b"Department of Justice Funding of Representation of Victims in\nConnection with a West German Prosecution\nThe D epartm ent o f Justice m ay use its funds to pay for the representation o f non-m ilitary A m erican\nvictim s o f the hijacking of TW A F light 847, in connection with a W est G erm an prosecution, if it\nis determ ined that such representation would be in the interest o f the U nited States.\n\nJune 8, 1988\nM e m o r a n d u m O p in io n f o r t h e A c t in g A s s o c ia t e A t t o r n e y G e n e r a l\n\nThe Criminal Division has asked this Office to render an opinion concerning\nthe availability of Department of Justice funds to represent non-military Ameri\xc2\xad\ncan victims of the hijacking of TWA R ight 847, in connection with the West\nGerman government\xe2\x80\x99s prosecution of accused terrorist Mohammod Hamadei.\nUnder West German law, victims of a crime can become co-complainants\n(\xe2\x80\x9cNebenklaeger\xe2\x80\x9d) with the public prosecutor, and as such are given access to the\nprosecutor\xe2\x80\x99s files and allowed to file pleadings, make arguments, and examine\nwitnesses. As explained more fully below, we believe Department of Justice funds\nmay be made available to pay for Nebenklaeger participation in the Hamadei\nprosecution, if such participation is determined to be the interests of the United\nStates. Under the circumstances of this case, we believe that you are the appro\xc2\xad\npriate departmental official to make this determination.'\nI. Background\nMohammod Hamadei is one of several Lebanese terrorists, who in June 1985,\nhijacked TWA Flight 847, held its passengers and crew hostage, and killed U.S.\nNavy diver Robert Stethem. In January 1987, Hamadei was arrested in Frank\xc2\xad\nfurt, West Germany. The West German government denied the United States\xe2\x80\x99\nrequest for his immediate extradition on grounds that it intended itself to prose\xc2\xad\n\n1\nThe determination in this case involves important issues o f first impression, which have wide ramifications\nfor our litigating activity in foreign courts. We therefore strongly recommend that it be made at least at the level o f\nthe Associate Attorney General. This seems to us particularly necessary here in light o f the apparent position pre\xc2\xad\nviously taken by your predecessor on the general question o f the D epartment's authority to fund Nebenklaeger par\xc2\xad\nticipation in this case. See infra note 3 In making your determmation, you may wish to consult with the Civil Di\xc2\xad\nvision, which, through its Office of Foreign Litigation, has been chiefly responsible for representing the\ngovernment\xe2\x80\x99s interests in foreign courts. W e understand that the Criminal Division has already been in touch with\nthe Department o f State respecting the subject matter o f this memorandum.\n\n105\n\n\x0ccute him for offenses connected with the hijacking. The Attorney General has\nstated publicly on numerous occasions that the Department of Justice is com\xc2\xad\nmitted to doing everything possible to ensure that Hamadei is convicted on all\ncharges and receives the maximum sentence possible. We understand that his\ntrial has now been scheduled to begin on July 5.\nThe question of this Department\xe2\x80\x99s ability to participate in or support the West\nGerman government\xe2\x80\x99s prosecution of Hamadei first arose last summer. In a let\xc2\xad\nter dated August 17,1987 Associate Attorney General Stephen S. Trott informed\nthe General Counsel of the Department of Defense that under West German court\nprocedure the United States government itself would not be permitted to inter\xc2\xad\nvene directly in the West German criminal case.2 Moreover, he stated that the\nDepartment of Justice did not appear to be authorized to fund individual victims\xe2\x80\x99\nNebenklaeger participation.3 M r. Trott\xe2\x80\x99s letter also stated that the Department\nbelieved the Secretary of Defense had authority to fund such participation by the\nmilitary victims of the hijacking under 10 U.S.C. \xc2\xa7 1037,4 and recommended that\nthis be done. We understand that the Department of Defense has agreed to pro\xc2\xad\nvide $300,000 for Nebenklaeger participation by the military personnel who were\npassengers on TWA Flight 847, as well as the parents of Mr. Stethem. A Ger\xc2\xad\nman attorney, Dr. Rainer Hamm, has been retained for this purpose.5\nThe question of this Department\xe2\x80\x99s ability to contribute to the funding of Neben\xc2\xad\nklaeger participation in this case has arisen again because the Criminal Division\nhas apparently determined that Dr. Hamm\xe2\x80\x99s ability effectively to assist the\nHamadei prosecution would be enhanced if he were able to represent at least some\nof the non-military American victims of the hijacking as well. Because the De\xc2\xad\npartment of Defense has authority to fund only the representation of military per\xc2\xad\nsonnel, alternative sources would have to be found to pay the additional expense\nof extending Dr. H am m \xe2\x80\x99s representational role.\n\n2 This conclusion was apparently based upon inquiries made in West Germany by the Civil Division\n3 His tentative conclusion appears to have been based upon informal advice received from the Chief o f the Crim\xc2\xad\ninal D ivision\xe2\x80\x99s General Litigation and Legal A dvice Section, based on a construction o f 28 U.S.C. \xc2\xa7 516. See rout\xc2\xad\ning and transmittal slip from Lawrence Lippe to Deputy Assistant Attorney General Toensing and Associate At\xc2\xad\ntorney General Trott, dated August 3, 1987 M r. Lippe addressed the question of the Department\xe2\x80\x99s authonty more\nformally in M arch o f this year, and concluded again that the Attorney General had no authonty under 28 U.S C. \xc2\xa7\xc2\xa7\n516-519 to fund Nebenklaeger participation in the Hamadei prosecution. See M r Lippe\xe2\x80\x99s Memorandum of March\n16, 1988 to Ms. Toensing. In a memorandum sent the same day to the General Counsel of the Justice Management\nDivision, Ms Toensing inquired whether Department funds were available to fund Nebenklaeger participation.\nJM D \xe2\x80\x99s response, dated A pnl 20, 1988, was that funds could be expended under authonty of 28 U.S.C. \xc2\xa7 516 if it\ncould be determined that \xe2\x80\x9crepresenting pnvate citizens in a foreign tnbunal is the type o f interest encompassed un\xc2\xad\nder [section 516].\xe2\x80\x9d JM D disclaim ed an ability to make such a determination in this case because of its unfamiharity with the facts, and advised that the matter should be sent to this Office for construction Ms. Toensing forwarded\nthe matter here on M ay 4.\n4 Section 1037 authorizes the Secretary o f Defense to employ counsel and pay any expenses incident to the rep\xc2\xad\nresentation o f military personnel before foreign judicial tnbunals and administrative agencies.\n5 The relationship between a NebenkJaeger participant and his or her attorney under West German law is not\nclear to us In particular, we do not understand their respective roles in making litigation decisions We do not know\nwhether there are in this case any specific arrangements between Dr. Hamm and the Department o f Defense in this\nregard (or, indeed, w hether under applicable W est German law any such arrangements could be made in deroga\xc2\xad\ntion o f the Nebenklaeger client\xe2\x80\x99s wishes)\n\n106\n\n\x0cII. Department of Justice Authority to Fund Nebenklaeger Participation\nin the Hamadei Prosecution\nUnder 28 U.S.C. \xc2\xa7 516, the Department of Justice has general authority to \xe2\x80\x9ccon\xc2\xad\nduct\xe2\x80\x9d litigation in which the United States is a party \xe2\x80\x9cor is interested.\xe2\x80\x9d6 Along\nwith the several provisions immediately following it in the Code, section 516 has\nbeen regarded as providing authority for.the Attorney General to attend to the in\xc2\xad\nterests of the United States in any court-, including foreign tribunals. See Litiga\xc2\xad\ntion Responsibility of the Attorney General in Cases in the International Court\nof Justice, 4 Op. O.L.C. 233 (1980). Moreover, using his general authority to con\xc2\xad\ntract for services that are necessary to the performance of his statutory functions,\nthe Attorney General may hire private lawyers to do indirectly what it would be\nawkward or inappropriate for the United States to do directly through depart\xc2\xad\nmental lawyers. See Memorandum for Edward C. Schmults, Deputy Attorney\nGeneral, from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: Civil Division\xe2\x80\x99s Recommendations Concerning Reimbursement of\nLegal Expenses (June 24, 1981); Memorandum for Glen E. Pommerening, As\xc2\xad\nsistant Attorney General for Administration, from Antonin Scalia, Assistant At\xc2\xad\ntorney General, Office of Legal Counsel, Re: Authority for Employment of Out\xc2\xad\nside Legal Counsel (Mar. 4, 1976). The Attorney General\xe2\x80\x99s authority to hire\nforeign counsel to represent the interests of the United States in the courts of a\nforeign country is explicitly recognized in 28 U.S.C. \xc2\xa7 515(b).7\nApplying the above principles to this case, we believe that the Department may\nuse its funds to pay Dr. Hamm to represent victims of the hijacking, if it is de\xc2\xad\ntermined that such representation would be \xe2\x80\x9cin the interests\xe2\x80\x9d of the United States.8\nSuch a determination necessarily involves an analysis of the facts and circum\xc2\xad\nstances involved in this case, and we can therefore give you only general guid\xc2\xad\nance as to factors that might properly be considered. One thing seems clear to us,\nhowever: the existence vel non of a governmental interest in this case should not\ndepend on the fact that the counsel we retain will technically be representing a\nprivate party, as opposed to the United States government itself. Particular pro\xc2\xad\ncedural rules imposed by a foreign court will perforce dictate the manner in which\nthe United States expresses its interest in a particular case, and the Department\xe2\x80\x99s\nability to represent that interest cannot be made dependent upon the restrictions\nimposed upon our appearance by particular foreign courts. Here the United States\napparently is precluded by West German court rules from expressing its interest\ndirectly in a criminal prosecution, so that we can support the prosecution only\n\n6 Section 516 provides in full as follows\xe2\x80\x99\nExcept as otherwise authorized by law, the conduct o f litigation in which the United States, an\nagency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to of\xc2\xad\nficers of the Department o f Justice, under the direction o f the Attorney General.\n7 Under section 515(b), \xe2\x80\x9cforeign counsel\xe2\x80\x99*retained by the Attorney General in \xe2\x80\x9cspecial cases\xe2\x80\x9d are not required\nto take an oath o f office.\n8 The Criminal Division\xe2\x80\x99s request to us did not extend to which particular sources o f departmental funds might\nbe available to pay for Nebenklaeger participation, and we express no views on this issue.