       Status of the Director of Central Intelligence Under the
          National Security Intelligence Reform Act of 2004
At the time the National Security Intelligence Reform Act of 2004 takes effect, the then-current
  Director of Central Intelligence would not require a new appointment to the office of Director of the
  Central Intelligence Agency should the President wish him to serve in that position.

                                                                                   January 12, 2005

       MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

   The National Security Intelligence Reform Act of 2004 (the “Intelligence Re-
form Act”) restructures the management of the intelligence community. Among
other things, the Intelligence Reform Act abolishes the title “Director of Central
Intelligence” (“DCI”) and assigns certain of the functions currently performed by
the DCI to an office entitled “Director of National Intelligence” (“DNI”) and
certain of those functions to an office entitled “Director of the Central Intelligence
Agency” (“DCIA”). You have asked whether, at the time the Intelligence Reform
Act becomes effective, the current DCI would require a new appointment to the
office of DCIA should the President wish him to serve in that position. We
conclude that a new appointment would not be required.

                                                  I.

   The current DCI was nominated by the President and confirmed by the Senate.
Under current law, the DCI “(1) serve[s] as head of the United States intelligence
community; (2) act[s] as the principal adviser to the President for intelligence
matters related to the national security; and (3) serve[s] as head of the Central
Intelligence Agency.” National Security Act of 1947 (“NSA”) § 102(a), 50 U.S.C.
§ 403(a) (2000).
   On December 17, 2004, the President signed into law the Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638
(“IRTPA”), title I of which is the Intelligence Reform Act. The Intelligence
Reform Act will take effect some time in the next six months. IRTPA § 1097, 118
Stat. at 3698. At that time, a position with the title DCI will no longer exist;
instead, there will be a DNI and a DCIA. Id. § 1011(a) (new NSA §§ 102(a) &
104A(a)), 118 Stat. at 3644, 3660. Both of those positions, the Intelligence Reform
Act provides, “shall be appointed by the President, by and with the advice and
consent of the Senate.” Id. § 1011(a) (new NSA §§ 102(a) & 104A(a)), 118 Stat. at
3644, 3660.
   You have asked whether, in light of these statutory changes, when the Intelli-
gence Reform Act takes effect the then-current DCI would require a new appoint-
ment if the President wishes him to serve as DCIA. Our analysis of the applicable




                                                  28
     Status of the Director of Central Intelligence Under the Intelligence Reform Act


statutory and constitutional provisions leads us to conclude that a new appointment
would not be required.

                                           II.

   Although the Intelligence Reform Act does not speak directly to this question,
we believe the better reading of the statute is that it does not require a new
appointment of the then-current DCI if the President wishes him to serve as DCIA.
That conclusion is reinforced by the fact that a contrary reading would raise
serious constitutional questions—Congress cannot remove a sitting officer except
by impeachment or by abolishing the position. A comparison of the duties of the
DCIA and DCI shows that the position has not been abolished. Consequently, a
new appointment is not required.

                                           A.

                                           1.

    Our conclusion follows, first, from a comparison of the statutory functions and
duties of the DCIA and the DCI. Such a comparison shows that the office of DCIA
is substantially the same office as that of DCI, albeit with a new title and a
reduction of duties. Because the office is the same and because Congress did not
clearly indicate a contrary intent, we conclude that Congress did not intend to
require a new appointment of the then-current DCI to serve as DCIA.
    Like the current DCI, the DCIA will “(1) serve as the head of the Central Intel-
ligence Agency” and will “(2) carry out” various other “specified” “responsibili-
ties” related to intelligence collection. Compare IRTPA § 1011(a) (new NSA
§ 104A(c)), 118 Stat. at 3660, with NSA § 102(a), 50 U.S.C. § 403(a). In particu-
lar, the DCIA will:

      (1) collect intelligence through human sources and by other appro-
      priate means, [but] shall have no police, subpoena, or law enforce-
      ment powers or internal security functions;

      (2) correlate and evaluate intelligence related to the national security
      and provide appropriate dissemination of such intelligence;

      (3) provide overall direction for and coordination of the collection of
      national intelligence outside the United States through human
      sources by elements of the intelligence community authorized to un-
      dertake such collection and, in coordination with other departments,
      agencies, or elements of the United States Government which are au-
      thorized to undertake such collection, ensure that the most effective




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                  Opinions of the Office of Legal Counsel in Volume 29


       use is made of resources and that appropriate account is taken of the
       risks to the United States and those involved in such collection; and

       (4) perform such other functions and duties related to intelligence af-
       fecting the national security as the President or the [DNI] may direct.

