                         Application of Federal Advisory Committee Act to
                                 Non-Governmental Consultations
             The Federal Advisory Committee Act does not apply to the consultations that the Department of
               Defense plans to conduct with various individuals from outside the government regarding the
               policies and procedures that DoD is developing for military commissions.

                                                                                       December 7, 2001

                                 LETTER OPINION FOR THE GENERAL COUNSEL
                                         DEPARTMENT OF DEFENSE

                You have asked for our opinion whether the Federal Advisory Committee Act
             (“FACA”), 5 U.S.C. app. (2000), applies to consultations that the Department of
             Defense (“DoD”) plans to conduct with various individuals from outside the
             Government regarding the policies and procedures that DoD is developing for
             military commissions. Based on your description of the consultations that are
             contemplated, we conclude that FACA does not apply to the consultations.
                Our conclusion is based on the following facts, which you have provided to us.
             The Secretary of Defense or his representative will, from time to time, consult
             selected non-governmental individuals concerning the policies and procedures that
             DoD is developing for military commissions. These discussions will generally
             occur on an individual by individual basis, which will not involve participation by
             more than one individual being consulted. If, on occasion, the Secretary or his
             representative talks with more than one individual at a time, they will solicit
             comments from the individuals as individuals, and will not solicit comments from
             them collectively as a group. DoD will not provide any staffing for the individuals
             who are consulted, although DoD will provide the individuals with materials
             relating to the consultations. Any written views that the individuals may submit
             will be submitted individually, not as a group. As appropriate, DoD may make
             public the fact that it has consulted with the individuals.
                The basic question when determining whether FACA applies to an agency’s
             non-governmental consultations is whether the agency has established or utilized a
             “committee, board, commission, council, conference, panel, task force, or other
             similar group” for the purpose of receiving advice or recommendations from the
             group. 5 U.S.C. app. § 3(2). To the extent that the consultations you contemplate
             are only with individuals on an individual basis, we do not believe there is any
             basis for concluding that FACA’s threshold requirement—the existence of a
             “group”—has been met.
                Moreover, to the extent that these consultations take place with more than one
             non-governmental individual at a time, we note that FACA certainly does not
             apply to every situation in which executive officers meet with and receive advice
             from more than one person at a time. Rather, to fall within FACA, the group of




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         people with whom the officers meet must have the attributes of a “committee,
         board, commission,” etc., and its purpose must be to provide advice or recommen-
         dations as a group.
             In other words, the group must have a collective function: It must have an
         advisory purpose as a group, not merely as a collection of individuals. By contrast,
         when an agency invites a number of individuals to a meeting in order to solicit the
         opinion of each person as an individual, FACA does not apply. See Ass’n of Am.
         Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C. Cir. 1993) (“a
         group is a FACA advisory committee when it is asked to render advice or
         recommendations, as a group, and not as a collection of individuals”); Application
         of Federal Advisory Committee Act to Editorial Board of Department of Justice
         Journal, 14 Op. O.L.C. 53, 53 (1990) (“the board would be subject to FACA if it
         deliberated as a body in order to formulate recommendations, but would not be
         subject to FACA if each individual member reviewed submissions to the journal
         and gave his own opinion about publication”); 41 C.F.R. § 102-3.40(e) (as
         amended by 66 Fed. Reg. 37,728, 37,735 (July 19, 2001)) (examples of groups
         that are not subject to FACA include “Groups assembled to provide individual
         advice. Any group that meets with a Federal official(s), including a public
         meeting, where advice is sought from the attendees on an individual basis and not
         from the group as a whole”). This is true even where the government officers have
         more than one meeting with such individuals, so long as the purpose of each
         meeting is to receive the individual input of each person present.
             Based on your description of the circumstances under which DoD may consult
         more than one individual at a time, we do not believe that those individuals could
         be viewed as having the attributes of a group, which is the threshold requirement
         for triggering FACA. Moreover, even if they could be viewed as a group, FACA
         would not apply because you intend to ask for the individual opinions of whoever
         is consulted and will not solicit the advice or recommendations of those individu-
         als as a group.

                                                                  JAY S. BYBEE
                                                            Assistant Attorney General
                                                             Office of Legal Counsel




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