                       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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