IRTPA § 1011(a) (new NSA § 104A(d)), 118 Stat. at 3660–61. All of these duties
are by statute currently performed by the DCI. See NSA § 103(d), 50 U.S.C.
§ 403-3(d). Moreover, the DCIA, like the DCI, will have authority to terminate
CIA employees in the interest of national security, IRTPA § 1011(a) (new NSA
§ 104A(e)), 118 Stat. at 3661; NSA § 104(h), 50 U.S.C. § 403-4(h) (2000 & Supp.
III 2004); and to coordinate relationships with the intelligence services of foreign
governments, IRTPA § 1011(a) (new NSA § 104A(f)), 118 Stat. at 3661; NSA
§ 104(e), 50 U.S.C. § 403-4(e).
    Likewise, section 1077—a “conforming amendment[]”—amends the Central
Intelligence Agency Act of 1949 (50 U.S.C. §§ 403a–403s) to provide that the
same authorities granted to the DCI under that Act will belong to the DCIA,
including authorities related to procurement, travel and allowances, personnel,
property, admission of essential aliens, appropriations, and acceptance of gifts,
among others. 118 Stat. at 3695. Indeed, section 1081(b) of the Intelligence
Reform Act provides:

       Any reference to the Director of Central Intelligence or the Director
       of the Central Intelligence Agency in the Director’s capacity as the
       head of the Central Intelligence Agency in any law, regulation, doc-
       ument, paper, or other record of the United States shall be deemed to
       be a reference to the Director of the Central Intelligence Agency.

118 Stat. at 3696.
   The DCIA, to be sure, will not serve as head of the intelligence community or
as principal adviser to the President for intelligence matters; those roles—greatly
enhanced under the Intelligence Reform Act—will be assigned to the newly
established DNI. See id. § 1011 (new NSA §§ 102 et seq.). Yet, every duty and
responsibility to be discharged by the DCIA under the Intelligence Reform Act is
presently discharged by the DCI in his role as head of the CIA, and this broad
substantive continuity clearly indicates that the office of DCIA is the same office
as that of the DCI, albeit with reduced duties and a new title.
    Neither a new title, nor reduced duties, nor a requirement that the DCIA be
appointed “by the President by and with the advice and consent of the Senate”
implies an intent to create a new office or otherwise require a new appointment.
An office is more than a title; it is essentially a collection of duties and authorities.
See United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868); The Constitu-
tional Separation of Powers Between the President and Congress, 20 Op. O.L.C.
124, 140–42 (1996) (“Separation of Powers”); Edward Corwin, The President:



