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Opinions
Legal Authorities Supporting the Activities of the National Security Agency Described by the President
The activities described by the President, in which he has authorized the National Security Agency to intercept international communications into or out of the United States of persons linked to al Qaeda or an affiliated terrorist organization are lawful in all respects.
The President’s use of his constitutional authority, as supplemented by statute in the Authorization for Use of Military Force enacted on September 18, 2001, is consistent with the Foreign Intelligence Surveillance Act and is also fully protective of the civil liberties guaranteed by the Fourth Amendment.
Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208
Under 18 U.S.C. § 208, a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter.
Application of the Miscellaneous Receipts Act to the Settlement of False Claims Act Suits Concerning Contracts With the General Services Administration
The Miscellaneous Receipts Act allows the General Services Administration to retain as a “refund to appropriations” the entire amount representing actual damages paid by the Sprint Corporation and Worldcom, Inc. in settlement for overcharging the federal government for telecommunications services under contracts with GSA.
Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying by Union Representatives
Under 18 U.S.C. § 1913, federal employees who are union representatives may not use official time to engage in “grass roots” lobbying in which, on behalf of their unions, they ask members of the public to communicate with government officials in support of, or opposition to, legislation or other measures.
Waiver of Sovereign Immunity With Respect to Whistleblower Provisions of Environmental Statutes
The federal government’s sovereign immunity has been waived with respect to the whistleblower provisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the whistleblower provision of the Clean Water Act.
Appointments to the Board of the Legal Services Corporation
The President has authority to appoint a member of the Board of the Legal Services Corporation who has been confirmed after his or her statutory term of office has expired, where the holdover provi-sion of the statute allows a member to serve until a successor is appointed.
Application of 18 U.S.C. § 207(c) to Proposed Communications Between Retired Navy Flag Officer and Marine Corps Commanders in Iraq Regarding Security Issues
Although more detailed information is needed to make a complete determination in this fact-sensitive area, it appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed communications between a retired Navy flag officer and Marine Corps commanders regarding the security situation in Iraq.
Proposed Amendments to Military Commission Order No. 1
The Secretary of Defense could, consistent with the President’s Military Order of November 13, 2001, revise Military Commission Order No. 1 so that the presiding officer would rule upon all questions of law (subject to the requirements of section 4(c)(3) of the Military Order regarding questions of admissibility), and the other members of the commission would make findings and pronounce sentence.
Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State Governors
The federal government has authority under the Defense Base Closure and Realignment Act of 1990, as amended, to close or realign a National Guard installation without the consent of the governor of the state in which the installation is located.
Assignment of Certain Functions Related to Military Appointments
Section 531(a)(1) of title 10 does not affirmatively prohibit delegation to the Secretary of Defense of the President’s appointment authority.
The Appointments Clause of the Constitution does not prohibit Congress from allowing the President to choose between making such an appointment himself and delegating it to the Secretary of Defense.
So long as each nomination is submitted to the Secretary of Defense for approval (whether individually or in groups) and each appointment is made in the name of the Secretary of Defense (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer), the Constitution would permit much of the legwork of the appointment process to be delegated to a subordinate officer below the Secretary of Defense.