Congress that acknowledged the President's right to protect state secrets, the public disclosure of which he determined could adversely affect national security. Jefferson's efforts were successful, and on April 4, 1792, the House resolved that the President of the United States be requested to 3 Annals of Cong. 536 (1792) (emphasis added). 1 Thus, while President Washington accommodated Congress' interests, he explicitly reserved the right of the President to withhold national security information. Successive Presidents have consistently adhered to the position laid down by Washington, Hamilton and Jefferson, and the Department of Justice has long articulated the position. For example, Chief Justice William Rehnquist, when he was the Assistant Attorney General for the Office of Legal Counsel, stated that "the President has the power to withhold from the Senate information in the field of foreign relations or national security if in his judgment disclosure would be incompatible with the public interest."2 This Administration will continue to adhere to this position. No Let me say that I am not sure it is useful for us to exchange volleys over competing legal theories on this issue. concrete dispute over national security information is before us. 1 See Memorandum for William French Smith, Attorney General of the United States, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, 6 op. 0.L.C. 751 (1982) (compiling historical examples of cases in which the President withheld from Congress information the release of which he determined could jeopardize national security). 2 Memorandum from John R. Stevenson, Legal Adviser, Department of State, and William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President's Executive Privilege to Withhold Foreign Policy and National Security Information 7 (Dec. 8, 1969). The Supreme Court has expressly recognized the President's constitutional authority to protect national security information. See Department of the Navy v. Egan, 484 U.S. 518, 527 (1988); New York Times Co. v. United States, 403 U.S. 713, 728-30 (1971) (Stewart, J., concurring); United States v. Nixon, 418 U.S. 683, 710 (1974). What is important is that on a practical, day-to-day basis we are able to work out our differences in this sensitive area in good faith. Based on our relationship, I am confident we will be able to do so. incer Dick Thornburgh Office of the Attorney General May 17, 1990 Honorable Don Edwards Dear Don: Yesterday, when testified before the Judiciary Committee, you asked me two questions relating to the binding nature of opinions issued by the Department's Office of Legal Counsel (OLC). This letter is intended to dispel any confusion which may have resulted from my response. In your first question, you asked me whether I would be able to provide you with a copy of OLC's opinion on extra-territorial arrest authority. As I have indicated in a letter I sent to Chairman Brooks recently, and in my answer to you yesterday, OLC's legal advice to me is analogous to confidential information conveyed in the context of a lawyer-client relationship. It is therefore not binding, but rather advisory. When you next asked me about OLC's 1987 opinion on the applicability of the Davis-Bacon Act to leases negotiated by the Veterans Administration, now the Department of Veterans Affairs (VA), I did not clarify the distinction between advisory opinions conveyed to me and OLC opinions issued for the purpose of resolving disputes between agencies within the Executive Branch. OLC issued its Davis-Bacon Opinion in its latter role, and its determination that VA leases of privately owned facilities are not covered by the Act is binding on both the Department of Labor and the VA, as well as other agencies involved in the dispute. OLC has long performed this role, which is reflected in Executive Order 12146 (enclosed), issued during the Carter Administration and continued in effect ever since. As you can see, its purpose was to authorize the Attorney General, and, hence, OLC, to resolve legal disputes within the Executive Branch. Without the ability to issue binding opinions, OLC's review function would have less effect in resolving disputes and maintaining a consistent legal position within the Administration. - 2 I hope the foregoing has clarified matters, and I look forward to working with you and your colleagues in the weeks and months remaining in this Congress. Enclosure CC: Honorable Jack Brooks Dick Thornburgh Codification of Presidential Proclamations and Executive Orders nees. The Attorney General shall receive recommendations of such persons from any person, commission or organization. 1-103. The use of commissions to notify the public of vacancies and to make recommendations for district judge is encouraged. The Attorney General shall make public the suggested guidelines for such commissions. 1-104. Before making recommendations, the Attorney General shall consider whether: (a) Public notice of the vacancy has been given and an affirmative effort has been made, in the case of each vacancy, to identify qualified candidates, including women and members of minority groups; (b) The selection process was fair and reasonable; (c) The person or persons recommended meet the standards for evaluation set forth in Section 1-2 of this Order. 1-105. In evaluating proposed nominees, consideration will be given to reports of Department of Justice investigations and all other relevant information concerning potential nominees and their qualifications. 1-2. Standards for Evaluating Proposed Nominees. 1-201. The standards to be used in determining whether a person is qualified to serve as a district judge are whether that person: (a) Is a citizen of the United States, is a member of a bar of a state, territory, possession or the District of Columbia, and is in good standing in every bar in which that person is a member; (b) Possesses, and has a reputation for, integrity, good character, and common sense; (c) Is, and has a reputation for being, fair, experienced, even-tempered and free of biases against any class of citizens or any religious or racial group; (d) Is of sound physical and mental health; (e) Possesses and has demonstrated commitment to equal justice under law; (1) Possesses and has demonstrated outstanding legal ability and competence, as evidenced by substantial legal experience, ability to deal with complex legal problems, aptitude for legal scholarship and writing, and familiarity with courts and their processes; (g) Has the ability and the willingness to manage complicated pretrial and trial proceedings, including the ability to weigh conflicting testimony and make factual determinations, and to communicate skillfully with jurors and witnesses. 1-3. Amendments of Existing Orders. [Sec. 1-3 amended EO 12059 of May 11, 1978, and EO 12084 of Sept. 27, 1978, both of which were revoked by EO 12305 of May 5, 1981.) Executive Order 12146-Management of Federal legal resources SOURCE: The provisions of Executive Order 12146 of July 18, 1979, appear at 44 FR 42657, 3 CFR, 1979 Comp., p. 409, unless otherwise noted. By the authority vested in me as President by the Constitution and statutes of the United States of America, it is hereby ordered as follows: 1-1. Establishment of the Federal Legal Council. |