                                           30
     Status of the Director of Central Intelligence Under the Intelligence Reform Act


Office and Powers, 1789–1984, at 85 (5th ed. 1984). Even where the title changes,
the office may continue if the duties and authorities continue in a recognizable
form, particularly where the duties and authorities are simply reduced. And if the
office was Senate-confirmed under its former title, Congress by simply continuing
that requirement when changing the title and reducing duties does not indicate an
intent to create a new office and thereby require a new appointment; rather, it
merely retains a characteristic of the prior position.
   Indeed, Congress has frequently changed an office’s title, reduced its duties or
authorities, and retained a requirement of Senate confirmation under analogous
circumstances—without any suggestion that it thereby created a new office or
otherwise purported to require a new appointment. For example, in the National
Security Act of 1947, Congress renamed the Secretary of War the Secretary of the
Army; reduced his powers by transferring his control over the Air Force to a new
Secretary of the Air Force; and retained the requirement of Senate confirmation.
Yet that act did not suggest that the Secretary of War would have to be reappoint-
ed, and the incumbent Secretary of War continued in office as Secretary of the
Army without his name being resubmitted to the Senate. See NSA §§ 205(a),
207(f), 61 Stat. 495, 501, 503; 93 Cong. Rec. 9393 (July 19, 1947) (Kenneth
Royall confirmed as Secretary of War; no subsequent submission for him to serve
as the Secretary of Army after the NSA took effect). Likewise, in 1979, Congress
renamed the Secretary of Health, Education, and Welfare the Secretary of Health
and Human Services; reduced her powers by transferring her education duties to a
new Secretary of Education; and retained the requirement of Senate confirmation.
Again, the statute did not suggest any need for a new appointment, and the
incumbent Secretary of Health, Education, and Welfare continued in office as
Secretary of Health and Human Services without her name being resubmitted to
the Senate. See Department of Education Organization Act, Pub. L. No. 96-88,
§§ 301, 509, 93 Stat. 668, 677–79, 695 (1979); 125 Cong. Rec. 21137, 21143 (July
27, 1979) (Patricia Roberts Harris confirmed as Secretary of Health, Education,
and Welfare; no subsequent submission for her to serve as Secretary of Health and
Human Services after Organization Act took effect). See also Crenshaw v. United
States, 134 U.S. 99, 101, 109 (1890) (holding that law providing that “all the
undergraduates at the Naval Academy shall hereafter be designated and called
‘naval cadets’” instead of “‘cadet midshipmen,’” and modifying the scope of their
duties by restricting the circumstances under which they would be commissioned
upon graduation, did not create a new office or appoint its occupants).
   Similarly, Congress in creating the Department of Defense reduced the powers
of three formerly principal officers—the Secretaries of the Army, Navy, and Air
Force—and put them under the control of the secretary of the newly created
Department of Defense (while retaining their titles and requirement to be Senate-
confirmed) without requiring reappointment. See National Security Act Amend-
ments of 1949, Pub. L. No. 81-216, §§ 3, 4, 10(a), 12(f), 63 Stat. 578, 579, 585.
Congress has in other ways reduced duties without any suggestion that it was



                                           31
                 Opinions of the Office of Legal Counsel in Volume 29


creating a new office. See, e.g., Act of April 30, 1798, ch. 35, § 5, 1 Stat. 553, 554
(reducing powers of the Secretary of War by transferring certain of them to the
secretary of the newly created Navy Department, without requiring reappointment
of the War Secretary); cf. United States v. San Jacinto Tin Co., 125 U.S. 273, 284
(1888) (assuming that the “legislative body which created the office” may place
“restrictions . . . upon the exercise of . . . authority by” that officer, without it
becoming a new office). It also has changed titles without any suggestion that it
was creating a new office. See, e.g., Act of Sept. 15, 1789, ch. 14, § 1, 1 Stat. 68,
68 (redesignating Secretary for the Department of Foreign Affairs as Secretary of
State, and somewhat increasing duties, without requiring reappointment).
    Given that the DCIA position appears, based on the duties, transitional provi-
sions, and historical examples discussed above, to be a continuation of the office
of DCI, as head of the CIA, one would expect Congress to have clearly conveyed
its purpose if it nevertheless meant to require the then-current DCI to be reap-
pointed in order to serve as the DCIA. By way of comparison, when Congress
passed legislation requiring Senate confirmation for the pre-existing positions of
Director and Deputy Director of the Office of Management and Budget (legisla-
tion that President Nixon vetoed), Congress expressly provided that “no individual
shall hold either such position thirty days after [the enactment] date unless he has
been so appointed.” S. 518, 93d Cong. (1973). Indeed, it was primarily this
provision (discussed further below) that led the President to veto the bill. See
Senate Confirmation of OMB Director and Deputy Director: The President’s
Message to the Senate Vetoing Bill Requiring Senate Confirmation of the Two
Positions, 9 Weekly Comp. Pres. Doc. 681 (May 18, 1973) (“Senate Confirmation
of OMB Director and Deputy Director”).

                                          2.

