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OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE CONSISTING OF SELECTED MEMORANDUM OPINIONS ADVISING THE PRESIDENT OF THE UNITED STATES, THE ATTORNEY GENERAL, AND OTHER EXECUTIVE OFFICERS OF THE FEDERAL GOVERNMENT IN RELATION TO THEIR OFFICIAL DUTIES EDITOR Nathan A. Forrester VOLUME 26 2002 WASHINGTON 2012 227-329 VOL_26_PROOF.pdf 1 10/22/12 11:13 AM 227-329 VOL_26_PROOF.pdf 2 10/22/12 11:13 AM Attorney General John D. Ashcroft Assistant Attorney General Office of Legal Counsel Jay S. Bybee Deputy Assistant Attorneys General Office of Legal Counsel Sheldon Bradshaw Joan L. Larsen Patrick F. Philbin M. Edward Whelan III John C. Yoo iii 227-329 VOL_26_PROOF.pdf 3 10/22/12 11:13 AM OFFICE OF LEGAL COUNSEL Attorney-Advisers (2002) Jonathan G. Cedarbaum Jeffery P. Kehne Paul P. Colborn Jennifer L. Koester Robert. J. Delahunty Daniel L. Koffsky John A. Eisenberg Caroline D. Krass Curtis E. Gannon Martin S. Lederman Rosemary A. Hart Herman Marcuse James C. Ho Nick Quinn Rosenkranz Clare Huntington Leslie A. Simon Gregory F. Jacob George C. Smith Steffen J. Johnson Robert W. Werner iv 227-329 VOL_26_PROOF.pdf 4 10/22/12 11:13 AM FOREWORD The Attorney General has directed the Office of Legal Counsel to publish selected opinions on an annual basis for the convenience of the Executive, Legislative, and Judicial Branches of the government, and of the professional bar and the general public. The first twenty-five volumes of opinions published covered the years 1977 through 2001. The present volume covers 2002. Volume 26 includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication. A substantial number of opinions issued during 2002 are not included. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§ 511-513. Pursuant to 28 U.S.C. § 510, the Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of his or her function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Depart­ ment of Justice. 28 C.F.R. § 0.25. The Office expresses its gratitude for the efforts of its tireless paralegal and administrative staff—Elizabeth Farris, Melissa Kassier, Jessica Sblendorio, Richard Hughes, Dyone Mitchell, and Lawan Robinson—in shepherding the opinions of the Office from memorandum form to online publication to final production in these bound volumes. Without them, none of this would be possible. v 227-329 VOL_26_PROOF.pdf 5 10/22/12 11:13 AM 227-329 VOL_26_PROOF.pdf 6 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 Contents Page Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 (February 7, 2002)....................................................................... 1 Application of 18 U.S.C. § 203 to Former Employee’s Receipt of Attorney’s Fees in Qui Tam Action (February 28, 2002)......................... 10 Role of Legal Guardians or Proxies in Naturalization Proceedings (March 13, 2002)...................................................................................... 16 Centralizing Border Control Policy Under the Supervision of the Attorney General (March 20, 2002) ........................................................................ 22 Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power (April 19, 2002).............................................................. 29 Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service (May 8, 2002)................................................................... 32 Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall (May 30, 2002)............................................................................. 40 Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants (June 12, 2002)......................................................................................... 44 Survey of the Law of Expatriation (June 12, 2002)......................................... 56 Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings (July 9, 2002)............................................................................ 72 Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs (July 22, 2002) ........................................... 78 Application of 44 U.S.C. § 1903 to Procurement of Printing of Government Publications (August 22, 2002) ................................................................ 104 Relationship Between Section 203(d) of the Patriot Act and the Mandatory Disclosure Provision of Section 905(a) of the Patriot Act (September 17, 2002)................................................................................................... 107 Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy (September 25, 2002) ............................................................... 114 Authority of the President Under Domestic and International Law to Use Military Force Against Iraq (October 23, 2002)....................................... 143 Effect of a Recent United Nations Security Council Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq (November 8, 2002)................................................... 199 vii 227-329 VOL_26_PROOF.pdf 7 10/22/12 11:13 AM Designation of Acting Solicitor of Labor (November 15, 2002)..................... 211 Expiration of Authority of Recess Appointees (November 22, 2002)............. 216 Whether False Statements or Omissions in Iraq’s Weapons of Mass Destruction Declaration Would Constitute a “Further Material Breach” Under U.N. Security Council Resolution 1441 (December 7, 2002) ....... 217 Duty to File Public Financial Disclosure Report (December 19, 2002) .......... 225 Under Secretary of the Treasury for Enforcement (December 19, 2002)........ 230 Legality of Fixed-Price Intergovernmental Agreements for Detention Services (December 31, 2002).................................................................. 235 viii 227-329 VOL_26_PROOF.pdf 8 10/22/12 11:13 AM OPINIONS OF THE OFFICE OF LEGAL COUNSEL 227-329 VOL_26_PROOF.pdf 9 10/22/12 11:13 AM 227-329 VOL_26_PROOF.pdf 10 10/22/12 11:13 AM Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 The President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War. February 7, 2002 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked for our Office’s views concerning the status of members of the Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (“GPW”). Assuming the accuracy of various facts provided to us by the Department of Defense (“DoD”), we conclude that the President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war (“POW”) status under GPW. First, we explain that the Taliban militia cannot meet the requirements of Article 4(A)(2), because it fails to satisfy at least three of the four conditions of lawful combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (“Hague Convention”), which are expressly incorporated into Article 4(A)(2). Second, we note that neither Article 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of lawful combat contained in the Hague Convention also govern Article 4(A)(1) and (3) determinations in any case. Finally, we explain why there is no need to convene a tribunal under Article 5 to determine the status of the Taliban detainees. I. Article 4(A) of GPW defines the types of persons who, once they have fallen under the control of the enemy, are entitled to the legal status of POWs. The first three categories are the only ones relevant to the Taliban. Under Article 4(A)(1), individuals who are “members of the armed forces of a Party to the conflict,” are entitled to POW status upon capture. Article 4(A)(3) includes as POWs members of “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Article 4(A)(2) includes as POWs members of “other militias” and “volunteer corps,” including “organized resistance movements” that belong to a Party to the conflict. In addition, members of militias and volunteer corps must “fulfill” four conditions: (a) “being commanded by a person responsible for his subordinates”; (b) “having a fixed distinctive sign recognizable at a distance”; (c) “carrying arms openly”; and (d) “conducting their operations in accordance with the laws and customs of war.” Those four conditions reflect those required in the 1907 Hague 1 227-329 VOL_26_PROOF.pdf
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