Authority of the Deputy Attorney General Under Executive Order 12333

Authority of the Deputy Attorney General Under
Executive Order 12333
The Deputy Attorney General has authority to approve searches for intelligence purposes under
section 2.5 of Executive Order 12333.
November 5, 2001
MEMORANDUM OPINION FOR THE
ASSOCIATE DEPUTY ATTORNEY GENERAL
You have asked for our opinion whether the Deputy Attorney General has the
authority to grant approvals under section 2.5 of Executive Order 12333, 3 C.F.R.
§ 200 (1981). We believe that he does.
Executive Order 12333 addresses the conduct of intelligence activities. Section
2.5 provides:
The Attorney General hereby is delegated the power to approve the
use for intelligence purposes, within the United States or against a
United States person abroad, of any technique for which a warrant
would be required if undertaken for law enforcement purposes, pro-
vided that such technique shall not be undertaken unless the Attorney
General has determined in each case that there is probable cause to
believe that the technique is directed against a foreign power or an
agent of a foreign power. Electronic surveillance, as defined in the
Foreign Intelligence Surveillance Act of 1978 [“FISA”], shall be
conducted in accordance with that Act, as well as this Order.
Under the Department’s regulations, the Deputy Attorney General “is authorized
to exercise all the power and authority of the Attorney General, unless any such
power or authority is required by law to be exercised by the Attorney General
personally.” 28 C.F.R. § 0.15(a) (2000). That regulation rests on the Attorney
General’s statutory authority to “make such provisions as he considers appropriate
authorizing the performance by any other officer, employee, or agency of the
Department of Justice of any function of the Attorney General.” 28 U.S.C. § 510(1994). Consequently, the Deputy Attorney General may exercise the Attorney
General’s power under section 2.5 of the Executive Order, unless by law the
Attorney General must exercise that power personally.
No statute reserves to the Attorney General the power to grant approvals under
section 2.5, although one statute arguably is relevant to the question. Under
3 U.S.C. § 301 (2000), the President may delegate any “function which is vested
in the President by law” to the head of any department or agency in the Executive
Branch or to any official of a department or agency required to be appointed with
Senate confirmation. When the President uses this statute to delegate a function,
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Authority of the Deputy Attorney General Under Executive Order 12333
we have concluded that the power may be redelegated only to officials who
occupy Senate-confirmed positions and would also qualify under the statute to
receive delegations directly from the President. See Memorandum for Richard W.
McLaren, Assistant Attorney General, Antitrust Division, from William H.
Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Revision of
Proclamation 3279 (Oil Import Controls) and Implementing Regulations at 1
(Jan. 4, 1971). It is far from clear that the President’s delegation under section 2.5
is pursuant to 3 U.S.C. § 301. Section 301, according to 3 U.S.C. § 302 (2000),
does not “limit or derogate from any existing or inherent right of the President to
delegate the performance of functions vested in him by law,” and Executive Order
12333, which touches on many aspects of the President’s constitutional power
over national security, does not cite 3 U.S.C. § 301 as authority. In any event, even
if 3 U.S.C. § 301 applies, the Deputy Attorney General occupies an office requir-
ing Senate confirmation, and he may receive the redelegation of a presidential
power.
Nor do we believe that Executive Order 12333 itself limits the Attorney Gen-
eral’s ability to delegate to the Deputy Attorney General the power to give approv-
als under section 2.5. The Supreme Court has observed that “‘[t]he complexities
and magnitude of governmental activity have become so great that there must of
necessity be a delegation and redelegation of authority as to many functions.’”
Gravel v. United States, 408 U.S. 606, 617 (1972) (quoting Barr v. Matteo, 360
U.S. 564 (1959)). As we have explained, “[i]t is clear . . . as a ‘general proposi-
tion’ of administrative law, that ‘merely vesting a duty in [a cabinet officer] . . .
evinces no intention whatsoever to preclude delegation to other officers in the
[cabinet officer’s agency] . . . .’” Delegation of Cabinet Member’s Functions as Ex
Officio Members of the Board of Directors of the Solar Energy and Energy Con-
servation Bank, 6 Op. O.L.C. 257, 258 (1982) (quoting United States v. Giordano,
416 U.S. 505, 513 (1974)) (footnote omitted). Here, the argument for an implied
limitation under the Executive Order would be that the function in question is
exceedingly sensitive and that, by referring to FISA’s provisions on electronic
surveillance, the Executive Order incorporates FISA’s limitation that only the
Attorney General, Acting Attorney General, or Deputy Attorney General may
perform functions vested in the Attorney General by the statute. 50 U.S.C.
§§ 1801(g) (1994). Even assuming the validity of this reasoning, it would at most
show that the Attorney General’s authority under section 2.5 could not be delegat-
ed to an official below the Deputy Attorney General. It does not conflict with the
Deputy Attorney General’s exercise of power under the delegation in 28 C.F.R.
§ 0.15(a).
JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel
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