(Slip Opinion)
The Department of Defense’s Authority to Conduct
Background Investigations for Its Personnel
Section 925 of the National Defense Authorization Act for Fiscal Year 2018 authorizes
the Department of Defense to conduct the background investigations for its personnel
currently performed by the National Background Investigations Bureau of the Office
of Personnel Management, including investigations to determine whether those per-
sonnel may be granted security clearances giving them access to classified information
or whether they are eligible to hold sensitive positions.
This statutory reallocation of investigative authority from one part of the Executive
Branch to another does not raise constitutional concerns. It does not infringe upon the
President’s constitutional role in protecting national security information.
February 7, 2018
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF PERSONNEL MANAGEMENT
You have asked whether the Department of Defense (“DoD”) has the
authority to conduct the background investigations for its personnel
currently performed by the National Background Investigations Bureau
(“NBIB”), an entity within the Office of Personnel Management
(“OPM”). Those background investigations include investigations to
determine whether DoD personnel may be granted a security clearance
giving them access to classified information or whether they are eligible
to hold a sensitive position. 1 You indicated that, in your view, a statutory
amendment or new executive order would be necessary for DoD to as-
sume these functions. See OPM Opinion Request at 9–10. 2
1 See Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal
Counsel, from Theodore M. Cooperstein, General Counsel, Office of Personnel Manage-
ment at 1–2, 9–10 (Oct. 4, 2017) (“OPM Opinion Request”); see also Letter for Curtis E.
Gannon, Acting Assistant Attorney General, Office of Legal Counsel, from Theodore M.
Cooperstein, General Counsel, Office of Personnel Management (Oct. 12, 2017) (“OPM
Opinion Request Supplement”).
2 We also received views from DoD and the Office of the Director of National Intelli-
gence (“ODNI”). See Letter for Curtis E. Gannon, Acting Assistant Attorney General,
Office of Legal Counsel, from William S. Castle, Acting General Counsel, Department
of Defense (Nov. 9, 2017) (“DoD Views Letter”); E-mail for Henry C. Whitaker, Office
of Legal Counsel, from Spencer R. Fisher, National Counterintelligence and Security
Center, ODNI, Re: OPM OLC opinion request (Nov. 3, 2017 1:28 PM) (“ODNI Views E-
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Opinions of the Office of Legal Counsel in Volume 42
After you requested this opinion, the President signed into law the
National Defense Authorization Act for Fiscal Year 2018 (“FY 2018
NDAA”), Pub. L. No. 115-91,
131 Stat. 1283 (2017). Section 925 of the
NDAA provides that “[t]he Secretary of Defense has the authority to
conduct security, suitability, and credentialing background investigations
for Department of Defense personnel,”
id. § 925(a)(1), 131 Stat. at 1526,
and explains how DoD should exercise that authority, id. § 925(a)(2),
(b), 131 Stat at 1526–27. We conclude that section 925 unambiguously
authorizes DoD to conduct the investigations at issue and that this au-
thorization is constitutional. We thus need not consider whether DoD
possessed this authority under previous statutes or executive orders.
I.
Before 2003, DoD performed certain background investigations for its
own personnel. See OPM Opinion Request Supplement at 1; OPM Opin-
ion Request at 4 n.8. Pursuant to a delegation of authority from OPM,
those investigations included applicants for, and employees in, competi-
tive service positions within DoD. Id. In 2003, the National Defense
Authorization Act for FY 2004 (“FY 2004 NDAA”) authorized DoD to
transfer those investigative functions to OPM so long as certain condi-
tions were met, including that DoD and OPM agreed to the transfer. Pub.
L. No. 108-136, § 906(a),
117 Stat. 1392, 1561 (2003). In October 2004,
OPM and DoD agreed to the transfer, and OPM assumed control over
these functions by February 2005. See DoD Views Letter at 3–4 & att. 2.
In December 2004, Congress passed the Intelligence Reform and Ter-
rorism Prevention Act of 2004 (“IRTPA”), Pub. L. No. 108-458,
118 Stat.
3638. Section 3001 of that law, which has been codified at
50 U.S.C.
§ 3341 and is referred to subsequently as section 3341, instructed the
mail”). In addition, we received further submissions from OPM, DoD, and ODNI regard-
ing the effect of section 925 of the National Defense Authorization Act for Fiscal Year
2018. See E-mail for Henry C. Whitaker, Office of Legal Counsel, from Robert J.
Girouard, Office of Personnel Management, Re: OPM opinion request (Oct. 18, 2017 1:08
PM) (“OPM Supplemental Views E-mail”); E-mail for Henry C. Whitaker, Office of
Legal Counsel, from Spencer R. Fisher, National Counterintelligence and Security Center,
ODNI, Re: OPM OLC opinion request (Dec. 1, 2017 5:31 PM); Letter for Steven A.
