Memoranda & Opinions

Overview of Document

This opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340-2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of Conduct under 18 U.S.C. §§ 2340-2340A.

That statute prohibits conduct "specifically intended to inflict severe physical or mental pain or suffering." This opinion concludes that "severe" pain under the statute is not limited to "excruciating or agonizing" pain or pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death."

The statute also prohibits certain conduct specifically intended to cause "severe physical suffering" distinct from "severe physical pain."

December 30, 2004

In appointing a new member to the United States Commission on Civil Rights, in order to comply with the statutory requirement that “[n]ot more than 4 of the members shall at any one time be of the same political party,” the President should look to the party affiliation of the other members at the time the new member is appointed.

December 6, 2004

Under 42 U.S.C. § 1975, the six-year term of a member of the United States Commission on Civil Rights begins upon the expiration of his or her predecessor's term, even if the succeeding member is appointed some time after the predecessor's term ends.

November 30, 2004

Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice.

November 16, 2004

The payment of travel expenses for International Trade Administration fellows is barred by 31 U.S.C. § 1345 because the proposed ITA fellowship program that would bring representatives from various countries to the United States would constitute a “meeting” within the meaning of section 1345.

October 7, 2004

Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier's ability to honor the employee's flight privileges.

An employee with flight privileges and the airline that provided them have a "covered relationship" that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee's participating in a matter involving that airline would create an "appearance problem." The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case.

Although flight privileges could constitute a "payment" within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an "extraordinary payment" under the described circumstances.

Flight privileges are not a type of interest that would qualify as "stock" or "any other securities interest" under a Department of Transportation regulation (5 C.F.R. § 6001.104(b)) that supplements the OGE impartiality regulations.

August 30, 2004

Because state and local public officials, including a county commissioner, are not "private citizens" who would be appointed "from private life" within the ordinary meaning of those terms in 20 U.S.C. § 957(b), such officials are disqualified from appointment to the National Council for the Humanities.

August 27, 2004

The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.

August 24, 2004

Informational video news releases produced by the Department of Health and Human Services regarding the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 do not constitute impermissible "covert propaganda" in violation of the Consolidated Appropriations Resolution, 2003, which forbids the expenditure of appropriated funds for "publicity or propaganda purposes."

July 30, 2004

The Department of Commerce may prescribe regulations limiting the partisan political activities of the Commissioned Officers Corps in the National Oceanic and Atmospheric Administration.

July 29, 2004

18 U.S.C. ' 207(f) prohibits a former senior employee of an Executive Branch department from representing a foreign entity before Members of Congress within one year of the termination of his employment.

June 22, 2004

Consistent with longstanding Executive Branch positions, Department of Health and Human Services officials have the authority to prohibit officers or employees of the Department from providing information to Congress.

May 21, 2004

The National Veterans Business Development Corporation is a “Government corporation” under 5 U.S.C. § 103 and an “agency” under 31 U.S.C. § 9102.

March 19, 2004

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV) governs the United States occupation of Iraq.

The following persons, if captured in occupied Iraq, are not "protected persons" within the meaning of article 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.

March 18, 2004

Whether an agency's revolving fund is entitled to receive from a False Claims Act recovery (in addition to single damages equal to the actual amount of the payment made as a result of the false claim) pre-judgment or pre-settlement interest on that payment and investigative and administrative costs attributable to the false claim depends on whether the fund is authorized to borrow money at interest, earn interest on its own investments, and pay its own investigative and administrative expenses.

March 12, 2004

A contractor ordinarily will not be criminally liable for assisting in certain foreign government programs for the aerial interdiction of illegal narcotics traffic.

March 1, 2004

The Foreign Claims Settlement Commission is subject to the Attorney General's direction in administrative matters, except where that direction would interfere with the Commission's independence in adjudicating claims.

February 20, 2004

January 12, 2004