\n\n107\n\n\x0cthrough representation of a victim. Despite the vehicle through which we are con\xc2\xad\nstrained to express it, however, the relevant interest remains that of the United\nStates.9\nThat said, there remains the question whether the Department\xe2\x80\x99s funding of\nNebenklaeger participation by non-military victims in this particular case would\nin fact serve the interests of the United States. While a court would almost cer\xc2\xad\ntainly defer to an executive decision maker in this context,10 there are at the same\ntime no clear legal standards to guide that decision maker. At bottom, the exis\xc2\xad\ntence of a governmental interest adequate to support Department of Justice fund\xc2\xad\ning in this case depends upon two things: the strength of our government\xe2\x80\x99s de\xc2\xad\nsire to combat international terrorism and to ensure the safety of American\ncitizens overseas by any means available to it (and by this means in particular);\nand the extent to which further support by this Department for the Hamadei pros\xc2\xad\necution is likely to serve these goals.\nAs to the first of these considerations, we express no views.11 As to the sec\xc2\xad\nond, we would offer the following observations. The Department of Defense\xe2\x80\x99s\ndecision to provide governmental funding to support the Hamadei prosecution\nmay or may not have been based on a determination that this would be in the in\xc2\xad\nterests of the United States, as opposed to the personal interests of the military\nvictims and their families.12 If, upon inquiry, it develops that the representation\npresently being funded by Defense is perceived as serving the interests of the\nUnited States, and does in fact do so, the question would then arise whether fur\xc2\xad\nther funding of the prosecution by this Department would serve some additional\ninterest of the United States. In this regard, it would be relevant whether and to\nwhat extent Dr. Hamm\xe2\x80\x99s proposed representation of the non-military victims is\n\n9 In a similar situation last year, the U nited States was permitted to intervene directly, as a partie civile, in the\nFrench governm ent\xe2\x80\x99s prosecution of Lebanese terrorist Georges Ibrahaim Abdallah for the murder of Lt. Col Charles\nRay, an Assistant Military Attache at the U .S. Embassy in Paris. The Department paid a French attorney to repre\xc2\xad\nsent its interests in connection with this prosecution, as well as those of the U.S. Consul General m Strasbourg, who\nhad survived the terrorist attack. The Department o f Defense paid this same attorney to represent the interests of\nLt. Col. R ay\xe2\x80\x99s widow, under authonty of 10 U.S.C. \xc2\xa7 1037. See Memorandum for Stephen S. Trott, Associate At\xc2\xad\ntorney General, from Victoria Toensing, D eputy Assistant Attorney General, Criminal Division (July 2, 1987).\n10 W e do not believe that such cases in U nited States v City o f Philadelphia, 644 F 2d 187 (3d Cir. 1980) (en\nbanc), and U nited States v. Solomon, 563 F .2d 1121 (4th Cir. 1977) are relevant in this situation. These cases ad\xc2\xad\ndressed the governm ent\xe2\x80\x99s standing to sue as a jurisdictional m atter and did not purport to limit the government\xe2\x80\x99s\ndiscretion under 28 U.S.C. \xc2\xa7 516 Both cases involved the federal government\xe2\x80\x99s authority to initiate legal action in\nfederal court to vindicate the rights of individuals, in areas that have traditionally been reserved to the States. The\n\xe2\x80\x9c public interest\xe2\x80\x9d asserted by the Executive as justification for the exercise o f federal power in those cases was thus\nsubject not only to the recognized limits on the jurisdiction o f federal courts, but also to the powerful counterweight\no f federalism. No sim ilar countervailing considerations are present in this case.\n11 W e do not believe the federal government\xe2\x80\x99s participation in a foreign criminal justice system which expressly\nprovides for participation o f private prosecutors, in furtherance o f its interest in combating international terrorism\nand protecting its citizens abroad, suggests anything about the appropriateness of allowing pnvate prosecutors to\ncontrol o r participate in criminal prosecutions in our own federal courts. C f B nef for the United States as Amicus\nC unae in M orrison v. Olson, 487 U S. 654 (1988) at 37 and n 31.\n12 10 U.S.C. \xc2\xa7 1037 appears on its face to authonze representation of military personnel in foreign tnbunals\nwithout regard to w hether such representation would serve any interest o f the United States We do not know gen\xc2\xad\nerally how the Department o f Defense has interpreted its authonty under this provision, or what specific factors\nw ere considered in making the decision to provide funding in this particular case.\n\n108\n\n\x0cin fact likely to enhance his ability to support the prosecution through his exist\xc2\xad\ning representation of the military victims.13 You may also wish to consider the\ndegree of control the Department can expect to exercise over the proposed rep\xc2\xad\nresentation.14 The fact that the individuals whose representation we would be\nfunding are American citizens, and the apparent impossibility of their recover\xc2\xad\ning damages or receiving any other personal benefit from their participation as\nNebenklaeger, would tend to support amargument that the representation would\nserve the interests of the United States.rf0 n the other hand, especially in light of\nthe fact that our funds are not unlimited, you may deem it more cost effective to\npursue other means of combatting terrorism in this case (such as eventual further\npursuit of our extradition efforts).\nTo assist you in making your determination, you may wish to ask the Crimi\xc2\xad\nnal Division to provide you with further information relating to the efficacy of\nthe additional representational activity for which funding is being sought, and on\nthe extent to which the Department will be able to control Dr. Hamm\xe2\x80\x99s actions.\nJ o h n O. M c G i n n i s\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n13 We are aware o f only one specific way in which representation o f the non-military victims will add to what\nDr. Hamm can accomplish under the existing arrangement with the Department o f Defense, he will be able to in\xc2\xad\nterview and prepare those non-military victims who he represents prior to their being called as witnesses. See Toens\xc2\xad\ning Memorandum to JMD, supra note 3 The Criminal Division has also suggested more generally that Dr. H am m \xe2\x80\x99s\nrole in the case would be made more \xe2\x80\x9cprominent\xe2\x80\x9d if he could represent more victims. We are not entirely sure what\nconnection there might be between the prominence of Dr Hamm\xe2\x80\x99s role in the case and his ability effectively to rep\xc2\xad\nresent the interests o f the United States.\n14 For example, we do not know to what extent Dr Hamm\xe2\x80\x99s responsibility to his Nebenklaeger clients would\npreclude his taking direction from officials o f the U.S. government that is paying his fees, in the event there were\nsome difference o f opinion as to the best way to proceed. Nor do we know whether the U S. government could con\xc2\xad\ntrol or countermand a decision by some or even all o f the Nebenklaeger complainants to discontinue their partici\xc2\xad\npation in the prosecution The decision to fund representation in this case is thus quite different from that involved\nin the Abdullah prosecution in France, see supra note 4, in which the United States itself was a party and could thus\nensure that the pnvate counsel it had retained represented its interests in the proceeding. As noted above, see supra\nnote 5, we do not know what if any arrangements the Department o f Defense has made or could make with Dr.\nHamm to ensure his carrying out the interests of the United States, if it differed from the interests o f his individual\nNebenklaeger clients. While the Defense Department may have some greater degree of control over some of the\nNebenklaeger clients now being represented by virtue o f their current military status, not all of these individuals\nare now subject to military discipline.\n\n109\n\n\x0c"


b'VISA Fraud Investigation\nA lthough facially a violation of applicable statutes, the State Departm ent may issue a visa to an\nineligible alien in order to facilitate an undercover operation conducted by the Immigration\nand N aturalization Service. Undercover operations often involve facially illegal conduct by\ngovernm ent officers, but courts have not held such conduct to be illegal if it is necessary to\nsecure a perm issible law enforcement objective.\n\nNovember 20, 1984\nM\n\nem orandum\n\nO\n\nI m m ig r a t io n\n\np in io n f o r t h e\nand\n\nG eneral Co un sel,\n\nN a t u r a l iz a t io n S e r v ic e\n\nThis responds to your request for our opinion on whether the Department of\nState may issue a visa to an ineligible alien in order to facilitate an undercover\noperation being conducted by the Immigration and Naturalization Service\n(INS). We believe that the Department of State may issue the visa.\nI. Background\nINS is presently conducting an undercover operation to investigate individu\xc2\xad\nals suspected of paying American citizens to enter into sham marriages with\naliens.1 INS has focused on a group suspected of smuggling into the United\nStates large numbers of aliens who then enter into sham marriages. In order to\ninfiltrate the group, INS has persuaded an American citizen who has admitted\nentering into a sham marriage to cooperate with the INS. The individual has\nfiled a visa petition on behalf of his putative wife. The petition has been\napproved by the INS and forwarded to the American consul in Canada for\nprocessing. As explained by INS officials, the approval of the petition and\nissuance of the visa will enable the individual to win the confidence of the\nsuspects:\nThe objective is to have both the alien and the United States\ncitizen spouse, a cooperating private individual (CPI), travel to\n[Canada] so that in addition to obtaining the visa, the CPI would\n1O nce m arried to the A m erican citizen, the alien is eligible to receive a resident visa.\n\n284\n\n\x0cmeet with additional conspirators and gain their confidence by\nletting them know that the visa had been successfully issued.\nOnce the visa was issued, it would be taken from the alien at\nthe port of entry and the alien would be issued a Form 1-94\nindicating entry and the pending issuance of a Form 1-551, as is\nnormal procedure. The visa would then be retained as evidence\nby the United States Attorney\xe2\x80\x99s Office, and be returned eventu\xc2\xad\nally to the Department of State.\nMemorandum for Maurice C. Inman, Jr., General Counsel, INS, from John F.\nShaw, Assistant Commissioner for Investigations, INS (Oct. 23, 1984). When\nthe individual and his wife return to the United States, it is hoped that the\nsuspects, having been assured of the individual\xe2\x80\x99s reliability, will ask him to\nrecruit others, thereby allowing infiltration by INS and eventual prosecution.\nThe Department of State has declined to issue the visa necessary for the\noperation to proceed, and has raised the question whether issuance of the\nnecessary visa would violate 8 U.S.C. \xc2\xa7 1201(g)(3), which provides that \xe2\x80\x9c[n]o\nvisa. . . shall be issued to an alien i f . . . the consular officer knows or has reason\nto believe that such alien is ineligible.\xe2\x80\x9d Because the American consul knows the\nalien in this case has entered into a sham marriage, the Department of State will\nnot issue the visa unless this Office opines to the contrary.