   The Intelligence Authorization Act for Fiscal Year 2005, Pub. L. No. 108-487,
118 Stat. 3939 (2004) (the “Authorization Act”) does not change our conclusion.
Section 803(b) of the Authorization Act states:

       (1) During the period beginning on the date of the enactment of this
       Act and ending on the date of the appointment of the Director of the
       Central Intelligence Agency under section 104A of the National Se-
       curity Act of 1947, as amended by section 1011(a) of the National
       Security Intelligence Reform Act of 2004, the Director of Central In-
       telligence may, acting as the head of the Central Intelligence Agen-
       cy, discharge the functions and authorities provided in this Act, and
       the amendments made by this Act, to the Director of the Central In-
       telligence Agency.

       (2) Upon the appointment of an individual as Director of the Central
       Intelligence Agency under section 104A of the National Security Act



                                         32
     Status of the Director of Central Intelligence Under the Intelligence Reform Act


      of 1947, as so amended, any reference in this Act, or in the classified
      annex to accompany this Act, to the Director of Central Intelligence
      as head of the Central Intelligence Agency shall be deemed to be a
      reference to the Director of the Central Intelligence Agency.

Id. § 803(b), 118 Stat. at 3962–63. Section 803(a) provides the same authority for
the DCI with respect to the functions and authorities of the DNI under the
Authorization Act. The conferees’ joint explanatory statement on section 803
indicates, consistently with the terms of section 803 itself, that it was meant to
“clarif[y] how certain authorities shall be exercised, and who shall exercise them,
during the transitional period between enactment of this Act, its effective date, the
appointment of certain officers, and the enactment and effective date of the
[Intelligence Reform Act].” H.R. Conf. Rep. No. 108-798, at 34 (2004). Presuma-
bly this language was necessary because, as section 803(b)(1) suggests, the
Authorization Act takes effect upon enactment and refers throughout to the DNI
and DCIA, yet the Intelligence Reform Act, which creates those titles, does not
take effect until sometime later. See id.
    In view of section 803’s language and purpose, we do not believe it fairly can
be read together with the Intelligence Reform Act to require a new appointment
simply because it provides (in section 803(b)(1)) who may exercise certain
authority under the Authorization Act in the transitional period until “the appoint-
ment” of a DCIA and (in section 803(b)(2)) how “any” references to the DCI
remaining in the Authorization Act should be read “[u]pon the appointment” of a
DCIA. Section 803’s operative terms relate to the Authorization Act, not the
Intelligence Reform Act. It provides, in permissive terms, that the DCI “may”
“discharge the functions and authorities provided in this Act”—i.e., provided in
the Authorization Act—during the transition period. We would not expect
Congress to attempt to require a new appointment under a separate piece of
legislation in such an obscure manner, especially with respect to such an important
office.
    Moreover, section 803 is a “savings provision[].” Pub. L. No. 108-487, § 803,
118 Stat. at 3962 (title of section). Its purpose is to ensure that some officer (the
DCI) is able to exercise the authorities granted under the Authorization Act to the
DNI and DCIA, not to restrict or otherwise address the President’s authority to
retain the current officer charged with running the CIA. In view of this purpose,
the reference in section 803(b)(1) to “the date of the appointment of the [DCIA]”
is best read to mean “the date on which all actions necessary to create and fill the
office of DCIA have been taken.” If the current DCI remains in his current office,
that date is the effective date of the Intelligence Reform Act. By contrast, because
the DNI, unlike the DCIA, is a new office, the appointment requires both the
Intelligence Reform Act to take effect and the President to nominate, and the
Senate to confirm, a new officer as the DNI. The broad language of section 803(b),
in referring to appointment, was necessary to take account of the possibility that




                                           33
                 Opinions of the Office of Legal Counsel in Volume 29


the then-current DCI would not remain in office until the Intelligence Reform Act
went into effect; it was not intended to require a new appointment in the event he
did.

                                         B.

