991) reprinted in 50 U.S C \xc2\xa7 1701 note (1994).\n27 As President Bush characterized it, E xec. Order No. 12735 \xe2\x80\x9c sets forth a clear set o f stringent sanctions, while\nencouraging negotiations with our friends and allies. It imposes an economic penalty on companies that contribute\nto the spread o f these weapons and on countries that actually use such weapons or are making preparations to\ndo so. A t the sam e time, it allows the President necessary flexibility in implementing these sanctions and penalties.\xe2\x80\x9d\n2 Pub. Papers o f G eorge Bush at 1619-20 (N ov. 16, 1990).\n28 Senator Helms and Senator Heinz also criticized the pocket veto. See J 37 Cong. Rec. at 3780 (1991) (remarks\no f Sen. H elms); id. at 3781 (remarks of Sen. Heinz). An Administration witness before the Senate Foreign Relations\nCom m ittee in M ay, 1991, reiterated the A dm inistration\xe2\x80\x99s constitutional and foreign policy objections to specific\nm andatory sanctions. See Status of 1990 Bilateral Chemical Weapons Agreement and Multilateral Negotiation on\nChemical Weapons Ban: Hearing Before the Senate Comm, on Foreign Relations, 102d Cong. 19 (1991) (remarks\no f A m bassador Ronald F. Lehman, Director, U.S. Arms Control and Disarmament Agency). Nonetheless, the Presi\xc2\xad\ndent did ultim ately sign a bill that provided only limited w aiver authority.\n29 Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, 2 Pub. Papers\no f G eorge Bush 1344 (Oct. 28, 1991).\n\n316\n\n\x0cPresidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nsigning this Act, it is my understanding, as reflected in the legisla\xc2\xad\ntive history, that title V gives me the flexibility to protect intel\xc2\xad\nligence sources and methods essential to the acquisition o f intel\xc2\xad\nligence about CBW proliferation. In part, such flexibility is avail\xc2\xad\nable because title V does not dictate the timing o f determinations\nthat would lead to sanctions against foreign persons.30\nThe legislative history to which President Bush referred appears to be a col\xc2\xad\nloquy of October 8, 1991, between Representatives McCurdy and Berman.31 Rep\xc2\xad\nresentative McCurdy was, at the time, Chair of the House Permanent Select Com\xc2\xad\nmittee on Intelligence; Representative Berman was Chair of the Subcommittee\non International Operations of the House Committee on Foreign Affairs. Because\nof its importance, the colloquy must be quoted at some length:\nMr. McCURDY . . . I would like to clarify the provisions in\nH.R. 1415 that amend the Export Administration Act and the Arms\nExport Control Act to provide for sanctions against foreign compa\xc2\xad\nnies involved in the development or production of chemical and\nbiological weapons. These provisions mandate sanctions once the\nPresident makes a determination that a foreign person has \xe2\x80\x9c know\xc2\xad\ningly and materially\xe2\x80\x9d contributed to the efforts by any foreign\ncountry to develop or use biological or chemical weapons.\nI strongly endorse this effort to sanction foreign companies\ninvolved in the proliferation o f chemical and biological weapons.\nI rise to clarify one point concerning the Presidential determinations\ncalled for in these provisions. It has come to my attention that,\nin rare circumstances, a premature determination might inhibit the\nflow of information which is necessary to the full imposition of\nsanctions against all violators. It seems to me that the President\nshould be allowed to delay such a determination where it is nec\xc2\xad\nessary to protect intelligence sources and methods which are being\n30Id. at 1345 (emphasis added).\n31 We note also that Congress had been advised in 1989, when considering earlier legislative proposals to sanction\nCBW proliferation, o f the need to protect intelligence methods and sources. Testifying before the Senate Foreign\nRelations Committee, the Director o f the Central Intelligence Agency, William Webster, answered a question from\nSenator Helms by saying, in part:\n1 think we have to find a way o f using our intelligence, protecting our sources and our methods, so\nthat we continue to collect intelligence, but to form a basis on which those laws [c]an be triggered, if\nthey are passed.\nI\ndo not mean to be too obscure in what 1 am saying. You can develop sanctions, but the proof o f\nthe sanctions will depend upon some form o f evidence, and some o f the intelligence that we have is not\nreadily convertible into evidence.\nChemical and Biological Weapons Threat: The Urgent Need for Remedies: Hearings Before the Senate Comm. on\nForeign Relations, 101st Cong. 45 (1989).\n\n317\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nused to acquire further, possibly more important, information on\nCBW proliferation.