\nII. Analysis\nGovernment law enforcement efforts frequently require the literal violation\nof facially applicable statutes. One obvious example would involve police\nofficers who must exceed the applicable speed limit in order to catch a speeder\nor an escaping criminal. In order to explain why such law enforcement activity\ndoes not violate the law, the courts have construed prohibitory laws as inappli\xc2\xad\ncable when a public official is engaged in the performance of a necessary public\nduty. In reaching this conclusion, some courts have focused on legislative\nintent, reasoning that these statutes do not apply \xe2\x80\x9cwhere public officers are im\xc2\xad\npliedly excluded from language embracing all persons [because] a reading which\nwould include such officers would work obvious absurdity as, for example, the\napplication of a speed law to a policeman pursuing a criminal or the driver of a\nfire engine responding to an alarm.\xe2\x80\x9d Nardone v. United States, 302 U.S. 379,\n384 (1937) (footnote omitted). Other courts have simply referred to the basic\nprinciple that action by public officials that would otherwise violate a statutory\nprohibition is justifiable if it is necessary to achieve a legitimate government\nobjective and is done in a reasonable fashion.2 Thus, the courts have held\n\n2 This principle appears to be derived from the com m on law defense o f necessity. W. LaFave & A. Scott,\nH andbook on C rim inal Law 381 n .l (1972). The federal case law is not w ell-developed, \xe2\x80\x9cprobably because\ncommon sense usually prevents a prosecution in such a case.\xe2\x80\x9d K. Sears & H. W eihofen, M a y\xe2\x80\x99s Law o f Crimes\n\xc2\xa7 6 0 , at 68 (4th ed. 1938).\n\n285\n\n\x0cinapplicable not only speeding laws,3 but virtually the entire spectrum of civil4\nand criminal law.5\nThe case law is nevertheless relatively sparse since few states or cities\nprosecute their law enforcement officers for their activities and, therefore, the\ndefense of official conduct seldom needs to be raised.6 However, defendants\nchallenging their convictions have often argued that the government\xe2\x80\x99s activity\nviolated a law and that the defendant\xe2\x80\x99s conviction is therefore invalid. The\ncourts have almost uniformly rejected these challenges, noting that it is often\nnecessary for law enforcement officers to engage in otherwise illegal conduct in\norder to catch criminals. This is especially true in undercover operations, as the\nSupreme Court has recognized. For example, in United States v. Russell, 411\nU.S. 423,430 (1973), a defendant challenged his conviction for manufacturing\nPCP on the grounds that the government\xe2\x80\x99s undercover involvement, including\ncontributing one of the major ingredients, was so outrageous that it violated the\nDue Process Clause. The Supreme Court rejected the argument, stating that the\nundercover agent did not \xe2\x80\x9cviolate any federal statute or rule or commit any\ncrime, in infiltrating the . . . drug enterprise.\xe2\x80\x9d Id. at 430.\nIn order to obtain convictions for illegally manufacturing\ndrugs,.. . law enforcement personnel have turned to one of the\nonly practical means of detection: the infiltration of drug rings\nand a limited participation in their unlawful present practices.\nSuch infiltration is a recognized and permissible means o f inves\xc2\xad\ntigation-, if that be so, then the supply of some item of value that\n\nthe drug ring requires must, as a general rule, also be permis\xc2\xad\nsible. For an agent will not be taken into the confidence of the\nillegal entrepreneurs unless he has something of value to offer\nthem.\nId. at 433 (emphasis added). Thus, the Supreme Court recognized that under\xc2\xad\ncover operations often involve technically illegal conduct by government offic\xc2\xad\ners and approved that conduct because it is necessary to secure the law enforce\xc2\xad\nment objective.7 A few years later, the Court rejected attempts to read Russell\n3 W arren Petroleum Co. v. Thomasson, 265 F.2d 5, 10 (5th Cir. 1959); Lilly v. West Virginia, 29 F.2d 6 1 ,6 4\n(4th C ir. 1928); C ity o f N orfolk v. M cF arland, 145 F.Supp. 258, 260 (E.D . Va. 1956); State v. Sw ift, 143 A.2d\n114, 115 (N .H . 1958).\n4 State o f M ontana v. C hristopher, 3 4 5 F. Supp. 60, 61 (D. Mont. 1972) (operating trailer w ithout lights);\nState v. K n o xville, 80 T enn. 146(1883) (open field burning by city officials not a nuisance when necessary to\nprevent spread o f disease).\n5 S ta te v. E m erson, 517 P .2d 2 4 5 ,2 4 7 (W ash. Ct. App. 1974) (accepting services o f prostitute) (\xe2\x80\x9c Practical\nconsiderations require that, in the perform ance by police o f crim e detection duties, at least som e deceitful\npractices an d \xe2\x80\x98a lim ited participation\xe2\x80\x99 in unlaw ful practices be tolerated and recognized as law ful.\xe2\x80\x9d); State v.\nTorphy, 78 M o. App. 206 (1899) (gam bling).\n6 S ee S ears & W eihofen, supra note 2 ; D ix, \xe2\x80\x9cU ndercover Investigations and Police R ulem aking,\xe2\x80\x9d 53 Tex. L.\nR ev. 2 0 3 ,2 8 4 -8 6 (1 9 7 5 ).\n7 The C o u rt indicated th at there m ig h t be a situation in which the G overnm ent\xe2\x80\x99s involvem ent was so\noutrageous that it w ould offend due pro cess principles, but \xe2\x80\x9cthe instant case is not o f that breed.\xe2\x80\x9d United\nStates v. R u ssell, 411 U .S. a t 432. Nor h a s the C ourt found such a case since Russell.\n\n286\n\n\x0cnarrowly when it affirmed a conviction in which the government had allegedly\nsupplied the heroin which the defendant was charged with selling. Hampton v.\nUnited States, 425 U.S. 484 (1976). Even though heroin is contraband and its\npossession is \xe2\x80\x9cillegal and constituted the corpus delicti for the sale of which the\npetitioner was convicted,\xe2\x80\x9d the Court rejected the argument that the Government\xe2\x80\x99s\ninvolvement \xe2\x80\x9cdeprived defendant of any right secured to him by the Constitu\xc2\xad\ntion.\xe2\x80\x9d 425 U.S. at 489, 490-91 (Rehnquist, J.) (plurality opinion). \xe2\x80\x9cGovern\xc2\xad\nment participation ordinarily will be fully justified in society\xe2\x80\x99s \xe2\x80\x98war with the\ncriminal classes.\xe2\x80\x99\xe2\x80\x9d Id. at 495 (Powell, J., concurring) (citation omitted).8 Since\nHampton, the courts of appeal have explicitly and repeatedly upheld a variety of\nundercover techniques that technically violate a variety of civil and criminal statutes\nbut whose use has been deemed necessary to particular undercover operations.9\nConclusion\nWe believe, therefore, that the courts have recognized that it is generally\nlawful for law enforcement agents to disregard otherwise applicable law when\ntaking action that is necessary to attain the permissible law enforcement objec\xc2\xad\ntive, when the action is carried out in a reasonable fashion,10 and when the\naction does not otherwise violate the Constitution.11 Pursuant to this general\nprinciple, this Office has repeatedly advised various agencies, including the\nDepartment of State, that the use of false documents in particular undercover\noperations is legal. See, e.g., Memorandum for Roberts B. Owen, Legal Ad\xc2\xad\nviser, Department of State, from John M. Harmon, Assistant Attorney General,\nOffice of Legal Counsel (July 3, 1980) (regarding issuance of false passports).\n8 B oth Justice R ehnquist and Justice Powell recognized that governm ent involvem ent in otherw ise illegal\nactivities may at som e point go beyond w hat is necessary and becom e punishable. 425 U.S. at 49 0 -9 1 ; id. at\n494 nn.5 & 6. Justice R ehnquist noted that \xe2\x80\x9cI f the police engage in illegal activity in concert w ith a defendant\nbeyond the scope o f their duties the remedy lies, not in freeing the equally culpable defendant, but in\nprosecuting the police under the applicable provisions o f state o r federal law .\xe2\x80\x9d Id. at 490. Justice Powell felt\nthat there should be som e lim iting principle on governm ent involvem ent in crim e, but did not believe it was\nnecessary to develop the principle in Hampton. Id at 494 nn.5 & 6. O ne principle that might be used is to\nperm it acts that involve malum prohibitum , such as possession o f contraband or obtaining false birth\ncertificates, but to forbid activities that involve malum in se , such as hom icide and assault.\n9 See, e.g.. U nited States v. G am ble, 737 F.2d 853, 854, 858 (10th Cir. 1984) (postal workers obtained false\ndrivers licenses, filed false accident reports, obtained insurance and registered cars under false names, pled\nguilty to nonexistent traffic violations and filed false claim s w ith insurance com panies); U nited States v.\nBeverly, 723 F.2d 11, 12 (3d Cir. 1983) (governm ent supplied gasoline and disguises to arsonist); U nited\nStates v. M cCown, 711 F.2d 1441, 1449 50 (9th Cir. 1983) (governm ent supplied marijuana); U nited States v.\nRom ano, 706 F.2d 370, 372 (2d Cir. 1983) (governm ent supplied heroin); U nited States v. K hatib, 706 F.2d\n213, 217 (7th Cir. 1983) (governm ent sold unregistered firearm s); U nited States v. N orton, 700 F.2d 1072,\n1076 (6th Cir.) (governm ent supplied explosives for bom b), cert, denied, 461 U.S. 910 (1983); U nited States\nv. Gianni, 678 F.2d 9 5 6 ,9 5 8 (11 th C ir.) (governm ent sold over 1000 pounds o f m arijuana), cert, denied, 459\nU.S. 1071 (1982); U nited States v. Parisi, 674 F.2d 126, 127 (1st Cir. 1982) (governm ent sold food stam ps at\nillegal discount).\n10 Thus, a police o fficer may speed but the court will evaluate w hether, under the circum stances, he\nexercised reasonable care for the safety o f third parties. State v. Sw ift, 143 A.2d 1 1 4 ,115(N .H . 1958); Edberg\nv. Johnson, 184 N.W . 12, 13 14 (M inn. 1921).\n11 U nited States v. U nited States D istrict C ourt, 407 U.S. 297 (1972); Lewis v. U nited States, 385 U.S. 206,\n209 (1966); Zweibon v. M itchell, 516 F.2d 594 (D.C. Cir. 1975), cert, d enied , 425 U.S. 944 (1976).\n\n287\n\n\x0cIn the instant case, there is nothing in the language of 8 U.S.C. \xc2\xa7 1201(g)(3)\nthat suggests that Congress intended to restrict the use of visas in undercover\noperations. Moreover, the ultimate objective of \xc2\xa7 1201(g) to prevent manipula\xc2\xad\ntion of the visa process will not be frustrated by this operation. Rather, as in\nmany undercover operations, the Government\xe2\x80\x99s activity will involve \xe2\x80\x9climited\nparticipation\xe2\x80\x9d in the methods of suspected criminals in order to achieve the\nultimate objective of ending the criminal behavior. Russell , 411 U.S. at 433.\nAccordingly, we conclude that the issuance of a visa by the Department of State\nis necessary for the operation to proceed; that the issuance under the circum\xc2\xad\nstances described \xe2\x80\x94 for a limited purpose and under close supervision \xe2\x80\x94 is\nreasonable; and that the issuance of the visa is, therefore, legal notwithstanding\nthe language in 8 U.S.C. \xc2\xa7 1201(g).\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n288\n\n\x0c'