   Our conclusion is reinforced by the fact that a contrary conclusion would raise
serious constitutional doubts. As the Supreme Court held in Myers v. United
States, 272 U.S. 52 (1926), the Constitution vests in the President, to the exclusion
of Congress, the authority to remove an officer of the United States before the
expiration of his term. There are two recognized exceptions: Congress may
remove an officer through impeachment, and Congress may abolish an office
altogether, thereby effectively removing the officer. See Morrison v. Olson, 487
U.S. 654, 686 (1988) (“the essence of the decision in Myers was the judgment that
the Constitution prevents Congress from ‘draw[ing] to itself . . . the power to
remove’”); Bowsher v. Synar, 478 U.S. 714 (1986) (holding that officers of the
United States may not be removed by Congress other than through impeachment).
Furthermore, Congress may not accomplish a removal through “ripper” legisla-
tion, whereby Congress ostensibly abolishes an office while simultaneously
recreating it and requiring a new appointment. See Constitutionality of Proposed
Legislation Requiring Renomination and Reconfirmation of Executive Branch
Officers Upon the Expiration of a Presidential Term, 11 Op. O.L.C. 25, 26 (1987).
For example, in vetoing the bill, mentioned above, requiring the incumbent
Director and Deputy Director of the Office of Management and Budget to be
reappointed subject to Senate confirmation, President Nixon explained:

      I do not dispute Congressional authority to abolish an office or to
      specify appropriate standards by which the officers may serve. When
      an office is abolished, the tenure of the incumbent in that office ends.
      But the power of the Congress to terminate an office cannot be used
      as a back-door method of circumventing the President’s power to
      remove. With its abolition and immediate re-creation of two offices,
      [this bill] is a device—in effect and perhaps in intent—to accomplish
      Congressional removal of the incumbents who lawfully hold those
      offices.

Senate Confirmation of OMB Director and Deputy Director, 9 Weekly Comp.
Pres. Doc. at 681. That veto was sustained. 119 Cong. Rec. 16503, 16764 (1973).
The following year, Congress passed legislation requiring Senate confirmation of
any future Director or Deputy Director of the Office of Management and Budget,
but not the incumbent officers. That bill was approved. Act of Mar. 2, 1974, Pub.
L. No. 93-250, 88 Stat. 11.
   While the DCIA under the Intelligence Reform Act is not the exact recreation
of the DCI—as its powers are reduced—it is, as explained above, the clear



                                         34
       Status of the Director of Central Intelligence Under the Intelligence Reform Act


continuation of that office in its capacity as head of the CIA. Thus, the same
constitutional defect would obtain here were the statute interpreted to require a
new appointment. The Constitution does not permit Congress to remove an officer
while continuing his office, even with somewhat reduced duties. 1
   In view of these serious constitutional doubts, even if the statutory analysis
were substantially less clear, we would avoid interpreting the Intelligence Reform
Act to require a new appointment for the then-current DCI. “[W]here an otherwise
acceptable construction of a statute would raise serious constitutional problems,” it
is appropriate to “construe the statute to avoid such problems unless such con-
struction is plainly contrary to the intent of Congress.” See Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988).

                                                   C.

   We have also considered, and rejected, the possibility that the DCI position
instead continues as the DNI. While the DNI position resembles the DCI in
significant respects (like the DCI, the DNI will serve as head of the intelligence
community and as the principal adviser to the President on intelligence matters
related to national security), the responsibilities and authority of the DNI in that
role are considerably greater than the DCI’s. Indeed, the desire to create a more
robust head of the intelligence community was a driving force behind the legisla-
tion. See H.R. Conf. Rep. No. 108-796, at 241 (2004) (“This legislation in part
implements the recommendations of the . . . ‘9/11 Commission’ . . . . includ[ing]
reorganization of the U.S. Intelligence Community by creating an empowered
Director of National Intelligence”). By contrast, as noted above, all of the DCIA’s
responsibilities and authority as head of the CIA are currently exercised by the
DCI.
   Congress provided that the current DCI may not serve as both the DNI and the
DCIA: The “individual serving in the position of Director of National Intelli-
gence,” the Intelligence Reform Act states, “shall not, while so serving, also serve
as the Director of the Central Intelligence Agency or as the head of any other
element of the intelligence community.” IRTPA § 1011(a) (new NSA § 102(c)),
118 Stat. at 3644. Given that Congress clearly intended to prohibit the current DCI
from serving as both the DNI and the DCIA, that the functions of the DCIA are
nearly identical to the current functions of the DCI as head of the CIA, and that the
functions of the DNI are substantially different from the current functions of the
DCI as head of the intelligence community, the statute most naturally suggests that

    1
      As discussed below, there may be cases where the addition of duties to an office will result in the
establishment of a new office requiring a new appointment. We do not believe that the mere reduction
of duties can ever result in a new office requiring a new appointment. We need not definitively resolve
this issue, however. It is clear that the removal of certain duties from the position of DCI here does not
render the position of DCIA a new office requiring a new appointment for constitutional purposes.