Engel, Assistant Attorney General, Office of Legal Counsel, from William S. Castle,
Acting General Counsel, Department of Defense (Dec. 7, 2017).
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Department of Defense’s Authority to Conduct Background Investigations
President to select a single executive branch agency to oversee security
clearance investigations and adjudications and to set uniform policies in
this area throughout the United States Government. See
id. § 3001(b)(1)–
(2), (4), 118 Stat. at 3705–10 (codified at
50 U.S.C. § 3341(b)(1)–(2),
(4)). That section further required that, “[n]otwithstanding any other pro-
vision of law,” the President, in consultation with the designated oversight
agency, would select “a single agency . . . to conduct, to the maximum
extent practicable, security clearance investigations of employees and
contractor personnel of the United States Government who require access
to classified information and to provide and maintain all security clear-
ances of such employees and contractor personnel.”
Id. § 3001(c)(1), 118
Stat. at 3707 (codified at
50 U.S.C. § 3341(c)(1)). Section 3341 also
authorized the oversight agency to designate “other agencies to conduct
such investigations” if “appropriate for national security and efficiency
purposes.”
Id.
At present, those provisions of section 3341 have been implemented in
Executive Orders that charge the Director of National Intelligence with
oversight of security clearance investigations and adjudications. See Exec.
Order No. 13764, § 3(s),
82 Fed. Reg. 8115, 8123 (Jan. 17, 2017) (amend-
ing Exec. Order No. 13467, § 2.5(e), 3 C.F.R. 196 (2008)). In those
Orders, the President has also charged OPM with overseeing suitability
investigations and determinations. See id. §§ 1(a)(iii), 3(s) (amending
Civil Service Rule II,
5 C.F.R. §§ 2.1(a), and Exec. Order No. 13467,
§ 2.5(b)). He has further specified that the NBIB, an entity within OPM,
shall “serve as the primary executive branch service provider for back-
ground investigations” for security clearances and related adjudications as
well as for suitability determinations. Id. § 3(t) (amending Exec. Order
No. 13467, § 2.6(a)(1)); see also id. § 1(b)(i) (amending Civil Service
Rule V,
5 C.F.R. § 5.2(a)). But the Director of National Intelligence re-
tains the ultimate authority “to designate an agency or agencies, to the
extent that it is not practicable to use the [NBIB], to conduct investiga-
tions of persons who are proposed for access to classified information or
for eligibility to hold a sensitive position.”
Id. § 3(s) (amending Exec.
Order No. 13467, § 2.5(e)(vi)). 3 At the time of your opinion request, the
3 The President originally designated the Office of Management and Budget as the
agency responsible for overseeing security clearance investigations and adjudications. See
3
Opinions of the Office of Legal Counsel in Volume 42
Director of National Intelligence had not indicated that it would be im-
practicable for the NBIB to conduct security clearance investigations for
DoD personnel, nor had the Director designated DoD to conduct those
investigations. See ODNI Views E-mail.
On December 12, 2017, Congress enacted the FY 2018 NDAA, which
included a new provision, section 925, concerning DoD personnel back-
ground and security investigations. Section 925(a) of that law provides in
relevant part:
(a) TRANSITION TO DISCHARGE BY DEFENSE SECURITY SERVICE
[(“DSS”)].—
(1) SECRETARIAL AUTHORITY.—The Secretary of Defense has
the authority to conduct security, suitability, and credentialing
background investigations for Department of Defense personnel.
In carrying out such authority, the Secretary may use such au-
thority, or may delegate such authority to another entity.
(2) PHASED TRANSITION.—As part of providing for the conduct
of background investigations initiated by the Department of De-
fense through the Defense Security Service by not later than the
deadline specified in subsection (b), the Secretary shall, in consul-
tation with the Director of the Office of Personnel Management,
provide for a phased transition from the conduct of such investiga-
tions by the National Background Investigations Bureau of the Of-
fice of Personnel Management to the conduct of such investiga-
tions by the Defense Security Service by that deadline.
Id. § 925(a), 131 Stat. at 1526.
Section 925(b), in turn, provides:
Exec. Order No. 13381, § 2, 3 C.F.R. 167, 167–68 (2005). In 2008, however, the Presi-
dent transferred most of those oversight functions to the Director of National Intelligence.