b"January 27, 1977\n\n78-73 MEMORANDUM OPINION FOR THE DEPUTY\nCOUNSEL TO THE PRESIDENT\nHatch Act (5 U.S.C. \xc2\xa7 7324)\xe2\x80\x94Membership of\nWhite House Staff Member on Democratic\nNational Committee\nYou have orally asked for our views as to whether a White House Staff\nmember may lawfully continue to be a member of the Democratic National\nCommittee. Insofar as we have been able to ascertain, our office has not\npreviously been asked to examine such a question It is our conclusion that such\nmembership would not violate any statutory restriction but that a question exists\nunder applicable Standards of Conduct.\nThe only relevant statutory restriction of which we are aware is the Hatch\nAct. It provides in pertinent part:\n(a) An employee in an Executive agency or an individual employed\nby the government of the District of Columbia may not\xe2\x80\x94\n(1) use his official authority or influence for the purpose of\ninterfering with or affecting the result of an election; or\n(2) take an active part in political management or in\npolitical campaigns. [5 U.S.C. \xc2\xa7 7324(a).]\nUnder Civil Service Commission regulations, membership on the national\ncommittee of a political party is prohibited by subsection (2) of this provision.\nSee 5 CFR 733.122(b)(1). However, the Hatch Act contains an exception\nproviding that subsection (a)(2), quoted above, does not apply, inter alia, to\n\xe2\x80\x9c an employee paid from the appropriation for the office of the President.\xe2\x80\x9d 5\nU.S.C. \xc2\xa77324(d)( 1).1 Anyone whose salary is paid from funds appropriated\nfor salaries and expenses of the White House Office under the Executive Office\nAppropriations Act of 1977, 90 Stat. 966, is covered by this exception, and his\nmembership on the Democratic National Committee would therefore not be in\nviolation of the Hatch Act.\n'The exception does not extend to the prohibition in subsection (a)( I) against the use of official\nauthority or influence for the purpose of interfering with or affecting the result of an election.\n\n324\n\n\x0cIn addition to the statutory restriction, the propriety of membership on the\nDemocratic National Committee should be considered in light of the Standards\nof Conduct applicable to agencies in the Executive Office of the President. See\n3 CFR, Chapter I, Part 100.2 \xe2\x80\x9c Agency\xe2\x80\x9d is defined to include the White House\nOffice. 3 CFR 100.735-2(a). The Standards of Conduct were issued in\ncompliance with Executive Order 11222, 3 CFR 306 (1965), and Civil Service\nCommission regulations implementing that order. See 5 CFR, Part 735.\nOutside activities of employees of the Executive Office of the President are\nspecifically governed by 3 CFR 100.735-15. Subsection (a) of this provision\nstates that an employee may not engage in any outside activity \xe2\x80\x9c not compatible\nwith the full and proper discharge of the duties and responsibilities of his\nGovernment employment.\xe2\x80\x9d However 3 CFR 100.735-15(d)(2) provides that\nnothing in section 100.735-15 or 100.735-14 (dealing with the acceptance of\ngifts, gratuities, and entertainment) precludes an employee from \xe2\x80\x9c [participa\xc2\xad\ntion in the activities of national or State political parties not proscribed by\nlaw.\xe2\x80\x9d The reference to political activities proscribed by laws is to the Hatch\nAct, discussed above. See 3 CFR 100.735-22(o). Because the Hatch Act does\nnot prohibit a person employed in the White House from being a member of the\nDemocratic National Committee, such membership is not prohibited by the\nregulations governing outside activities and receipt of gratuities either.\nThe exception in the regulations just discussed, permitting certain political\nactivities, does not apply to other provisions of the Executive Office\xe2\x80\x99s\nStandards of Conduct. One other section of the Standards of Conduct that\nshould be considered is 3 CFR 100.735.4(c), which provides:\nAn employee shall avoid any action, whether or not specifically\nprohibited by this subpart, which might result in, or create the\nappearance of:\n(1) Using public office for private gain;\n(2) Giving preferential treatment to any person;\n(3) Impeding Government efficiency or economy;\n(4) Losing complete independence or impartiality;\n(5) Making a Government decision outside official channels; or\n(6) Affecting adversely the confidence of the public in the integrity\nof the Government.\nThese standards are necessarily general and are difficult to apply with precision\nin any particular case. However, it may be suggested that membership of a\nperson employed in the White House on the national committee of a political\nparty could give rise to problems of appearances under a number of these\nsubsections.\nThe public no doubt expects persons on the President\xe2\x80\x99s staff to be political to\nthe extent of being loyal to the President\xe2\x80\x99s policies and partisan endeavors. But\n2The Standards of Conduct were previously codified in Chapter V of 3 CFR. See 40 F.R. 24993\n(1975).\n\n325\n\n\x0cit can be supposed that the public at the same time expects a certain\nindependence of the President\xe2\x80\x99s top advisers that could be, or at least appear to\nbe, compromised by a close official connection to partisan political activities.\nIn the language of the regulation just quoted, membership on the national\ncommittee of a political party might perhaps engender the appearance of\n\xe2\x80\x9c giving preferential treatment\xe2\x80\x9d to certain groups or \xe2\x80\x9c losing complete inde\xc2\xad\npendence or impartiality\xe2\x80\x9d in one\xe2\x80\x99s official duties and thereby \xe2\x80\x9c affecting\nadversely the confidence of the public in the integrity of the Government.\xe2\x80\x9d\nThis appearance might result from the possibility that the individual would be\nin a position to influence governmental decisions unduly so as to favor the\npolicy or institutional interests of the Democratic Party as opposed to the\nRepublican Party or other groups3 or that he would favor the Democratic\nParty\xe2\x80\x99s interests rather than the President\xe2\x80\x99s if a difference of opinion developed\nbetween the two. Moreover, membership of a White House staff member on\nthe committee could conceivably give rise to the impression that important\ngovernmental decisions were being made by the committee rather than the\nWhite House, and therefore that they were being made \xe2\x80\x9c outside official\nchannels.\xe2\x80\x9d\nThe decision on a question of appearances such as this necessarily depends to\na certain degree on the public\xe2\x80\x99s perception of an employee\xe2\x80\x99s conduct, and for\nthis reason it cannot be said with certainty that problems of appearances will\narise under the Standards of Conduct. Nevertheless, we believe that these\npotential problems of appearances should at least be considered. However, the\nauthoritative construction of the regulations we have discussed in the present\ncontext is ultimately a matter for the appointing official.\nL eon U lm an\n\nDeputy Assistant General Counsel\nOffice of Legal Counsel\n\n3For example, if (he individual were employed in (he W hite House Personnel Office, there could\nbe an appearance that the Democratic National Committee would have more influence in selecting\npersons to fill important Government posts than might otherwise be true. Also, if the individual\ntook an active interest in certain Government grants or contracts, there could be an appearance that\nhe would favor applicants with ties to the Democratic Party or its National Committee.\n\n326\n\n\x0c"


b'Department of Labor Jurisdiction to\nInvestigate Certain Criminal Matters\nThe Attorney G eneral may not delegate his authority to investigate labor crim es to the Secretary\no f L abor unless the Department o f Labor has specific overlapping statutory authority to\ninvestigate those sam e offenses.\nSection 601(a) o f the L abor M anagement Reporting and Disclosure Act (LMRDA), 29 U.S.C.\n\xc2\xa7 521(a), precludes the investigation o f violations o f \xc2\xa7 302 o f the Labor M anagement Rela\xc2\xad\ntions Act, 29 U .S.C. \xc2\xa7 186, by the Departm ent o f Labor.\nSection 805(b) o f the Comprehensive Crim e Control Act o f 1984,29 U.S.C. \xc2\xa7 1136, did not alter\nthe lim itations on Department o f L abor investigatory authority set forth in \xc2\xa7 601(a) of the\nLM RDA.\n\nOctober 28, 1986\nM\n\nem orandum\n\nO p in i o n\nC\n\nfo r the\nr im in a l\n\nA\nD\n\ns s is t a n t\n\nA ttorney G\n\neneral,\n\niv is io n\n\nThis memorandum responds to questions posed by the Criminal Division\nregarding the investigative jurisdiction of the Department of Labor over certain\ncriminal matters. In response to a prior request from the Criminal Division, this\nOffice recently opined that \xc2\xa7 805(b) of the Comprehensive Crime Control Act\nof 1984,29 U.S.C. \xc2\xa7 1136, granted investigative jurisdiction to the Department\nof Labor over offenses related to pension funds and welfare benefit plans.\nMemorandum for Stephen S. Trott, Assistant Attorney General, Criminal\nDivision from Charles J. Cooper, Assistant Attorney General, Office of Legal\nCounsel (Aug. 29, 1986).\nIn a follow-up memorandum expanding the original request, the Criminal\nDivision posed three additional questions that we address separately in this\nmemorandum. We understand that these questions have arisen during the\nprocess of negotiating a Memorandum of Understanding (MOU) between this\nDepartment and the Department of Labor identifying their respective investi\xc2\xad\ngative and prosecutorial responsibilities. First, you have asked for our views on\nthe general limits, if any, that apply to the power of the Attorney General to\ndelegate his investigative authority to other agencies through an MOU or other\nmeans. The second issue you have asked us to address is whether the Labor\nDepartment\xe2\x80\x99s investigative authority under \xc2\xa7 601(a) of the Labor Management\nReporting and Disclosure Act (LMRDA) of 1959,29 U.S.C. \xc2\xa7 521(a), excludes\ninvestigations of violations o f \xc2\xa7 302 of the Labor Management Relations (TaftHartley) Act of 1947, 29 U.S.C. \xc2\xa7 186, and certain other offenses. Third, you\n130\n\n\x0chave inquired whether any limitation imposed by \xc2\xa7 601(a) of the LMRDA was\nmodified by \xc2\xa7 805(b) of the Comprehensive Crime Control Act of 1984.\nWith respect to your inquiry concerning the general limitations on delega\xc2\xad\ntion of investigative power by the Attorney General, this Office has consis\xc2\xad\ntently taken the position that the Attorney General may not delegate criminal\ninvestigative authority to outside agencies in the absence of specific statutory\nauthority. We are not aware of any specific authority that would alter that\nconclusion in the present case. Therefore, we believe that the Attorney General\nmay not delegate his authority to investigate labor offenses unless the Depart\xc2\xad\nment of Labor has specific overlapping statutory authority to investigate those\nsame offenses.\nOn the second question regarding the construction of \xc2\xa7 601(a) of the LMRDA,\nyour Division has taken the position that this provision precludes the investiga\xc2\xad\ntion of \xc2\xa7 302 offenses by the Department of Labor. Although \xc2\xa7 302 is some\xc2\xad\nwhat cryptic, we agree with your interpretation.\nFinally, we do not believe that the limitation imposed on the Department of\nLabor by \xc2\xa7 601(a) of the LMRDA was altered by \xc2\xa7 805(b) of the Comprehen\xc2\xad\nsive Crime Control Act of 1984. Section 302 of the Taft-Hartley Act is not\nrelated to the operation of pension funds or welfare benefit plans. Therefore,\nunder the analysis in our prior memorandum, \xc2\xa7 805(b) did not alter the limita\xc2\xad\ntion contained in section 601(a).\nI. Background\nBecause these issues have arisen during MOU negotiations between this\nDepartment and the Department of Labor, we believe it is important to explain\nthe role of prior agreements between these two departments governing the\ndivision of investigative responsibility over certain labor offenses.