\nIs it your understanding that the protection o f intelligence sources\nor methods for the stated purpose may be a factor in deciding on\nthe timing of a Presidential determination that a foreign person is\ncontributing to CBW proliferation?\nMr. BERMAN . . . [I]t is my understanding that the President,\nin rare circumstances, could delay a determination that a foreign\nperson has knowingly and materially contributed to CBW prolifera\xc2\xad\ntion if such a delay is necessary to protect intelligence sources or\nmethods essential to the acquisition of further intelligence about\nCBW proliferation. Such a delay would be appropriate, for\nexample, where the United States is using the sensitive intelligence\nsources or methods to gather information on other CBW\nproliferators, or where additional time is needed to develop nonsen\xc2\xad\nsitive information that could be used to explain publicly the imposi\xc2\xad\ntion o f sanctions. However, such a delay should not be indefinite,\nbecause the ultimate purpose of these provisions is to sanction those\nforeign persons that w e know to be knowingly and materially\ninvolved in CBW proliferation. Moreover, the delay should only\nbe for the purpose of furthering our policy o f sanctioning those\nproliferators. A delayed determination would not be justified to fur\xc2\xad\nther any other policy.\n137 Cong. Rec. 25,841 (1991).\nVery shortly afterward, Congress enacted substantially the same chemical and\nbiological weapons provision by passing H.R. 1724 (signed into law as Pub. L.\nNo. 102-182 on December 4, 1991). On November 26, 1991, after the submission\no f the Conference Report on that legislation to the House of Representatives, Rep\xc2\xad\nresentative McCurdy inserted into the record the entirety of his October 8, 1991,\ncolloquy with Representative Berman, to clarify that the President would have\nthe same authority under H.R. 1724 to protect intelligence sources or methods\nthat he had under Pub. L. No. 102-138. See 137 Cong. Rec. 35,408 (1991).\nPresident Bush signed H.R. 1724 on December 4, 1991. In his signing statement,\nhe pointed out that \xe2\x80\x9c [t]his Act is virtually identical to Title V of Public Law\n102-138, which I signed into law on October 28, 1991,\xe2\x80\x9d and affirmed that \xe2\x80\x9c [t]he\nobservations regarding Title V of Public Law 102-138 that I made upon signing\nthat bill into law are equally applicable to the Act I am signing today.\xe2\x80\x9d 32\n32 2 Pub. Papers o f George Bush at 1544 (Dec. 4, 1991).\n\n318\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nWe believe that this legislative and administrative history establishes that Con\xc2\xad\ngress intended to give the President discretion to delay, temporarily, the making\nof \xc2\xa7 2410c determinations, when such a delay is necessary to protect intelligence\nsources or methods used to further CBW nonproliferation activities.\nWhen the Chemical and Biological Weapons Control and Warfare Elimination\nAct of 1991 was enacted into law as part of the Foreign Relations Authorization\nAct, the President\xe2\x80\x99s signing statement pointedly construed the statute, in light of\nits legislative history, to give him \xe2\x80\x9c the flexibility to protect intelligence sources\nand methods essential to the acquisition of intelligence about CBW prolifera\xc2\xad\ntion.\xe2\x80\x9d 33 Only a few weeks after the President had published this administrative\nconstruction, Congress enacted a virtually identical statute as part of the Chemical\nand Biological Weapons Control and Warfare Elimination Act of 1991, Pub. L.\nNo. 102-182. On signing the latter Act, the President reiterated the construction\nhe had placed upon its immediate precursor.34 Although Congress had the oppor\xc2\xad\ntunity to override or modify the President\xe2\x80\x99s construction, it chose instead to enact\na virtually identical measure.\nThe President\xe2\x80\x99s October 28, 1991, construction of \xc2\xa72410c is, under the par\xc2\xad\nticular circumstances of this case, authoritative. Congress was undoubtedly aware\nof this interpretation, which was prominently set forth in the President\xe2\x80\x99s signing\nstatement of that date. Moreover, the October 8, 1991, colloquy between Rep\xc2\xad\nresentative McCurdy and Representative Berman, and the republication of that\ncolloquy by Representative McCurdy on November 26, 1991, establish that Con\xc2\xad\ngress acted in the belief that the President would retain some measure of discretion\nto delay making the statutory determinations. In our judgment, Congress\xe2\x80\x99s decision\nto enact the CBW provision of Pub. L. No. 102-182 in November 1991, without\nin any way disturbing the interpretation set out by the President and by Represent\xc2\xad\natives McCurdy and Berman in October 1991, constitutes a ratification of that\ninterpretation.35\n\n33 2 Pub. Papers o f George Bush at 1345 (Oct. 28, 1991).