See Exec. Order No. 13467, § 2.3(c). Executive Order 13467 also specified that the
Director of OPM would oversee investigations and adjudications relating to determina-
tions of suitability and eligibility for logical and physical access. Id. § 2.3(b). As noted
above, the Director of OPM continues to serve in this role. And the President since 2005
has designated OPM as the lead entity responsible for conducting investigations for
security clearances and related determinations. See OPM Opinion Request at 6 & n.15;
see also Exec. Order No. 13467, § 3(g). OPM has also been granted responsibility for
performing suitability investigations for decades. See OPM Opinion Request at 3, 8.
4
Department of Defense’s Authority to Conduct Background Investigations
(b) COMMENCEMENT OF IMPLEMENTATION PLAN FOR ONGOING
DISCHARGE OF INVESTIGATIONS THROUGH DSS.—Not later than
October 1, 2020, the Secretary of Defense shall commence carrying
out the implementation plan developed pursuant to section 951(a)(1)
of the National Defense Authorization Act for Fiscal Year 2017[.]
Id. § 925(b), 131 Stat. at 1527. 4
Section 925(d) then states:
(d) TRANSFER OF CERTAIN FUNCTIONS IN OPM TO DSS.—
(1) IN GENERAL.—For purposes of meeting the requirements in
subsections (a) and (b), the Secretary of Defense shall provide for
the transfer of the functions described in paragraph (2), and any
associated personnel and resources, to the Department of Defense.
(2) FUNCTIONS.—The functions to be transferred pursuant to
paragraph (1) are the following:
(A) Any personnel security investigations functions trans-
ferred by the Secretary to the Director of the Office of Per-
sonnel Management pursuant to section 906 of the [FY 2004
NDAA].
(B) Any other functions of the Office of Personnel Manage-
ment in connection with background investigations initiated by
the Department of Defense that the Secretary and the Director
jointly consider appropriate.
Id. § 925(d), 131 Stat. at 1527.
4 In the National Defense Authorization Act for Fiscal Year 2017 (“FY 2017 NDAA”),
Pub. L. No. 114-328,
130 Stat. 1999 (2016), Congress had directed DoD to develop and
submit an implementation plan for DoD to conduct background investigations for speci-
fied DoD personnel.
Id. § 951(a)(1), 130 Stat. at 2371. The FY 2017 NDAA further
directed DoD and OPM jointly to develop a plan to transfer personnel and resources in
proportion to the workload that DoD would assume were this plan implemented. Id.
§ 951(a)(2), 130 Stat. at 2371. In August 2017, before section 925’s enactment, DoD
submitted to Congress a three-phase, three-year plan whereby DoD would ultimately
assume responsibility for conducting all background investigations for DoD-affiliated
personnel. See Department of Defense Response to the National Defense Authorization
Act for Fiscal Year 2017 Section 951: Implementation Plan for Potential Transfer of
Background Investigation Responsibility to the Department of Defense (“DoD Implemen-
tation Plan”).
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Opinions of the Office of Legal Counsel in Volume 42
II.
The enactment of section 925 of the FY 2018 NDAA resolves the ques-
tion that you have asked. No matter whether DoD previously had authori-
ty to conduct background investigations for DoD personnel, DoD has that
authority now. By its terms, section 925 authorizes DoD to “conduct
security, suitability, and credentialing background investigations for De-
partment of Defense personnel.” FY 2018 NDAA, § 925(a)(1), 131 Stat.
at 1526. Section 925 also states: “Any personnel security investigations
functions transferred by the Secretary [of Defense] to the Director of the
Office of Personnel Management pursuant to section 906 of ” the FY 2004
NDAA shall “be transferred” back to DoD. Id. § 925(d)(2), 131 Stat. at
1527. Indeed, section 925 not only authorizes, but requires DoD to con-
duct investigations for DoD personnel. DoD, in consultation with OPM,
“shall provide for a phased transition from the conduct of such investiga-
tions by the [NBIB] to the conduct of such investigations by [DSS].” Id.
§ 925(a)(2), 131 Stat. at 1526. And DoD must begin executing those
functions by 2020 by following the implementation plan that DoD devel-
oped pursuant to the FY 2017 NDAA. Id. § 925(b), 131 Stat. at 1527; see
supra note 4.