\nInvestigations into criminal matters relating to labor-management relations\nhave been governed by a 1960 memorandum of understanding.1 The 1960\nMOU directed that cases investigated by the Department of Labor would be\nreferred to the Criminal Division, and that all criminal prosecutions (as well as\ncivil actions in the name of the Secretary of Labor) would be conducted by this\nDepartment. The MOU, however, made the division of investigative responsi\xc2\xad\nbility \xe2\x80\x9csubject to specific arrangements agreed upon by the Department of\nJustice and the Department of Labor on a case-by-case basis.\xe2\x80\x9d For example, the\nMOU provided that this Department would investigate offenses under \xc2\xa7 505 of\nthe LMRDA, 29 U.S.C. \xc2\xa7 186 (amending \xc2\xa7 302 of the Taft-Hartley Act), but\nthe MOU suggested that investigation of such matters could be delegated to the\nDepartment of Labor on a case-by-case basis.\n125 Fed. Reg. 1708 (1960). A second MOU executed in 1975 divides responsibility for the investigation of\ncertain ERISA offenses betw een the tw o departm ents. M emorandum o f U nderstanding Betw een the D epart\xc2\xad\nm ents o f Justice and L abor R elating to the Investigation and Prosecution o f C rim es and R elated Matters under\nTitle i o f the Em ployee R etirem ent Incom e Security Act o f 1974 (Feb. 9 ,1 9 7 5 ). See generally M emorandum\nto Stephen S. Trott, A ssistant A ttorney General, C rim inal Division from Larry L. Simms, D eputy A ssistant\nAttorney G eneral, O ffice o f Legal Counsel (Dec. 23, 1983).\n\n131\n\n\x0cAs noted above, the Department of Labor and this Department are currently\nworking on a new memorandum of understanding on this subject.2 The MOU\nnow being drafted can, of course, change or modify any agreement reached in\nthe prior MOUs, so long as the provisions of the new MOU are consistent with\nlegal constraints.3 We now turn to the three specific legal issues that you have\nraised.\nn . The Attorney General May Not Delegate Investigative\nJurisdiction to Other Agencies\nWithout Statutory Authority\nYou have asked whether there are limits on the Attorney General\xe2\x80\x99s authority\nto delegate his investigative powers either generally or on a case-by-case basis.\nThis Department\xe2\x80\x99s general authority to undertake criminal investigations is\nconferred by 28 U.S.C. \xc2\xa7 533, which provides that the Attorney General \xe2\x80\x9cmay\nappoint officials . . . to detect and prosecute crimes against the United States.\xe2\x80\x9d4\nIn interpreting \xc2\xa7 533, this Office has repeatedly recognized that this provision\nauthorizes the Department of Justice to investigate all federal criminal viola\xc2\xad\ntions, unless a particular statute specifically assigns exclusive investigative\nresponsibility to another agency.\nThis Office has also consistently concluded that \xe2\x80\x9c [i]n the absence of any\ngeneral provision of law permitting an agency to transfer its statutory authority\nto another agency, such transfers or delegations may normally be accomplished\nonly by legislation or by executive reorganization under the Reorganization\nAct.\xe2\x80\x9d \xe2\x80\x9cLitigation Authority of the Office of Federal Inspector, Alaska Natural\nGas Transportation System,\xe2\x80\x9d 4B Op. O.L.C. 820,823 (1980). This principle, in\nour judgment, compels the conclusion that the Attorney General may not\ndelegate this Department\xe2\x80\x99s investigative responsibility to another agency, just\nas he may not delegate this Department\xe2\x80\x99s litigating authority to another agency,\nunless specific legislation grants him this power.5 In the present instance, we\nare not aware of any statute authorizing the delegation of Justice Department\ninvestigative authority to the Labor Department.6\n2 W e understand that the tw o departments have recently signed a new M O U that deals w ith cooperation and\nthe provision o f inform ation but does not d eal w ith issues o f jurisdiction.\n3 O ur analyses o f the respective authorities o f the D epartm ent o f Labor and this Department are not meant\nto confer any rights on defendants. See In re Application to Quash Grand Jury Subpoena Served Upon Local\n806 , 384 F. Supp. 1304, 1306 (E.D.N.Y. 1974) (1960 MOU betw een D epartm ents of L abor and Justice is not\nfor the b en efit o f defendants).\n4 Pursuant to this authority, the Attorney G eneral may delegate his statutory authority to persons w ithin the\nD epartm ent o f Justice.\n5 See, e.g., 21 U .S.C . \xc2\xa7 873(b). See also M emorandum fo r Stephen S. Trott, A ssistant Attorney General,\nC rim inal D ivision from R alph W. Tan, A cting A ssistant A ttorney G eneral, O ffice of Legal Counsel (Nov. 8,\n1985); M em orandum fo r M ark Richard, D eputy A ssistant A ttorney G eneral, Criminal Division from Larry L.\nSim m s, D eputy A ssistant Attorney G eneral, O ffice o f Legal Counsel (M ar. 12, 1984).\n6 A lthough th e A ttorney G eneral may n o t delegate enforcem ent authority to other agencies, he may in some\ninstances appoint m em bers o f other federal agencies as deputy marshals to aid in the enforcem ent o f federal\nlaw. T he analytical distinction between delegation o f authority and deputation lies in the direct control\nC ontinued\n\n132\n\n\x0cAlthough we have not found any statute authorizing such a delegation, we\nsee no reason why the Attorney General could not enter into an agreement\nproviding for the Labor Department to exercise primary investigative responsi\xc2\xad\nbility in an area of overlapping jurisdiction. Such an agreement, however,\nwould depend upon the existence of a statute granting relevant investigative\njurisdiction to the Labor Department.\nIn this connection, we note that the Criminal Division has directed our\nattention to three sources of independent criminal investigative authority pos\xc2\xad\nsessed by the Department of Labor. The first of these, \xc2\xa7 805(b) of the Compre\xc2\xad\nhensive Crime Control Act of 1984, was analyzed in our prior memorandum.\nCongress has also expressly granted the Labor Department investigative juris\xc2\xad\ndiction in \xc2\xa7 504 of the Employee Retirement Income Security Act (ERISA), 29\nU.S.C. \xc2\xa7 1134, and in \xc2\xa7 601 of the LMRDA, 29 U.S.C. \xc2\xa7 521. You have asked\nfor our views on the nature of the limitation imposed by \xc2\xa7 601(a) of the\nLMRDA on Labor Department investigations of possible violations of \xc2\xa7 302 of\nthe Taft-Hartley Act, and on the question whether that limitation was altered by\n\xc2\xa7 805(b) of the Comprehensive Crime Control Act of 1984. We now turn to\nthese issues.\nIII. Section 601(a) of the LMRDA Does Not Authorize\nthe Labor Department to Investigate Possible\nViolations of \xc2\xa7 302 of the Taft-Hartley Act\nAs you note in your request, the original Taft-Hartley Act, which was\nenacted in 1947, did not assign any agency the responsibility for investigating\nviolations of \xc2\xa7 302. When Congress creates a crime but does not specifically\nassign investigative jurisdiction to any particular agency, the Attorney General\nhas investigative jurisdiction under his general powers to \xe2\x80\x9cappoint officials . . .\nto detect and prosecute crimes against the United States.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 533.\nIn \xc2\xa7 601(a) of the LMRDA, enacted in 1959, Congress gave the Secretary of\nLabor investigative authority with respect to any violation of the LMRDA\n\xe2\x80\x9cexcept title I [relating to the protection of union members\xe2\x80\x99 rights by private\ncivil action] or amendments made by this Act to other statutes." Pub. L. No.\n86-257, \xc2\xa7 601(a), 73 Stat. 519, 539 (1959) (emphasis added). Among the\nstatutory provisions amended by the LMRDA was 29 U.S.C. \xc2\xa7 186, the codifi\xc2\xad\n6 (. . . continued)\nm aintained by the A ttorney Genera) (through the m arshal) w hen an individual is deputized. The A ttorney\nG eneral is authorized to direct a m arshal to assign a deputy to perform any special national police duty that is\nw ithin the m arshal\'s jurisdiction, w hether by express provision o r necessary implication. In re Neagle t 135\nU.S. 1, 65 (1890). See also 28 U S.C. \xc2\xa7\xc2\xa7 562, 569(c), 28 C.F.R . \xc2\xa7 0 .1 1 1 -1 2 . Such deputations have been\nsharply restricted as an adm inistrative matter by the M arshals Service, and numerous o ther legal consider\xc2\xad\nations weigh against the use o f this pow er to authorize agents o f other agencies to enforce federal law. For\nexam ple, special deputations m ight in some instances be view ed as directly contravening the intent o f\nCongress by providing authority to m ake arrests and carry firearm s to officers to whom C ongress specifically\nhad chosen not to grant those powers. See, e.g., \xe2\x80\x9cSpecial D eputations o f Private Citizens Providing Security\nto a Form er C abinet M em ber,\xe2\x80\x9d 7 Op. O.L.C. 67 (1983).\n\n133\n\n\x0ccation of \xc2\xa7 302 of the Taft-Hartley Act. See Pub. L. No. 86-257, \xc2\xa7 505, 73 Stat.\n519, 537 (1959). Thus, because Congress amended \xc2\xa7 302 of the Taft-Hartley\nAct as part of the LMRDA, the language of \xc2\xa7 601(a) clearly indicates that the\nSecretary of Labor does not have authority to investigate \xc2\xa7 302 offenses.\nThe legislative history of \xc2\xa7 601(a) does not contradict the plain meaning of\nthe statutory language.7 The bill passed by the House and sent to the conference\ncommittee directed the Secretary \xe2\x80\x9cto make an investigation\xe2\x80\x9d when he has\nprobable cause to believe that any person has violated a provision of the act,\nother than title I.\xe2\x80\x9d H.R. Rep. No. 741,86th Cong., 1st Sess. 47 (1959) (report on\nH.R. 8342). The Senate bill rejected the probable cause requirement for inves\xc2\xad\ntigations and made the investigative power permissive rather than mandatory.\nS. Rep. No. 187, 86th Cong., 1st Sess. 100 (1959) (report on S. 1555).\nMoreover, the Senate bill, unlike the House bill, excepted violations of the\nTaft-Hartley provisions from the Secretary of Labor\xe2\x80\x99s investigative authority.\nS. 1555, 86th Cong., 1st Sess. 21 (1959). The report of the Senate Labor\nCommittee explained in clear terms that the bill excepted from the Secretary\xe2\x80\x99s\ninvestigative authority \xe2\x80\x9camendments made in other statutes, such as the Na\xc2\xad\ntional Labor Relations Act [Taft-Hartley] or the Labor Management Relations\nAct, 1947.\xe2\x80\x9d S. Rep. No. 187, supra, at 42.\nThe main dispute in the Conference Committee over the Secretary\xe2\x80\x99s investi\xc2\xad\ngative authority concerned the requirement of probable cause to investigate\nviolations of the Act and the mandatory nature of the investigations in the\nHouse bill. See H.R. Conf. Rep. No. 1147, 86th Cong., 1st Sess. 36 (1959),\nreprinted in 1959 U.S.C.C.A.N. 2318,2508. The Conference Committee report\ndid not even mention the restriction on investigations of Taft-Hartley offenses.\nId. Instead, the Conference Report merely noted that the Conference adopted\nthe Senate version \xe2\x80\x9cexcept that the investigation authority is permissive rather\nthan mandatory, no investigation may be made with respect to violations of\nrules and regulations, and the investigation authority does not extend to title I.\xe2\x80\x9d\nH.R. Conf. Rep. No. 1147, supra, at 36. Nevertheless, the Conference Commit\xc2\xad\ntee included the Senate bill\xe2\x80\x99s exception pertaining to statutes amended by the\nact in the version of the bill reported out of the committee. See 105 Cong. Rec.