\nM 2 Pub. Papers o f George Bush at 1543-44 (Dec. 4, 1991).\n35 See, e.g., North Haven Bd. o f Educ. v. Bell, 456 U.S. 512, 535 (1982); FEA v. Algonquin SNG, Inc., 426\nU.S. 548, 567-68, 570-71 (1976).\nMoreover, even apart from the earlier legislative and executive branch pronouncements, the President\xe2\x80\x99s December\n9, 1991, signing statement would be entitled to some weight in construing \xc2\xa7 2 4 10c. \xe2\x80\x9c The President, after all, has\na part in the legislative process, too, except as to bills passed over his veto, and his intent m ust be considered\nrelevant to determining the meaning o f a law in close cases.\xe2\x80\x9d United States v. Tharp , 892 F.2d 691, 695 (8th\nCir. 1989) (Arnold, J.). See generally The Legal Significance o f Presidential Signing Statements 17 Op. O.L.C.\n131 (1993). Reliance on a presidential signing statement may be particularly appropriate when (as here) the executive\nbranch has played a significant role in developing the legislation. See, e.g., United States v. Story, 891 F.2d 988,\n994 (2d Cir. 1989); cf. Miller v. Youakim, 440 U.S. 125, 144 (1979). As a general matter, of course, the contempora\xc2\xad\nneous construction o f a statute by the administering officials \xe2\x80\x94 in this case, the President \xe2\x80\x94 is to be accorded substan\xc2\xad\ntial deference. See, e.g.. Power Reactor Dev. Co. v. International Union o f Elec., Radio and Mach. Workers, 367\nU.S. 396, 408(1961).\n\n319\n\n\x0cO pinions o f the Office o f Legal Counsel in Volume 19\n\nV.\nWe are mindful of the fact that not all of the legislative history o f \xc2\xa7 2410c\nsupports our conclusion. We understand that the CIA made several attempts\nthrough informal communications with the House and Senate Foreign Affairs\nCommittees to include a waiver provision or other mechanism for protecting intel\xc2\xad\nligence sources and methods in the bill. These efforts ultimately were unsuccess\xc2\xad\nful.\nThough we give due weight to the fact that Congress was aware of the issue,\nthe House Foreign Affairs Committee\xe2\x80\x99s failure or refusal to include in H.R. 1415\n(or, for that matter, in the successor bill, H.R. 1724) the specific language that\nthe CIA requested does not, in our view, undercut the claim that the President\nmay temporarily delay making a determination to protect counterproliferation\nsources or methods. As the courts have said, any inferences based on congres\xc2\xad\nsional silence of this kind are highly problematic. \xe2\x80\x9c The advocacy of legislation\nby an administrative agency \xe2\x80\x94 and even the assertion of the need for it to accom\xc2\xad\nplish a desired result\xe2\x80\x94 is an unsure and unreliable, and not a highly desirable,\nguide to statutory construction.\xe2\x80\x9d American Trucking Ass\xe2\x80\x99ns v. Atchison, T. & S.F.\nRy., 387 U.S. 397, 418 (1967); see also Rastelli v. Warden, Metro. Correctional\nCtr., 782 F.2d 17, 24 n.3 (2d Cir. 1986). Moreover, the evidence indicates that\nCongress did not reject the CIA\xe2\x80\x99s concept, even if it did not write the CIA\xe2\x80\x99s\nlanguage into the bill.36 The McCurdy-Berman colloquy reflects Congress\xe2\x80\x99s intent\nin passing H.R. 1415, and we are aware of nothing in the record that contradicts\nit. Beyond that, the enactment o f H.R. 1724 after Representatives McCurdy and\nBerman had clarified the President\xe2\x80\x99s authority to protect counterproliferation\nsources or methods and after President Bush\xe2\x80\x99s October 28 signing statement had\naffirmed that he had such authority demonstrates clearly, in our view, that Con\xc2\xad\ngress accepted such an interpretation as correct.\nVI.\nAlthough we have concluded that the President has some discretion to delay\na determination under \xc2\xa72410c(a)(l), we emphasize that this discretion is not\nunlimited. In our judgment, the legislative history and administrative construction\no f the CBW Act, reviewed above, make clear that, except in extreme cir\xc2\xad\ncumstances as discussed below, the President may delay making a \xc2\xa7 2410c deter\xc2\xad\nmination only for the purpose o f advancing the counterproliferation policy of the\nstatute (and not, e.g., for other foreign policy or intelligence-related reasons). More\nspecifically, again with the exception noted below, we think that any delay is\npermissible only if the delay is necessary to protect intelligence sources or\nmethods used in counterproliferation activities. These limitations are reflected both\n36 W e note that neither H ouse o f Congress voted on and rejected the proposed language.\n\n320\n\no\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nin President Bush\xe2\x80\x99s signing statement and in the colloquy between Representatives\nMcCurdy and Berman, which apparently informed President Bush\xe2\x80\x99s interpretation\nof the statute.37\n\nVII.