Opinions
Additional Questions Concerning Use of the EINSTEIN 2.0 Intrusion-Detection System
The deployment of an intrusion-detection system known as the EINSTEIN 2.0 program on the unclassified computer networks of the Executive Branch is consistent with the federal and state laws discussed in this opinion.
Under the best reading of the statute, the EINSTEIN 2.0 program would not violate section 705 of the Communications Act, because it would fall within section 705’s exception permitting a person to “divulge” a communication through “authorized channels of transmission or reception,” which allows either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication’s disclosure, including by clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system.
If section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0 program, the exception in section 2702(c)(1)(C) permitting disclosure based on “the lawful consent of the customer or subscriber” would also apply, because in this context the government, and no other party, should be understood as the “customer or subscriber” of the Internet service provider.
If a state law imposed requirements on the EINSTEIN 2.0 program exceeding those imposed by these federal statutes, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution.
Reaffirming Use of the EINSTEIN 2.0 Intrusion- Detection System to Protect Unclassified Computer Networks in the Executive Branch
Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen-register and trap-and-trace provisions of 18 U.S.C. § 3121 et seq., provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system.
Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws, which would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and be unenforceable under the Supremacy Clause to the extent that such laws purport to apply to the conduct of federal agencies and agents conducting EINSTEIN 2.0 operations and impose requirements that exceed those imposed by the federal statutes above.
Eligibility of Retired Military Officer for Appointment as NASA Administrator
A retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—qualifies for appointment as Administrator of the National Aeronautics and Space Administration under 42 U.S.C. § 2472(a), requiring that the Administrator be “appointed from civilian life.”
Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate Crimes Prevention Act—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, religion, or national origin of any person”—would be a permissible exercise of Congress’s authority to enforce the Thirteenth Amendment, at least insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment.
The prohibition in proposed section 249(a)(2) of S. 909—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person”—would be a permissible exercise of Congress’s authority under the Commerce Clause, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce.
Withdrawal of Opinion on CIA Interrogations
A previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office.
Assistance of Counsel in Removal Proceedings (II)
The Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 (Att’y Gen. 2009); Assistance of Counsel in Removal Proceedings (I), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.), is vacated.
The Acting Director of the Executive Office for Immigration Review shall initiate rulemaking procedures as soon as practicable to evaluate the pre-Compean framework for reviewing claims of ineffective assistance of counsel in deportation proceedings and to determine what modifications should be proposed for public consideration.
Pending the issuance of a final rule, the Board of Immigration Appeals and Immigration Judges should apply the pre-Compean standards to all pending and future motions to reopen removal proceedings based upon ineffective assistance of counsel.
Legislation Prohibiting Spending for Delegations to U.N. Agencies Chaired by Countries That Support International Terrorism
Section 7054 of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2009—which purports to prohibit all funds made available under title I of that Act from being used to pay the expenses for any United States delegation to a specialized U.N. agency, body, or commission that is chaired or presided over by a country with a government that the Secretary of State has determined supports international terrorism—unconstitutionally infringes on the President’s authority to conduct the Nation’s diplomacy, and the State Department may disregard it.
Statutory Rollback of Salary to Permit Appointment of Member of Congress to Executive Office
Where a salary increase for an office would otherwise create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by legislation rolling back the salary of the executive office before the appointment.
Participation of Members of Congress in the Ronald Reagan Centennial Commission
Provisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that six of eleven commissioners of the Ronald Reagan Centennial Commission would be members of Congress, appointed by congressional leadership, would raise concerns under the Appointment Clause, the Ineligibility Clause, and the separation of powers.
Withdrawal of Four Opinions on CIA Interrogations
Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.