\n18115 (1959) (bill as reported out of conference committee).\nThe Taft-Hartley exclusion was explained briefly by Senator Goldwater on\nthe floor of the Senate prior to final passage. Senator Goldwater noted that\n\xc2\xa7 601(a) authorizes the Secretary to investigate violations of any provision of\nthe act excluding \xe2\x80\x9camendments made to Taft-Hartley.\xe2\x80\x9d 105 Cong. Rec. 19768\n\n7 T h e N ational L ab o r R elations Board (N L R B ) collected the legislative history o f the LM RDA in 1959, and\nthe D epartm ent o f L abor published a selected legislative history in 1964. National L abor R elations Board,\nLegislative History o f the Labor Management Reporting and Disclosure Act o f 1959 (1959); D epartm ent of\nL abor, Legislative History o f the Labor Management Reporting and Disclosure Act o f 1959 (1964). The\nB ureau o f N ational A ffairs (B N A ) also pu b lish ed an annotated legislative history in 1959. Bureau o f National\nA ffairs, The Labor Reform Law (Labor M anagem ent R eporting and D isclosure Act o f 1959) (1959). See also\nA. M cA dam s, Power and Politics in Labor Legislation (1964).\n\n134\n\n\x0c(1959). Accordingly, it appears that the only explanation offered in the legisla\xc2\xad\ntive history supports the plain language of section 601(a).\nThe change makes sense when the history of the act is considered.8 The\nLMRDA resulted in part from over two years of detailed hearings by the\nMcClellan Commission on American labor union practices and labor manage\xc2\xad\nment relations.9 The primary aim of the LMRDA was to establish reporting\nprovisions to regulate and democratize the operation of the unions. See, e.g., S.\nRep. No. 187, 86th Cong., 1st Sess. 2 (1959). One of the key issues in the\ndrafting process was whether the bill should include amendments to the TaftHartley Act which would entail changes in substantive provisions governing\nlabor-management relations or whether such amendments should be left for a\nsubsequent legislative effort. The Senate debated this issue at great length, with\na substantial number of Senators arguing that the substance of labor-manage\xc2\xad\nment relations involved a distinct set of issues that should not be allowed to\nfracture the broad consensus concerning the need for additional procedural\n(i.e., reporting) requirements. See, e.g., 105 Cong. Rec. 6131-32, 6239-40,\n6281, 6285-92, 6296-6301, 6389-93, 6395-6400, 6409-11 (1959) (debating\namendment to delete provisions amending Taft-Hartley). In the end, the Senate\ndecided to include a handful of key amendments to Taft-Hartley in its version\nof the bill.10\nThis history makes sense of \xc2\xa7 601(a) which, in effect, provided the Secretary\nof Labor with investigative authority over the heart of the 1959 Act \xe2\x80\x94 the new\nreporting and disclosure provisions \xe2\x80\x94 but not over the distinct substantive\nprovisions governing labor management relations, which were amendments to\nprovisions of the Taft-Hartley Act. Thus, what may seem on first impression to\nbe awkward phraseology \xe2\x80\x94 \xe2\x80\x9camendments made by this Act to other statutes\xe2\x80\x9d\n\xe2\x80\x94 in fact clearly identifies the set of provisions that altered the Taft-Hartley Act.\nIn sum, the legislative history does not suggest that the final language of\n\xc2\xa7 601(a) was intended to mean anything other than the plain language suggests.\nOne additional issue that must be considered is whether \xc2\xa7 607 of the LMRDA,\n29 U.S.C. \xc2\xa7 1136(a), can be read to provide additional investigative jurisdic\xc2\xad\ntion to the Department of Labor or to any other department. Section 607 gives\nthe Secretary of Labor the power to \xe2\x80\x9cmake . .. arrangements or agreements for\ncooperation or mutual assistance in the performance of his functions under this\nAct and the functions of any such agency as he may find to be practicable and\n8 The BNA legislative history o f the LM RDA, published in 1959, explains that the exception for the TaftHartley am endm ents stem m ed from the fact that the N ational Labor Relations Board (N LRB) or the Justice\nD epartm ent adm inistered that act. Bureau o f National A ffairs, supra note 7, at 104.\n9 See, e.g., S. Rep. No. 187, 86th Cong., 1st Sess. (1959) (bill designed \xe2\x80\x9cto correct the abuses which have\ncrept into labor and m anagem ent and w hich have been the subject o f investigation by the Com m ittee on\nIm proper A ctivities in the Labor and M anagem ent field for the past several years\xe2\x80\x9d ), reprinted in 1959\nU .S.C.C.A.N . 2318. The M cClellan hearings focused on c o n u p t labor practices in a handful o f unions,\nnotably by the Team sters and their president, Jim m y Hoffa. S. Rep. No. 1417, 85th Cong., 2d Sess., Interim\nReport o f the Senate Select Com m ittee on Im proper A ctivities in the Labor or M anagement Field (1958); S.\nRep. No. 1210, 85th Cong., 2d Sess. (1958).\n10 M uch o f the eventual substance o f the Taft-H artley am endm ents was adopted from the H ouse version by\nthe conference committee. See H.R. Conf. Rep. No. 1147, supra, at 46, 49-75.\n\n135\n\n\x0cconsistent with law.\xe2\x80\x9d 11The section also provides that \xe2\x80\x9ceach department, agency,\nor establishment of the United States is authorized and directed to cooperate\nwith the Secretary and, to the extent permitted by law, to provide such informa\xc2\xad\ntion and facilities as he may request.\xe2\x80\x9d Finally, the section specifically directs\nthe Attorney General to receive evidence from the Secretary of Labor and to\ntake appropriate action.\nIn our view, \xc2\xa7 607 does not provide a basis for expanding Labor\xe2\x80\x99s statutory\njurisdiction. That section authorizes the Secretary of Labor to enter into ar\xc2\xad\nrangements or agreements to assist \xe2\x80\x9cin the performance of his functions under\nthis Act and the functions of any such agency. .. consistent with law.\xe2\x80\x9d (Empha\xc2\xad\nsis added.) We do not believe this language can be read to enlarge the scope of\nLabor\xe2\x80\x99s lawful functions. To be \xe2\x80\x9cconsistent with law,\xe2\x80\x9d the Secretary of Labor\ncan exercise only that authority granted to him by statute. The 1960 MOU\nrecognized that \xc2\xa7 607 explicitly provided the Secretary of Labor with authority\nto make interagency agreements. In our view, the agreement reflected in the\n1960 MOU did not necessarily eliminate permanently the investigative juris\xc2\xad\ndiction of the Labor Department in the areas assigned to this Department, but\nrather transferred that power to this Department based upon \xc2\xa7 607 for as long as\nthat agreement remains in effect.12\nThus, the 1960 MOU would not bar a different allocation of responsibility in\na new MOU so long as the investigative jurisdiction falls within the investiga\xc2\xad\ntive authority conferred by Congress in 1959 or since that time.\nIV. Section 805(b) of the Comprehensive Crime Control Act\nof 1984 Did Not Alter \xc2\xa7 601(a) of the LMRDA\nFinally, we address the question whether Labor\xe2\x80\x99s lack of authority to inves\xc2\xad\ntigate violations of \xc2\xa7 302 of the Taft-Hartley Act was subsequently altered by\n\xc2\xa7 805(b) of the Comprehensive Crime Control Act of 1984. We have already\nopined that \xc2\xa7 805(b) provided investigative jurisdiction only over offenses\nrelated to pension funds and welfare benefit plans, and \xc2\xa7 302 of the Taft11 Section 607 o f the LM R D A , provides in pertinent part:\nIn o rd er to avoid unnecessary expense and duplication o f functions am ong G overnm ent agencies,\nthe Secretary m ay m ake such arrangem ents or agreem ents for cooperation or m utual assistance in\nthe perform ance o f his functions u n d e r this A ct and the function o f any such agency as he may\nfin d to be p racticable and consistent w ith law. The Secretary may utilize the facilities or services\no f any departm ent, agency, or establishm ent o f the U nited States or o f any State or political\nsubd iv isio n o f a State, including th e services o f any o f its em ployees, with the lawful consent of\nsuch departm ent, agency, or establishm ent; and each departm ent, agency, o r establishm ent to the\nU nited States is authorized and d irected to cooperate w ith the Secretary and, to the extent\np erm itted by law , to provide such inform ation and facilities as he may request for his assistance\nin the perform ance o f his functions under this Act. The A ttorney G eneral or his representative\nsh all receive from the Secretary fo r appropriate action such evidence developed in the perfor\xc2\xad\nm ance o f his functions under this A ct as may be found to w arrant consideration for criminal\nprosecution under the provisions o f th is Act or other Federal law.\n29 U .S .C \xc2\xa7 1136(A)\n12 The 1960 M OU required \xe2\x80\x9c periodic rev iew s o f this agreem ent to determ ine any adjustm ents which seem\nnecessary based on experience under th is Act." It is clear that the M OU envisioned the possibility of\nsubsequent alteration in the division of au th o rity recognized in the original agreem ent.\n\n136\n\n\x0cHartley Act is not related to pension funds or welfare benefit plans. Therefore,\n\xc2\xa7 805(b) did not, in our view, provide the Department of Labor with investiga\xc2\xad\ntive jurisdiction over these offenses.\nYou have not suggested any other post-1959 statutory provision that might\nhave expanded the investigative jurisdiction of the Department of Labor over\n\xc2\xa7 302 offenses, and we have found no such provision in our independent\nresearch. In the absence of such a provision, it is our view that the Labor\nDepartment cannot investigate offenses under \xc2\xa7 302.13\nC h a r l e s J. C o o p e r\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n13 The 1960 M OU betw een the Labor D epartm ent and this Department describes \xc2\xa7 302 o f the Taft-H artley\nAct, as am ended by \xc2\xa7 505 o f the LMRDA o f 1959, in the list o f matters to be investigated by the FBI. As\npreviously noted, the MOU provides that specific arrangem ents could be made on a case-by-case basis for\ninvestigation o f \xc2\xa7 302 violations by the L abor D epartment. You note that the C nm m al D ivision held the view\nthat such an agreem ent was acceptable based upon the belief that the A ttorney G eneral could delegate\ninvestigative authority over such offenses under 28 U.S.C. \xc2\xa7 533. As explained above, we do not believe that\nthe A ttorney G eneral can delegate such authority unless Congress has specifically given him pow er to make\nsuch a delegation o r unless the agency to w hich that investigative authority would be delegated already has\nclear and express congressional authority to investigate those offenses.\n\n137\n\n\x0c'