\nWe have also been asked to consider whether the President can delay making\na sanctions determination when no reasonable alternative means exist to protect\nthe life of an intelligence source. We conclude that he can.\nWe believe that the President has the right, and indeed the duty, to protect\nthe life of an intelligence source in such circumstances. This responsibility is\nrooted both in statutory law and in the President\xe2\x80\x99s constitutional authority to pro\xc2\xad\ntect national security.38 The President\xe2\x80\x99s obligations towards any intelligence\nsource whose life would be at risk in this case if a determination were made\nare thus in direct conflict with the President\xe2\x80\x99s obligations under the CBW Act\nnot to delay making a determination indefinitely, once the evidence establishes\nthat a violation has taken place. Faced with such unavoidably conflicting obliga\xc2\xad\ntions, we believe that the President may reasonably and lawfully conclude that\nthe obligation to preserve the life of the source should prevail.\nAs a constitutional matter, the President, as Commander in Chief, has the\ninherent authority to employ sources for gathering intelligence needed to protect\nthe national security of the United States.39 The Executive\xe2\x80\x99s authority to gather\nintelligence information, and the related authority to protect the sources and\nmethods used in gathering it,40 were codified in the National Security Act of 1947,\nch. 343, 61 Stat. 495 (codified as amended at 50 U.S.C. \xc2\xa7\xc2\xa7401-441d) (\xe2\x80\x9c NSA\xe2\x80\x9d ).\nThe NSA established the CIA and prescribed its responsibilities. In its current\nform, the statute declares that \xe2\x80\x9c the Director of Central Intelligence shall be\nresponsible for providing national intelligence . . . to the President\xe2\x80\x9d and to other\nhigh-ranking civilian and military officers in the executive branch. 50 U.S.C.\n\xc2\xa7403-3(a)(l)(A ), (B). Furthermore, the Director \xe2\x80\x9c shall . . . protect intelligence\n37 The colloquy is quoted ui full supra pp. 16-17.\n38 In situations in which the lives o f American citizens are in peril, indeed, the Supreme Court has suggested\nthat the President has a constitutional duty to rescue them. See Slaughter-House Cases, 83 U.S. (16 W all.) 36,\n79 (1872). Under the so-called Hostages Act, 22 U.S.C. \xc2\xa71732, the President also has a statutory duty in some\ncircumstances to rescue American citizens held abroad. See Worthy v. Herter, 270 F.2d 905, 910 (D.C. C ir.) cert,\ndenied, 361 U.S. 918 (1959).\n39 See Totten v. United States, 92 U.S. 105, 106 (1876) (The President \xe2\x80\x9c was undoubtedly authorized during (he\n[Civil] war, as commander-in-chief of the armies o f the United States, to employ secret agents to enter the rebel\nlines and obtain information respecting the strength, resources, and movements o f the enemy.\xe2\x80\x9d ). Warrantless Foreign\nIntelligence Surveillance\xe2\x80\x94 Use o f Television\xe2\x80\x94 Beepers, 2 Op. O.L.C. 14, 15 (1978) (The President has the \xe2\x80\x9c constitu\xc2\xad\ntional power to gather foreign intelligence.\xe2\x80\x9d ).\n40See New York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, J., joined by W hite, J.,\nconcurring) (It is the executive branch\xe2\x80\x99s \xe2\x80\x9c constitutional duty\xe2\x80\x9d to \xe2\x80\x9c protect the confidentiality necessary to carry\nout its responsibilities in the fields o f international relations and national defense.\xe2\x80\x9d ).\n\n321\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsources and methods from unauthorized disclosure.\xe2\x80\x9d Id. \xc2\xa7 403-3(c)(6). The\nDirector is specifically charged to\nprovide overall direction for the collection of national intelligence\nthrough human sources by elements of the intelligence community\nauthorized to undertake such collection and, in coordination with\nother agencies of the Government which are authorized to under\xc2\xad\ntake such collection, ensure that . . . the risks to the United States\nand those involved in such collection are minimized.\nId. \xc2\xa7 403-3(d)(2) (emphasis added).41\nIn CIA v. Sims, 471 U.S. 159 (1985), a case decided before the National Security\nAct was amended to include the language quoted immediately above, the Supreme\nCourt considered the nature and scope of the Agency\xe2\x80\x99s responsibilities to protect\nits intelligence sources. Sims was an action under the Freedom of Information\nAct (\xe2\x80\x9c FOIA\xe2\x80\x9d ) to compel the Agency to disclose the names of individual\nresearchers who had worked on an Agency-funded project. In declining to make\nsuch disclosure, the Agency relied on section 102(d)(3) of the NSA, a precursor\nof current 50 U.S.C. \xc2\xa7 403-3(c)(6). That section, formerly codified as 50 U.S.C.