                                                   35
                      Opinions of the Office of Legal Counsel in Volume 29


the office of DCI is continued in the office of DCIA, albeit with a new title and
reduced responsibilities, and not in the office of DNI.
    We need not—and do not—decide whether the result would have been different
if, instead of establishing two positions (the DCIA and the DNI), the Intelligence
Reform Act had simply assigned the authorities of the new DNI to the existing
DCI. We decide only that where, as here, the Intelligence Reform Act establishes
two positions, one of which (the DCIA) exercises only powers currently exercised
by the pre-existing office and the other of which (the DNI) exercises considerable
additional powers, it is the former that is the continuation of the pre-existing
office. 2
    Accordingly, we conclude that when the Intelligence Reform Act takes effect
the then-current DCI would not require a new appointment to serve as DCIA.

                                                         C. KEVIN MARSHALL
                                                 Acting Deputy Assistant Attorney General
                                                         Office of Legal Counsel




    2
      Constitutional concerns are relevant to this conclusion as well—here, concerns related to the
Appointments Clause. U.S. Const. art. II, § 2. It is well established that “a statute creating a new office
and conferring it and its duties on the incumbent of an existing office would be unconstitutional under
the Appointments Clause.” Separation of Powers, 20 Op. O.L.C. at 157. As a corollary, Congress may
not “alter the duties and powers of existing offices . . . to achieve substantially the same result.” Id.; see
Shoemaker v. United States, 147 U.S. 282, 300 (1893) (“[W]hile Congress may create an office, it
cannot appoint the officer.”); Weiss v. United States, 510 U.S. 163, 174 (1994) (Congress may not
“circumvent[] the Appointments Clause by unilaterally appointing an incumbent to a new and distinct
office”). But where Congress has simply “increase[d] the power and duties of” positions that continue
to exist, and the new duties are “germane to the offices already held by” the incumbents, the Court has
found no infirmity. Shoemaker, 147 U.S. at 301; see also id. at 289 (Congress may “entrust the
performance of particular duties to officials already charged with duties of the same general descrip-
tion”) (describing holding of lower court); Weiss, 510 U.S. at 174–76; id. at 195–96 (Scalia, J.,
concurring in part and concurring in judgment). This Office has concurred in that view. See Separation
of Powers, 20 Op. O.L.C. at 157–59. In this case, although the “additional duties” of the DNI appear to
be “germane” to those of the DCI, see Shoemaker, 147 U.S. at 301, the additions are considerable.
There is at least a question whether Congress could confer such additions on the officer who is
currently DCI. Cf. Separation of Powers, 20 Op. O.L.C. at 158 (in discussing germaneness test,
considering whether officers’ functions with the additional duties “could be said” to have been “‘within
the contemplation of those who were in the first place responsible for their appointment and confirma-
tion’”) (quoting Legislation Authorizing the Transfer of Federal Judges From One District to Another,
4B Op. O.L.C. 538, 541 (1980)); Shoemaker, 147 U.S. at 301 (finding new duties neither “dissimilar
to” nor “outside the sphere of” prior duties); Olympic Fed. Sav. & Loan Ass’n v. Dir., Office of Thrift
Supervision, 732 F. Supp. 1183, 1193 (D. D.C. 1990) (finding violation where Congress largely
continued powers of three-person board but consolidated them in single, designated, pre-existing
officer). By contrast, the reduction or limitation of duties does not create the risk of a congressional
appointment. See Separation of Powers, 20 Op. O.L.C. at 157 n.92. Thus, by resolving the statutory
question as we do, we avoid the need to address a possible constitutional problem.




                                                     36