b"December 10, 1979\n\n79-85\n\nMEMORANDUM OPINION FOR THE ACTING\nCOMMISSIONER, IMMIGRATION AND\nNATURALIZATION SERVICE\nImmigration and Nationality Act (8 U.S.C.\n\xc2\xa7 1182)\xe2\x80\x94Immigration and Naturalization\nService\xe2\x80\x94Public Health Service\xe2\x80\x94Homosexuality as\nGrounds for Exclusion\n\nThis responds to your inquiry concerning the legal authority of the\nSurgeon General to direct the Public Health Service (PHS) medical of\xc2\xad\nficers' not to certify arriving homosexual aliens as possessing a \xe2\x80\x9c mental\ndefect or disease\xe2\x80\x9d solely because of their homosexuality.\nUnder \xc2\xa7 212(a)(4) of the Immigration and Nationality Act of 1952, as\namended (\xe2\x80\x9c the Act\xe2\x80\x9d ), 8 U.S.C. \xc2\xa7 1182(a)(4), Congress requires the exclu\xc2\xad\nsion of homosexual aliens from the United States. Enforcement of the\nAct\xe2\x80\x99s exclusionary provision is a joint responsibility of the Immigration\nand Naturalization Service (INS) and the PH S.2 The INS performs ex\xc2\xad\naminations of all arriving aliens other than mental or physical examina\xc2\xad\ntions, 8 U.S.C. \xc2\xa7 1225, and it administratively adjudicates the admissibil\xc2\xad\nity vel non of aliens in doubtful cases, 8 U.S.C. \xc2\xa7 1226. Upon referrals\nfrom INS officers, the PHS then conducts physical and mental examina\xc2\xad\ntions of arriving aliens, and certifies \xe2\x80\x9c for the information of [INS officers],\nany physical or mental defect or disease observed\xe2\x80\x9d in aliens so examined.\nSince 1952, the exclusion of homosexual aliens has been enforced both\n\n'Physical and mental examinations o f arriving aliens may be perform ed by medical officers\no f the Public Health Service or civil surgeons qualified as specified in 8 U .S.C . \xc2\xa7 1224.\nReferences in this m em orandum to medical officers o f the Public Health Service are intended\nto include both groups o f examining physicians.\n'Except when referring to specific docum ents, our understanding o f the facts and of the\nagencies\xe2\x80\x99 positions is based on an O ctober 18, 1979 meeting between you, members o f your\nstaff, the General Counsel o f the Departm ent of H ealth, Education and W elfare, and\nmembers o f this Office.\n\n457\n\n\x0cunilaterally by the INS, e.g., relying on an alien\xe2\x80\x99s admission of homosex\xc2\xad\nuality and jointly, subsequent to a certification by the PHS that particular\naliens are afflicted with a \xe2\x80\x9c mental defect or disease,\xe2\x80\x9d i.e., homosexuality.\nYou indicate, however, that in the past several years, the number of refer\xc2\xad\nrals to the PHS has increased significantly.\nOn August 2, 1979, the Surgeon General and Assistant Secretary for\nHealth of the Department of Health, Education and Welfare (HEW),\nissued a memorandum declaring that \xe2\x80\x9c homosexuality per se will no longer\nbe considered [by the PHS] a \xe2\x80\x98mental disease or defect,\xe2\x80\x99\xe2\x80\x9d and that \xe2\x80\x9c the\ndetermination of homosexuality is not made through a medical diagnostic\nprocedure;\xe2\x80\x9d he indicated that INS officers would be advised to stop re\xc2\xad\nferring aliens to the PHS for mental examinations solely on the ground of\nsuspected homosexuality.\nYou have questioned the Surgeon General\xe2\x80\x99s authority to make these\ndeterminations and have inquired concerning the impact of his memor\xc2\xad\nandum on the enforceability of the Act. For reasons stated below, we con\xc2\xad\nclude: Congress clearly intended that homosexuality be included in the\nstatutory phrase \xe2\x80\x9c mental defect or disease,\xe2\x80\x9d and the Surgeon General has\nno authority to determine that homosexuality is not a \xe2\x80\x9c mental defect or\ndisease\xe2\x80\x9d for purposes of applying the Act; if the Surgeon General has\ndetermined, as a matter of fact, that it is impossible for the PHS medically\nto diagnose homosexuality, the referral of aliens to the PHS for certifica\xc2\xad\ntion of homosexuality would be unhelpful; and the INS is statutorily re\xc2\xad\nquired to enforce the exclusion of homosexual aliens, even though the Sur\xc2\xad\ngeon General has directed the PHS no longer to assist in this enforcement.\nI.\n\nHom osexuality as a \xe2\x80\x9c Mental D efect or Disease\xe2\x80\x9d\n\nThe first policy promulgated by the Surgeon General\xe2\x80\x99s memorandum is:\n\xe2\x80\x9c [Homosexuality per se will no longer be considered [by the PHS] a\n\xe2\x80\x98mental disease or defect.\xe2\x80\x99\xe2\x80\x9d The asserted consequence of this finding is\nthat PHS medical officers will no longer certify that any alien referred to\nthem for physical and mental examination possesses a \xe2\x80\x9c mental defect or\ndisease,\xe2\x80\x9d within the meaning of 8 U.S.C. \xc2\xa7 1224, solely on the ground of\nhomosexuality. For the reasons that follow, we conclude that the Surgeon\nGeneral has no authority to exclude homosexuality from the coverage of\nthe phrase \xe2\x80\x9c mental defect or disease\xe2\x80\x9d as used in the Act.\nUnder 8 U.S.C. \xc2\xa7 1224, PHS medical officers conduct mental and\nphysical examinations of arriving aliens \xe2\x80\x9c under such administrative\nregulations as the Attorney General may prescribe, and under medical reg\xc2\xad\nulations prepared by the Surgeon General of the United States Public\nHealth Service.\xe2\x80\x9d Under this provision, the Surgeon General is empowered\nreasonably to regulate the PHS\xe2\x80\x99s medical functions. To whatever extent\nintended by Congress, this authority would appear on its face to include\ndiscretion to promulgate policies regarding the description and diagnosis\nof disease. See, e.g., 42 CFR \xc2\xa7 34.2(b), 34.4 (1978).\n458\n\n\x0cHowever, it is elementary that the Surgeon General may not redefine\nterms in a statute that have rationally been given certain and specific\nmeaning by Congress:\nThe power of an administrative officer or board to administer a\nfederal statute and to prescribe rules and regulations to that end\nis not the power to make law\xe2\x80\x94for no such power can be\ndelegated by Congress\xe2\x80\x94but the power to adopt regulations to\ncarry into effect the will of Congress as expressed by the statute.\nA regulation which does not do this, but operates to create a rule\nout of harmony with the statute, is a mere nullity. [Manhattan\nGeneral Equip. Go. v. Commissioner o f Internal Revenue,\n297 U.S. 129, 134 (1936). See also, United States v. Larionoff,\n431 U.S. 864, 873, and note 12 (1977), and cases cited therein.]\nWhere Congress has classified homosexuality as a disease and requires on\nthat ground the exclusion of homosexual aliens, the Surgeon General has\nno authority to disregard or to change the statute administratively.\nNeither the INS nor the PHS questions that Congress intended, under 8\nU.S.C. \xc2\xa7 1182(a)(4), to exclude homosexual aliens from the United States.\nThat section provides:\n(a) Except as otherwise provided in this chapter, the follow\xc2\xad\ning classes of aliens shall be ineligible to receive visas and shall be\nexcluded from admission into the United States:\n* * * * * * *\n(4)\nAliens afflicted with psychopathic personality, sexual de\xc2\xad\nviation, or a mental defect; * * *\nAlthough the \xe2\x80\x9c (a)(4) exclusions\xe2\x80\x9d do not expressly refer to homosexuals,\nthe legislative history of the 1952 enactment and its 1965 amendment, as\nwell as the interpretation of the 1952 provisions by the Supreme Court in\n1967, conclusively establish that Congress intended to include homosex\xc2\xad\nuals within their terms. Boutilier v. INS, 387 U.S. 118 (1967).1\nThere is no doubt that Congress intended homosexuality to be a \xe2\x80\x9c men\xc2\xad\ntal defect or disease\xe2\x80\x9d as those words are used in the Act. It included homo\xc2\xad\nsexuals within medical categories, i.e., \xe2\x80\x9c psychopathic personality, sexual\ndeviation, and mental defect.\xe2\x80\x9d Its determination to exclude homosexual\naliens from admission was based on the recommendations concerning\nmedical exclusions made by the Senate Judiciary Committee in 1950:\nThe subcommittee believes, however, that the purpose of the\nprovision [of the Immigration Act o f 1917] against \xe2\x80\x9c persons\nwith constitutional psychopathic inferiority\xe2\x80\x9d will be more ade\xc2\xad\nquately served by changing that term to \xe2\x80\x9c persons afflicted with\n\n\xe2\x80\x99On the relevant history o f the original enactm ent, see Letter from Acting Surgeon General\nJ. Masur to Representative Francis E. W alter (May 15, 1951), reprinted at H. Rept. 1365,\n82d Cong., 2d sess. 45 (1952), and the discussion in S. Rept. 1137, Pt. 1, 82d C ong., 2d sess.\n9 (1952). On the 1965 am endm ent, in which Congress, in response to the co u rt\xe2\x80\x99s holding in\nFleuti v. Rosenberg, 302 F.(2d) 652 (9th Cir. 1962), added the term \xe2\x80\x9c sexual deviation\xe2\x80\x9d to\n8 U.S.C. \xc2\xa7 1182(a)(4), see H . Rept. 745, 89th C ong., 1st sess. 16 (1965), and S. Rept. 748,\n89th Cong., 1st sess. 19 (1965).\n\n459\n\n\x0cpsychopathic personality,\xe2\x80\x9d and that the classes of mentally [sic]\ndefectives should be enlarged to include homosexuals and other\nsex perverts. [S. Rept. 1515, 81st Cong., 2d sess. 345 (1950).]\nThe House Judiciary Committee, describing the original (a)(4) provisions\nas enacted in 1952, referred to them as \xe2\x80\x9c medical grounds for exclusion.\xe2\x80\x9d\nH. Rept. 1365, 82d Cong., 2d sess. 45 (1952).\nFinally, 8 U.S.C. \xc2\xa7 1224, providing that PHS medical officers shall cer\xc2\xad\ntify \xe2\x80\x9c any physical and mental defect or disease\xe2\x80\x9d observed in the arriving\naliens they examine, also requires that these officers be provided with\n\xe2\x80\x9c suitable facilities for the detention and examination of all arriving aliens\nwho it is suspected may be excludable under paragraphs (1) to (4) or (5) of\nsection 1182(a) [of title 8].\xe2\x80\x9d It would not be logical for Congress to have\nprovided facilities suitable for the physical and mental examination of\naliens suspected of being excludable under \xc2\xa7 1182(a)(4), unless Congress\nassumed that the persons excludable under that paragraph are afflicted\nwith diagnosable diseases. Congress considered homosexuality a disease.\nNot a word in the statute or its history suggests congressional intent that\nthe Surgeon General be empowered in the future to eliminate homo\xc2\xad\nsexuality as a ground for exclusion by declaring his disagreement with\nCongress\xe2\x80\x99 determination that homosexuality is a \xe2\x80\x9c mental defect or\ndisease.\xe2\x80\x9d 4\nII.\n\nAmenability of Homosexuality to Diagnosis\n\nIn addition to promulgating a new policy regarding the medical status of\nhomosexuality, the Surgeon General asserts in his memorandum: \xe2\x80\x9c the\ndetermination of homosexuality is not made through a medical diagnostic\n\n4We reject as a general proposition the suggestion in an O ctober 16, 1979 letter to you from\n18 Members o f Congress that the INS, or any other agency, \xe2\x80\x9c may m ake policy changes in\nlight o f changing facts and societal values w ithout regard to court decision or legislative\nhistory.\xe2\x80\x9d T hat position is flatly irreconcilable with the duly o f the President, and of the ex\xc2\xad\necutive branch he directs, to \xe2\x80\x9c take Care that the Laws be faithfully executed.\xe2\x80\x9d Constitution\no f the United States, A rt. II, \xc2\xa7 3, cl. 4.\nThis would be a different situation had Congress not given any specific content to its\ngeneral medical categories or otherwise indicated its intent that the Surgeon General define\nthe A ct\xe2\x80\x99s provisions in light o f changing medical opinion. For example, both the M embers\xe2\x80\x99\nletter and a m em orandum by the National Gay Task Force, forwarded on July 11, 1979 by its\nCo-Executive Directors to form er Associate A ttorney General Michael J. Egan, note that the\nINS, under the Im migration Act of 1917, excluded at least one alien for contem plated\nadultery, U.S. ex ret. Tournyv. Reimer, 8 F. Supp. 91 (S.D .N .Y . 1934), and deported at least\none for criminal \xe2\x80\x9c lewdness,\xe2\x80\x9d Lane ex re!. Cronin v. Tillinghast, 38 F.(2d) 231 (1st Cir. 1930).