\n\xc2\xa7 403(d)(3), provided that the Director \xe2\x80\x9c shall be responsible for protecting intel\xc2\xad\nligence sources and methods from unauthorized disclosure.\xe2\x80\x9d NSA, \xc2\xa7 102(d)(3),\n61 Stat. at 498. The Court held that the Director was indeed authorized to withhold\nthe identities o f the researchers from disclosure under FOIA. Sims, 471 U.S. at\n177.\nIn reaching that conclusion, the Court repeatedly emphasized the breadth of\nthe Agency\xe2\x80\x99s power and responsibility to protect the identities of its sources. It\nstated that:\nCongress chartered the Agency with the responsibility of coordi\xc2\xad\nnating intelligence activities relating to national security. In order\nto carry out its mission, the Agency was expressly entrusted with\nprotecting the heart of all intelligence operations\xe2\x80\x94 \xe2\x80\x9c sources and\nmethods.\xe2\x80\x9d\nId. at 167 (footnote omitted).\nCongress vested in the Director of Central Intelligence very broad\nauthority to protect all sources of intelligence information from\ndisclosure.\n41 The duties and powers o f the Director under the National Security Act are generally subject to the control\no f the President and exercised under the President\'s authority as C hief Executive. See generally Steven G. Calabresi\nand Saikrishna B. Prakash, The President\xe2\x80\x99s Power to Execute the Laws , 104 Yale L.J 541, 595-96 (1994).\n\n322\n\n\x0cPresidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination A ct o f 1991\n\nId. at 168-69.\nCongress entrusted this Agency with sweeping power to protect its\n\xe2\x80\x9c intelligence sources and methods.\xe2\x80\x9d\nId. at 169.\nSection 102(d)(3) specifically authorizes the Director of Central\nIntelligence to protect \xe2\x80\x9c intelligence sources and methods\xe2\x80\x9d from\ndisclosure. Plainly the broad sweep of this statutory language com\xc2\xad\nports with the nature of the Agency\xe2\x80\x99s unique responsibilities. . . .\n[T]he Director must have the authority to shield those Agency\nactivities and sources from any disclosures that would unnecessarily\ncompromise the Agency\xe2\x80\x99s efforts.\nId.\nThe \xe2\x80\x9c statutory mandate\xe2\x80\x9d of \xc2\xa7 102(d)(3) is clear: Congress gave the\nDirector wide-ranging authority to \xe2\x80\x9c protec[t] intelligence sources\nand methods from unauthorized disclosure.\xe2\x80\x9d\nId. at 177 (alteration in original).\nThe Court also found substantial support in the legislative and administrative\nhistory of the Act for its view that the Director had \xe2\x80\x9c broad power to protect\nthe secrecy and integrity of the intelligence process,\xe2\x80\x9d because \xe2\x80\x9c without such\nprotections the Agency would be virtually impotent.\xe2\x80\x9d Id. at 170. It stated:\nCongress was . . . well aware of the importance of secrecy in\nthe intelligence field. Both General Vandenberg and Allen Dulles\ntestified about the grim consequences facing intelligence sources\nwhose identities became known. Moreover, Dulles explained that\neven American citizens who freely supply intelligence information\n\xe2\x80\x9c close up like a clam\xe2\x80\x9d unless they can hold the Government\n\xe2\x80\x9c responsible to keep the complete security of the information they\nturnover. . . . \xe2\x80\x9d\nAgainst this background highlighting the requirements of effec\xc2\xad\ntive intelligence operations, Congress expressly made the Director\nof Central Intelligence responsible for \xe2\x80\x9c protecting intelligence\nsources and methods from unauthorized disclosure.\xe2\x80\x9d This language\nstemmed from President Truman\xe2\x80\x99s Directive of January 22, 1946,\n11 Fed. Reg. 1337, in which he established the National Intelligence\nAuthority and the Central Intelligence Group, the Agency\xe2\x80\x99s prede-\n\n323\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ncessors. . . . The fact that the mandate of \xc2\xa7 102(d)(3) derives from\nthis Presidential Directive reinforces our reading of the legislative\nhistory that Congress gave the Agency broad power to control the\ndisclosure of intelligence sources.\nId. at 172-73 (citation omitted).\nFinally, in rejecting the court of appeals\xe2\x80\x99 position that the Agency\xe2\x80\x99s authority\nto protect sources applied only to sources who provided information unobtainable\nwithout a guarantee of confidentiality, the Court underscored the \xe2\x80\x9c harsh realities\xe2\x80\x9d\no f intelligence-gathering and the \xe2\x80\x9c dangerous consequences\xe2\x80\x9d of a more permissive\ndisclosure rule. Id. at 174.\nThis forced disclosure o f the identities of its intelligence sources\ncould well have a devastating impact on the Agency\xe2\x80\x99s ability to\ncarry out its mission. \xe2\x80\x9c The Government has a compelling interest\nin protecting both the secrecy of information important to our\nnational security and the appearance of confidentiality so essential\nto the effective operation of our foreign intelligence service.