Opinions

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Eligibility of a Retired Military Officer for Appointment as Administrator of the National Aeronautics and Space Administration

A retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—is eligible for appointment as Administrator of the National Aeronautics and Space Administration.

Constitutionality of the Matthew Shepard Hate Crimes Prevention Act

The two new criminal prohibitions created in the Matthew Shepard Hate Crimes Prevention Act would be constitutional.

Withdrawal of Office of Legal Counsel Opinion

One previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office.

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

Section 7054 of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act, 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 UN 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.

Validity of Statutory Rollbacks as a Means of Complying With the Ineligibility Clause

Where a salary increase for an executive 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 office before the appointment.

Constitutionality of the Ronald Reagan Centennial Commission Act of 2009

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 Appointments Clause, the Ineligibility Clause, and the separation of powers.

Withdrawal of Office of Legal Counsel CIA Interrogation Opinions

Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.

Status of Presidential Memorandum Addressing the Use of Polygraphs

An undated four-page memorandum from President Lyndon Johnson entitled “Use of the Polygraph in the Executive Branch” and addressed to the heads of Executive Branch departments and agencies, which was neither issued as a directive to the Executive Branch nor understood contemporaneously to have legal effect, does not now bind the Department of Justice or other entities within the Executive Branch.

Legal Issues Relating to the Testing, Use, and Deployment of an Intrusion-detection System (EINSTEIN 2.0) to Protect Unclassified Computer Networks in the Executive Branch

An intrusion-detection system known as EINSTEIN 2.0 used to protect civilian unclassified networks in the Executive Branch against malicious network activity complies with the Fourth Amendment to the Constitution, the Wiretap Act, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system.

Meaning of “Temporary” Work Under 8 U.S.C. § 1101(a)(15)(H)(ii)(b)

A regulation proposed by United States Citizenship and Immigration Services providing that “temporary” work under the H-2B visa program “[g]enerally . . . will be limited to one year or less, but . . . could last up to 3 years” is based on a permissible reading of 8 U.S.C. § 1101(a)(15)(H)(ii)(b) and is consistent with the 1987 opinion of this Office addressing the meaning of “temporary” work under 8 U.S.C. § 1101(a)(15)(H)(ii)(a).

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