\nBoth letters assert that the INS has since changed its policies in these areas, either under the\n1917 Act o r under the analogous provisions o f the 1952 A ct. However, the provisions in\xc2\xad\nvolved\xe2\x80\x94exclusion for intended acts o f \xe2\x80\x9c immoral purpose\xe2\x80\x9d and deportation for crimes o f\n\xe2\x80\x9c moral turpitude\xe2\x80\x9d \xe2\x80\x94were left wholly undefined by the 1917 Act and by its legislative history.\nSee S. Rept. 352, 64th C ong., 1st sess. (1916). (The terms are also not explained in the legisla\xc2\xad\ntive history o f H .R . 6060, 63d C ong., 3d sess. (1916), in which the deportation category first\nappeared, o r in the legislative history o f the Act o f February 20, 1907, 34 Stat. 898, 899, in\nwhich the exclusionary provision originated.) In these cases, INS could reasonably infer C on\xc2\xad\ngress\xe2\x80\x99 intent that it prom ulgate definitions and implement policies that reflect contem porary\nassessments o f \xe2\x80\x9c immoral purpose\xe2\x80\x9d and \xe2\x80\x9c m oral tu rp itu d e.\xe2\x80\x9d No such intended discretion ap\xc2\xad\npears from the history o f \xc2\xa7 1182(a)(4).\n\n460\n\n\x0cprocedure.\xe2\x80\x9d The meaning of this statement is ambiguous. If it is asserted\nthat the ascertainment of homosexuality is not possible through medical\ndiagnosis on the tautological ground that homosexuality is not a medical\nor pathological condition, this finding is merely a reassertion of the\nSurgeon General\xe2\x80\x99s first determination that homosexuality is not included\nin the statutory definition of \xe2\x80\x9c mental defect or disease.\xe2\x80\x9d As stated above,\nthis is a determination that the Surgeon General is not authorized to make.\nIf the Surgeon General, however, has stated a fact of medical practice\xe2\x80\x94\nnamely, that doctors do not have available any procedure helpful in deter\xc2\xad\nmining homosexuality\xe2\x80\x94that fact, it appears, would not be subject to\nlegislative alteration.5 If this latter assertion is in fact the Surgeon\nGeneral\xe2\x80\x99s determination, then it obviously would be unhelpful for the INS\nto refer suspected homosexuals to the PHS for mental examination. The\naccuracy of this position cannot be determined by this Office.\nIII.\n\nAdministrative Consequences\n\nIn light of the foregoing, it is necessary to determine the administrative\nconsequences of the Surgeon General\xe2\x80\x99s memorandum for the enforcement\nof the Act. His memorandum states:\nThe Immigration and Naturalization officials * * * will be ad\xc2\xad\nvised * * * that in accord with this change they should no longer\nrefer aliens suspected only of being homosexual to the PHS for\ncertification of a mental disease or defect under 8 USC 1224.\n\xe2\x80\x99We are in no position to assess and we express no view on this possibility. We note,\nhowever, that Congress was already aware in 1951 o f the limited helpfulness o f medical\ndiagnosis in ascertaining homosexuality. In a m em orandum accompanying the May 15, 1951\nletter from Acting Surgeon General J. Masur to Representative Francis E. W alter, the PH S\nexplained:\nSexual perverts \xe2\x80\x94The language o f the bill lists sexual perverts or homosexual persons as\namong those aliens to be excluded from admission to the United States. In some in\xc2\xad\nstances considerable difficulty may be encountered in substantiating a diagnosis of\nhomosexuality or sexual perversion. In other instances where the action and behavior o f\nthe person is [sic] more obvious, as might be noted in the m anner o f dress (so-called\ntransvestism or fetishism), the condition may be more easily substantiated. Ordinarily, a\nhistory o f homosexuality must be obtained from the individual, which he may success\xc2\xad\nfully cover up. Some psychological tests may be helpful in uncovering homosexuality o f\nwhich the individual, himself, may be unaware. At the present time there are no reliable\nlaboratory tests which would be helpful in making a diagnosis. The detection o f persons\nwith more obvious sexual perversion is relatively simple. Considerably more difficulty\nmay be encountered in uncovering the homosexual person. Ordinarily, persons suffering\nfrom disturbances in sexuality are included within the classification o f \xe2\x80\x9c psychopathic\npersonality with pathologic sexuality.\xe2\x80\x9d This classification will specify such types of\npathologic behavior as homosexuality or sexual perversion which includes sexual\nsadism, fetishism, transvestism, pedophilia, etc. In those instances where the disturb\xc2\xad\nance in sexuality may be difficult to uncover, a more obvious disturbance in personality\nmay be encountered which would warrant a classification of psychopathic personality or\nmental defect.\nReprinted in, H. Rept. 1365, 82d C ong., 2d sess. 47 (1952). The Surgeon General, in his\nAugust 2, 1979 m em orandum , does not explain how the facts o f diagnostic procedure have\nchanged since 1951.\nWe also note that, to enforce the (a)(4) exclusions, INS will presumably be required to\npromulgate some policy defining homosexuality and prescribing the appropriate investiga\xc2\xad\ntion to be undertaken by INS officers. Such investigations\xe2\x80\x94like medical diagnoses\xe2\x80\x94will\nlikely have to rely primarily, if not entirely, on the representations of the arriving aliens.\n\n461\n\n\x0cTo the extent that the Surgeon General\xe2\x80\x99s statement purports to authorize\nPHS medical officers to decline referrals from INS officers, his memo\xc2\xad\nrandum is without authority. Section 1224 of title 8 provides that physical\nand mental examinations of arriving aliens are to be conducted \xe2\x80\x9c under\nsuch administrative regulations as the Attorney General may prescribe,\nand under medical regulations prepared by the Surgeon General of the\nUnited States Public Health Service.\xe2\x80\x9d [Emphasis added.] The question\nwhether INS may properly refer particular categories of aliens to the PHS\nfor examination is an administrative, not a medical question. Viewed as a\nquestion of law, the issue must be decided by the Attorney General, whose\n\xe2\x80\x9c determination and ruling\xe2\x80\x9d with respect to \xe2\x80\x9c all questions of law [relating\nto immigration and naturalization] shall be controlling.\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1103(a). On the other hand, if the Surgeon General\xe2\x80\x99s advice is based on\nthe asserted fact that the PHS has no procedures that would be helpful to\nthe INS in these cases, that advice raises the same issue of medical fact dis\xc2\xad\ncussed above.\nThe legal issue posed is whether the INS is legally required to enforce the\nexclusion of homosexual aliens if PHS would no longer provide examina\xc2\xad\ntions and certifications to assist the INS in verifying this ground for exclu\xc2\xad\nsion. We think that the INS is required to do so.\nThe sole indication that Congress intended that all suspected \xe2\x80\x9c (a)(4)\xe2\x80\x9d\naliens be examined by the PHS prior to exclusion arises by implication\nfrom the requirement of 8 U.S.C. \xc2\xa7 1224:\n[M]edical officers shall be provided with suitable facilities for the\ndetention and examination of all arriving aliens who it is\nsuspected may be excludable under paragraphs (1) to (4) or (5) of\nsection 1182(a) of [title 8].\nA requirement of suitable facilities for the examination of all suspected\n\xe2\x80\x9c (a)(4)\xe2\x80\x9d aliens arguably implies Congress\xe2\x80\x99 intent that all such aliens\nreceive physical and mental examinations.\nThe structure of the Act, however, as well as its legislative history, and\ncontemporaneous administrative interpretation, support the conclusion\nthat examinations are not required in all cases, and that the requirement of\nsuitable facilities for the examination of all aliens in the specified\ncategories refers only to those aliens who may be referred to the PHS and\nby the INS. First, it must be noted that the statute does not impose any ex\xc2\xad\npress obligation on the INS to refer potentially excludable aliens to the\nPHS for examination. On the contrary, the only express referral obliga\xc2\xad\ntion imposed on examining immigration officers with respect to aliens\n\xe2\x80\x9c who may not appear * * * to be clearly and beyond a doubt entitled to\nland,\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1225(b), is that the officers detain such aliens \xe2\x80\x9c for fur\xc2\xad\nther inquiry to be conducted by a special inquiry officer.\xe2\x80\x9d Id. The conclu\xc2\xad\nsion that PHS referrals were intended to be subject to the reasonable\ndiscretion of immigration officers is buttressed by 8 U.S.C. \xc2\xa7 1224, which\nprovides that the PHS shall render its medical certifications \xe2\x80\x9c for the infor\xc2\xad\nmation of the immigration officers and the special inquiry officers.\xe2\x80\x9d\n462\n\n\x0cFurther, the exclusion provisions do not require a PHS certification as a\nbasis for an (a)(4) exclusion. Examining immigration officers may require\nevidence seemingly ample to make a reasonable (a)(4) determination:\nsworn statements by aliens; the production of books, papers, and\ndocuments; and the testimony, under subpoena, of additional witnesses. 8\nU.S.C. \xc2\xa7 1225. Upon a referral by examining INS officers, a special in\xc2\xad\nquiry officer must make a determination concerning the admissibility\nbased on any evidence produced at the inquiry. 8 U.S.C. \xc2\xa7 1226(a). The\nAct provides that a PHS certification that an alien is afflicted with a men\xc2\xad\ntal defect as specified in \xc2\xa7 1182(a)(4) will be conclusive of that fact at any\nhearing before a special inquiry officer, 8 U.S.C. \xc2\xa7 1226(d), but nowhere\nimplies that the absence of such a certification has any necessary effect\nwhatsoever.\nIn sum, we conclude that, although referrals to the PHS, in light of the\nSurgeon General\xe2\x80\x99s directive, currently appear to be unhelpful with respect\nto the determination whether particular aliens are excludable as homo\xc2\xad\nsexuals, the INS is required nonetheless to enforce the Act\xe2\x80\x99s exclusionary\nprovisions.\nThe unavailability of the PHS in the enforcement process does pose ob\xc2\xad\nvious practical problems. The term \xe2\x80\x9c homosexuality\xe2\x80\x9d is highly imprecise,\nand Congress may not have intended the exclusion of every individual who\ncould arguably be included under any definition of homosexuality. It may\nreasonably be inferred that Congress intended homosexuality to be de\xc2\xad\nfined in light of current knowledge and social mores.\nBecause immigration officers are not expert in analyzing the personali\xc2\xad\nties of arriving aliens, we believe it would serve the interests of rational law\nenforcement for the INS to promulgate a uniform policy for investigating\nthe suspected homosexuality of arriving aliens. Such a policy might in\xc2\xad\ndicate the extent to which examining officers are to rely on the rep\xc2\xad\nresentations of the aliens themselves and the particular questions, if any,\nthat officers may ask concerning specific conduct.\nFinally, in view of the Surgeon General\xe2\x80\x99s memorandum and the conse\xc2\xad\nquent law enforcement problems posed for the INS, we recommend that\nthe memorandum, its consequences for the INS, and any resulting en\xc2\xad\nforcement policy be brought to the attention of Congress.\nJohn M . H\n\narm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n463\n\n\x0c"