\xe2\x80\x9d\nSnepp v. United States, 444 U.S. 507, 509, n.3 (1980) (per curiam).\nSee Haig v. Agee, 453 U.S. 280, 307 (1981). If potentially valuable\nintelligence sources come to think that the Agency will be unable\nto maintain the confidentiality of its relationship to them, many\ncould well refuse to supply information to the Agency in the first\nplace.\nId. at 175.\nAs stated above, the National Security Act has been amended since Sims was\ndecided. The Intelligence Organization Act o f 1992, Pub. L. No. 102-496, \xc2\xa7\xc2\xa7701706, 106 Stat. 3180, 3188, added a new section 103 to the National Security Act.\nId. sec. 705(a), \xc2\xa7 103, 106 Stat. at 3190. New section 103(c)(6) of the NSA, see\n50 U.S.C. \xc2\xa7403-3(c)(6), states that the Director \xe2\x80\x9c shall . . . protect intelligence\nsources and methods from unauthorized disclosure.\xe2\x80\x9d Former, section 102(d)(3),\nsee 50 U.S.C. \xc2\xa7403, the provision construed in Sims, had stated in virtually iden\xc2\xad\ntical terms that the Director \xe2\x80\x9c shall be responsible for protecting intelligence\nsources and methods from unauthorized disclosure.\xe2\x80\x9d The language of the current\nstatute, if anything, demonstrates even more clearly that the Director has an\naffirmative obligation to protect sources: it states that the Director \xe2\x80\x9c shall\xe2\x80\x9d protect\nsuch sources, not that he only \xe2\x80\x9c shall be responsible\xe2\x80\x9d for their protection.42 Thus,\n42 M oreover, the legislative history of th e 1992 provision reveals that Congress was aware o f the Sims decision\nand, while not expressly ratifying it, also d id not intend to disturb it. In explaining the current provision, the House\nC onference Report stated that\nthe conferees wish to m ake clear that by including w ithin the responsibilities o f the Director of Central\nIntelligence the responsibility to protect intelligence sources and methods from unauthorized disclosure,\n\n324\n\n\x0cPresidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons\nControl and Warfare Elimination Act o f 1991\n\nwe believe that the duty to protect intelligence sources is at least as stringent\nunder the current statute as it was under its predecessor.43\nMoreover, the Intelligence Organization Act altered the National Security Act\nin another important and relevant respect. Under section 103(d)(2) o f the National\nSecurity Act, as amended in 1992, see 50 U.S.C. \xc2\xa7 403-3(d)(2), the Director is\nrequired to \xe2\x80\x98 \xe2\x80\x98ensure that. . . the risks to . . . those involved in such [intelligence]\ncollection are minimized.\xe2\x80\x9d This new language, which had no counterpart in the\nprior version o f the National Security Act, heightens the Director\xe2\x80\x99s protective\nresponsibilities towards the \xe2\x80\x9c human sources,\xe2\x80\x9d id., who are engaged in intelligence-gathering on the Agency\xe2\x80\x99s behalf.\nUnder the National Security Act, then, the President has an obligation to protect\nany intelligence source whose life would be endangered if the President deter\xc2\xad\nmined that the foreign firm that employed the source had engaged in unlawful\nCBW proliferation. The President\xe2\x80\x99s statutory responsibilities under the two statutes\nare therefore in conflict in the particular circumstances of this case.\nIn general, if the President\xe2\x80\x99s legal obligations appear to conflict, we believe\nthat his overriding duty to \xe2\x80\x9c take Care that the Laws be faithfully executed,\xe2\x80\x9d U.S.\nConst, art. II, \xc2\xa7 3 , cl. 3, requires him to attempt to discover some reasonable means\nby which the conflict could be resolved and both duties discharged. In considering\nthe possibly conflicting obligations imposed by the two statutes at issue here, due\nweight must be given to the fact that Congress was aware of the executive\nbranch\xe2\x80\x99s concern that strict compliance with the terms of the CBW Act might\ncompromise the protection of intelligence sources in some circumstances, yet\nfailed to afford the President explicit authority to delay a determination or waive\nsanctions if necessary to protect intelligence sources and methods except to the\nextent necessary to continue to gather intelligence related to the proliferation\nactivities sanctioned under the Act. That Congress afforded only a limited excep\xc2\xad\ntion for the protection of intelligence sources and methods obligates the President\nto make determinations even when there is some risk that intelligence sources\nand methods will be compromised, and to take other reasonable measures to pro\xc2\xad\ntect intelligence sources and methods from disclosure.