Opinions
Administratively Uncontrollable Overtime of Agent/Examiners in the FBI Laboratory
Under 5 U.S.C. § 5545(c)(2), premium pay on an annual basis is authorized for “Administratively Uncontrollable Overtime” where duties of position are of such a nature that they cannot be performed during normal business hours.
Whether work performed by agent-examiners in the Federal Bureau of Investigation Laboratory is by its nature such as to qualify them for premium pay under § 5545(c)(2) is a question of fact.
Application of Conflict of Interest Rules to the Conduct of Government Litigation by Private Attorneys
Whether the American Bar Association’s Code of Professional Responsibility would bar private attorneys, retained as contractors to represent the interests of the United States in railroad litigation, from simultaneously representing other parties whose interests are adverse to those of the United States, depends on the facts of each situation.
Ethical constraints on private attorneys retained to conduct railroad litigation on behalf of the United States do not end with the termination of the railroad litigation itself.
The making of litigation judgments is a function at the core of the President’s Article II duty to take ca re that the laws be faithfully executed, and must, therefore, be performed by those who serve under, and are responsible ultimately to, the President.
The scope of ethical restraints on private attorneys retained by the United States depends upon extent of necessary interaction with and supervision by government officials; if close interaction and supervision can be anticipated, likelihood of ethical problems developing increases.
Appendix identifies and discusses issues under the conflict of interest laws applicable to the temporary appointment of an attorney in private practice as a government attorney.
Seizure of Foreign Ships on the High Seas Pursuant to Special Arrangements
The United States has authority under international law to enter into agreements to stop, search, and detain foreign vessels on the high seas that are suspected of trafficking in illicit drugs.
The United States may limit its jurisdiction over a foreign flag vessel seized on the high seas, and the vessel may be returned to the flag state at its request without compliance with domestic forfeiture law.
Where the United States is authorized under international law to exercise its police powers to detain ships on behalf of their flag state, such detention does not constitute a taking under the Fifth Amendment. However, wh ere a ship is seized concurrently on behalf of the United States for violation of U.S. customs laws, a claimant is entitled to a prompt adjudication of his rights in the seized property.
Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization
The President’s inherent, constitutional authority as Commander-in-Chief, his broad foreign policy powers, and his duty to take care that the laws be faithfully executed generally empower him to deploy the armed forces abroad without a declaration of war by Congress or other congressional authorization. A historical pattern of presidential initiative and congressional acquiescence in emergency situations calling for immediate action, including situations involving rescue and retaliation, confirm this inherent power, and the courts have generally declined to review its use.
The War Powers Resolution generally precludes presidential reliance on statutory authority for military actions clearly involving hostilities, unless a statute expressly authorizes such actions, and regulates the President’s use of his constitutional powers in this regard. In particular, it introduces consultation and reporting requirements in connection with any use of the armed forces, and requires the termination of such use within 60 days or whenever Congress so directs.
The term “United States Armed Forces” in the War Powers Resolution does not include military personnel detailed to and under the control of the Central Intelligence Agency. [In an opinion issued on October 26, 1983, published as an appendix to this opinion, this conclusion is reconsidered and reversed.]
The term “hostilities” in the War Powers Resolution does not include sporadic military or paramilitary attacks on our armed forces stationed abroad; furthermore, its applicability requires an active decision to place forces in a hostile situation rather than their simply acting in self-defense.
The requirement of consultation in the War Powers Resolution is not on its face unconstitutional, though it may, if strictly construed, raise constitutional questions.
The provision in the War Powers Resolution permitting Congress to require removal of our armed forces in particular cases by passage of a concurrent resolution not presented to the President is a prima facie violation of Article I, § 7 of the Constitution.
Authority of National Telecommunications and Information Administration to Monitor Radio Communications
The National Telecommunications and Information Administration (NTIA) may monitor radio communications to the extent reasonably necessary to discharge its functions under 47 U.S.C. § 305(a) and 15 U.S.C. § 272(12) & (13).
Title III of the Omnibus Crime Control and Safe Streets Act of 1963 prohibits NTIA from aurally monitoring communications between a radio and a land-line telephone.
Management of Admiralty Island and Misty Fiords National Monuments
Executive Order No. 6166 leaves intact forest reservations on national monument lands, and the Department of Agriculture and the Department of the Interior thus share administrative responsibility for Admiralty Island and Misty Fiords National Monuments.
Conclusion of opinion of February 9, 1979 (3 Op. O.L.C. 85 (1979)), that management functions in connection with the two national monuments must be transferred from the Department of Agriculture to the Department of the Interior, reconsidered and amended.
Applicability of Criminal Statutes and “Whistleblower” Legislation to Unauthorized Employee Disclosures
Several criminal statutes may be applicable to improper disclosure by a Justice Department employee of information pertaining to Federal Bureau of Investigation (FBI) undercover investigations.
Employees of the FBI are excepted from the general “whistleblower” provisions of the Civil Service Reform Act of 1978; those provisions do not in any event apply where a disclosure is specifically prohibited by law, as is apparently the case here.
Payment of Private Counsel Fees Under the Department of Justice Representation Program
Whether fee statements submitted to the government by private counsel retained to represent a government employee may be disclosed to the public without violating applicable ethical standards depends upon the facts of each case.
The governmen t’s practice of paying some fees and expenses charged by private counsel but not paying others does not present a substantial ethical question, as long as the practice is clearly understood by the employee-clients and their private attorneys.
Applicability of Control of Paperwork Amendments of 1978 to Certain Activities of the Civil Rights Division
Control of Paperwork Amendments of 1978, which impose restrictions on federal agencies’ collection of data from educational institutions, do not apply to collection of data by the Department of Justice in connection with school desegregation litigation.
Presidential Authority Under the Trade Expansion Act toAdjust Shipments of Oil to and from Puerto Rico
Neither the uniformity of duties clause of the Constitution, Art. I, § 8, cl. 1, nor the port preference clause, Art. I, § 9, cl. 6, require uniformity of import quotas between the mainland and Puerto Rico.
The President has authority under § 232(b) of the Trade Expansion Act of 1962 to impose separate quantitative restrictions on oil imports into the U.S. mainland and Puerto Rico, respectively.
Any system of separate quotas imposed under the Trade Expansion Act must be justified by national security concerns.
By implication, § 232(b) authorizes the President to impose quotas on shipments of oil from Puerto Rico to the U.S. mainland in order to make the separate import quotas effective.