Authority of the Deputy Attorney General Under Executive Order 12333, Memorandum Opinion for the Associate Deputy Attorney General [November 5, 2001]   [open pdf - 89KB]

This memorandum from the Justice Department's Office of Legal Counsel deals with the powers that the Deputy Attorney General possesses. "You have asked for our opinion whether the Deputy Attorney General has the authority to grant approvals under section 2.5 of Exec. Order No.12333, 3 C.F.R. 200 (1981 Comp.). We believe that he does. Executive Order No. 12333 addresses the conduct of intelligence activities. Section 2.5 provides: The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such technique shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 ['FISA'], shall be conducted in accordance with that Act, as well as this Order. Under the Department's regulations, the Deputy Attorney General 'is authorized to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.' 28 C.F.R. § 0.15(a) (2000). That regulation rests on the Attorney General's statutory authority to 'make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.' 28 U.S.C. § 510 (1994). Consequently, the Deputy Attorney General may exercise the Attorney General's power under section 2.5 of the Executive Order, unless by law the Attorney General must exercise that power personally."

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