\nWe are informed that in some circumstances, however, if the President can\nsecure the life o f the intelligence source at all, he can do so only by means that\nwould expose the lives and safety of American personnel to substantial risk. We\ndo not believe that the President\xe2\x80\x99s duty of rescue requires him to make such\nextraordinary efforts.44 Short of taking such action, however, we understand that\nthe conferees take no position with respect to the interpretation o f similar language in existing law in\nCIA v. Sims, 471 U.S. 159 (1985).\nH.R. Conf. Rep. No. 102-963, at 88 (1992), reprinted in 1992 U.S.C.C.A.N. 2605, 2614.\n43 We note that the Supreme Court considered even the prior section to be a \xe2\x80\x9c m andate.\xe2\x80\x9d Sims, 471 U.S. at 177.\n44 W hen a statute imposes a duty, it \xe2\x80\x9c authorizes by implication all reasonable and necessary m eans to effectuate\nthe duty.\xe2\x80\x9d Supremacy Clause (Art. VI, cl. 2)\xe2\x80\x94 Central Intelligence Agency\xe2\x80\x94 Polygraph Examinations o f Employee\no f CIA Contracts, 2 Op. O.L.C. 426, 427 (1978). The President could properly conclude that the risks to the lives\nContinued\n\n325\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nthe President can protect the life of the source by forbearing to make the deter\xc2\xad\nmination, otherwise required by the CBW Act, that the source\xe2\x80\x99s employer is sub\xc2\xad\nject to sanctions. There is no evidence that Congress considered the possibility\nof this extreme dilemma when it passed the CBW Act. In these highly unusual\ncircumstances, we believe that the President has the legal discretion to defer\nmaking the CBW Act determination, for so long as such a deferral is necessary\nto protect the life of the source.\n\nConclusion\nThe President may delay making CBW Act determinations if a delay is nec\xc2\xad\nessary to protect intelligence sources or methods needed to acquire intelligence\nrelating to CBW proliferation. He may also delay making such a determination\nwhen no other reasonable means exists for protecting the life of an intelligence\nsource.45\nApplication of these legal standards to particular intelligence-gathering oper\xc2\xad\nations may prove to be difficult or complex, and will undoubtedly require careful\nassessments of the specific facts in each case. Please let us know if further advice\nfrom our Office on particular applications would be helpful.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\no f the G overnm ent agents o r military personnel who would be used in a rescue attempt would make such a course\no f action unreasonable. See Durand v. Hollins , 8 F. Cas. I l l , 112 (C.C.S.D.N.Y 1860) (No. 4186) (Nelson, J.,\nsitting as C ircuit Justice) (W hether the President had a duty to protect American citizens whose lives and property\nwere threatened in a foreign tumult \xe2\x80\x9c was a public political question . . . which belonged to the executive to deter*\nm ine.\xe2\x80\x9d ).\n45 W e do not mean to exclude the possibility that the President may be legally able to delay making a determination\nin other circum stances that have not yet been presented to us for consideration.\n\n326\n\n\x0c'


b'Starting Date for Calculating the Term of an Interim United\nStates Attorney\nUnder 28 U.S.C. \xc2\xa7 546(c)(2), the 120-day term of an interim U nited States A ttorney appointed by\nthe Attorney G eneral is calculated from the date o f the appointm ent, rather than the date on which\nthe vacancy occurred.\n\nMarch 10, 2000\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nD eputy A tto rney G en era l\n\nYou have asked for our opinion whether the 120-day term of an interim United\nStates Attorney appointed by the Attorney General begins to run on the date of\nthe vacancy or on the date of the appointment. See 28 U.S.C. \xc2\xa7546 (1994).\nAlthough under a number of statutes the term of service is calculated from the\ndate of the vacancy,1 the 120-day period in \xc2\xa7 546(c)(2) is calculated from the\ndate of the appointment by the Attorney General.\nSubsection 546(a) provides that the Attorney General may, subject to certain\nlimitations, \xe2\x80\x9c appoint a United States attorney for the district in which the office\nof United States attorney is vacant.\xe2\x80\x9d Subsection 546(c), in turn, delimits the term\nduring which such a United States Attorney may serve. Under that provision, a\nUnited States Attorney appointed by the Attorney General may serve until the\nearlier of (1) the qualification of a United States Attorney appointed by the Presi\xc2\xad\ndent under 28 U.S.C. \xc2\xa7541 or (2) \xe2\x80\x9c the expiration of 120 days after appointment\nby the Attorney General under this section.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 546(c).2\nOur conclusion that the 120 days begins upon appointment by the Attorney\nGeneral is based first and foremost on the plain language of \xc2\xa7 546(c)(2). See,\ne.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (\xe2\x80\x9c Our first step in\ninterpreting a statute is to determine whether the language at issue has a plain\nand unambiguous meaning with regard to the particular dispute in the case. Our\ninquiry must cease if the statutory language is unambiguous and \xe2\x80\x98the statutory\nscheme is coherent and consistent.\xe2\x80\x99 \xe2\x80\x9d (internal citation omitted)). The 120-day\ntime period, by the terms of the statute, unambiguously begins with the Attorney\nGeneral\xe2\x80\x99s appointment: \xe2\x80\x9c the expiration of 120 days after appointment by the\nAttorney General under this section.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 546(c)(2) (emphasis added).\nThe language, moreover, is consistent with the nature of the appointment under\n\xc2\xa7 546. Unlike statutes providing for the designation of an acting officer, \xc2\xa7 546\nprovides for the appointment of a full fledged United States Attorney. See United\n1See. e.g., 5 U.S.C. \xc2\xa73346(a)(l) (Supp IV 1998) (\xe2\x80\x9c may serve in the office \xe2\x80\x94 (1) for no longer than 210 days\nbeginning on the date the vacancy occurs\xe2\x80\x9d ), 28 U.S.C \xc2\xa7992(a) (1994) (six year staggered terms for members of\nthe United States Sentencing Commission).\n2 In addition to appointment by the Attorney General, \xc2\xa7 546 provides a second mechanism for appointing an interim\nUnited States Attorney If the 120-day term o f a United States Attorney appointed by the Attorney General expires,\nthe district court \xe2\x80\x9c may appoint a United States attorney to serve until the vacancy is filled \xe2\x80\x9d 28 U .SC \xc2\xa7 546(d).\n\n31\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nStates v. Gantt, 194 F.3d 987, 999 n.5 (9th Cir. 1999) ( \xe2\x80\x9c Section 546(d) appoint\xc2\xad\n\nments are fully-empowered United States Attorneys, albeit with a specially limited\nterm, not subordinates assuming the role of \xe2\x80\x98Acting\xe2\x80\x99 United States Attorney.\xe2\x80\x9d ).\nAs a general rule, \xe2\x80\x9c when a statute provides for an [officer] to serve a term of\nyears, the specified time of service begins with the appointment,\xe2\x80\x9d except for a\nmulti-member body with staggered terms, in which case the term is calculated\nfrom the expiration of the prior term in order to maintain the stagger. Term o f\na M em ber o f the M ississippi River Commission, 23 Op. O.L.C. 123, 123 (1999).\nSince there is no issue regarding staggered terms here, the general rule would\napply.\nIn addition, while we are unaware of any cases specifically addressing when\nthe 120-day period begins, courts have generally assumed that that period is cal\xc2\xad\nculated from the date of the appointment, rather than from the date of the vacancy.\nWhen explaining that the 120-day period under \xc2\xa7 546(c)(2) has expired in par\xc2\xad\nticular cases, courts have usually identified the date on which the appointment\nwas made and the date 120 days after the appointment, without referring to when\nthe vacancy itself first arose. See, e.g., United States v. Colon-Munoz, 192 F.3d\n210, 216 (1st Cir. 1999), cert, denied, 529 U.S. 1055 (2000); In re Grand Jury\nProceedings, 673 F. Supp. 1138, 1139 (D. Mass. 1987).\nFinally, because the authority for the Attorney General to appoint a United\nStates Attorney was added to \xc2\xa7 546 as a late amendment to more general legisla\xc2\xad\ntion, there is very little legislative history on the provision. The legislative history\nthat exists, however, is consistent with the conclusion that the 120-day period\nis to be calculated from the date of the appointment, rather than from the date\nof the vacancy: \xe2\x80\x9c a person appointed by the Attorney General serves only fo r 120\ndays, or until a person appointed to the office by the President has qualified,\nif that is earlier.\xe2\x80\x9d 132 Cong. Rec. 32,806 (1986) (statement of Rep. Berman)\n(emphasis added). The focus is on the length of the interim United States Attor\xc2\xad\nney\xe2\x80\x99s service, rather than the length of time since the vacancy arose. Cf. Doolin\nSec. Sav. Bank v. Office o f Thrift Supervision, 139 F.3d 203, 209 (D.C. Cir. 1998)\n(concluding that the language of the Vacancies Act supports calculating its time\nlimits from the President\xe2\x80\x99s designation, rather than the vacancy, because the Act\nspeaks in terms of \xe2\x80\x9c how long the position may be \xe2\x80\x98filled,\xe2\x80\x99 not when the President\nmust do the filling\xe2\x80\x9d ).\nFor these reasons, we conclude that the 120-day period in \xc2\xa7 546(c)(2) is cal\xc2\xad\nculated from the date of the appointment by the Attorney General.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n32\n\n\x0c'