OPM, however, contends that section 925 “poses significant interpre-
tive difficulties” because it conflicts with, but does not expressly repeal,
various statutory provisions that OPM reads as authorizing only OPM to
conduct investigations. OPM Opinion Request at 9 n.22; see also OPM
Supplemental Views E-mail. In particular, OPM sees a conflict between
section 925 and IRTPA, under which the President, “[n]otwithstanding
any other provision of law,” must “select a single agency of the executive
branch to conduct, to the maximum extent practicable, security clearance
investigations of employees and contractor personnel” across the govern-
ment.
50 U.S.C. § 3341(c)(1). Because the President designated OPM as
this “single agency,” OPM suggests, section 925’s assignment to DoD of
responsibility for conducting security clearance investigations for DoD
employees cannot be reconciled with this provision. See OPM Opinion
Request at 9 n.22; see also ODNI Views E-mail (expressing a similar
concern).
We disagree. As its heading indicates, section 925(d) requires the
“transfer of certain functions in OPM to DSS,” namely those involving
6
Department of Defense’s Authority to Conduct Background Investigations
personnel security investigations. FY 2018 NDAA, § 925(d), 131 Stat.
at 1527 (capitalization modified). Section 925(a) similarly provides for
the phased transition from the NBIB (within OPM) to DSS of functions
that include the conduct of security clearance investigations. See id.
§ 925(a)(2), 131 Stat. at 1526. Although the statute does not expressly
modify the “single agency” directive of section 3341, we could not give
effect to section 925 without concluding that it creates an exception to
the prior rule. “[N]ormally the specific governs the general.” Long Island
Care at Home, Ltd. v. Coke,
551 U.S. 158, 170 (2007). That “canon is
perhaps most frequently applied to statutes in which a general permission
or prohibition is contradicted by a specific prohibition or permission,” so
that, “[t]o eliminate the contradiction, the specific provision is construed
as an exception to the general one.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank,
566 U.S. 639, 645 (2012); see also GAO Access to
Trade Secret Information,
12 Op. O.L.C. 181, 182–83 (1988) (“It is a
cardinal axiom of statutory construction that ‘where there is no clear
congressional intention otherwise, a specific statute will not be controlled
or nullified by a general one, regardless of priority of enactment.’”
(brackets omitted) (quoting Morton v. Mancari,
417 U.S. 535, 550–51
(1974))). That principle applies in determining in particular how a later-
enacted statute should be harmonized with an earlier one. See, e.g., United
States v. Estate of Romani,
523 U.S. 517, 530–31 (1998) (concluding that
the more specific provisions of the later-enacted Tax Lien Act should be
given effect over the federal priority statute, even though the Tax Lien
Act did not expressly amend the earlier statute). Here, section 925 is the
more specific provision: its sole concern is with allocating responsibility
for background investigations of DoD personnel. By contrast, section
3341 describes how responsibility for security clearance investigations
should be allocated government-wide.
Nor do we see anything in the statutory text that would displace this
presumption. While section 3341 applies “[n]otwithstanding any other
provision of law,” that phrase does not preclude a later Congress from
effectively enacting a specific exception to the general rule of single-
agency administration of security clearance investigations. See Dorsey v.
United States,
567 U.S. 260, 274 (2012) (“[S]tatutes enacted by one
Congress cannot bind a later Congress, which remains free to repeal the
earlier statute, to exempt the current statute from the earlier statute, to
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Opinions of the Office of Legal Counsel in Volume 42
modify the earlier statute, or to apply the earlier statute but as modified.
And Congress remains free to express any such intention either expressly
or by implication as it chooses.” (citations omitted)); see also Lockhart
v. United States,
546 U.S. 142, 147–48 (2005) (Scalia, J., concurring)
(similar). Thus, “the general language” of section 3341, “although broad
enough to include it, will not be held to apply to a matter specifically
dealt with” in section 925. RadLAX,
566 U.S. at 646 (internal quotation
marks omitted).
For the same reasons, we disagree with the suggestion that our reading
of section 925 would pose “significant interpretive difficulties” with
respect to other statutory provisions. See OPM Opinion Request at 9 n.22.
Section 925 can be read alongside
5 U.S.C. § 3301, which grants the
President broad authority to regulate the civil service, including the au-
thority to select individuals to conduct investigations to determine the
fitness of applicants. See
id. § 3301(3). We think that section 925’s more
specific provision controls, and that DoD has the authority to conduct
specified investigations for its own personnel. We also see no conflict
between section 925 and
5 U.S.C. § 11001, which cross-references
50
U.S.C. § 3341 and simply confers authority on the Director of National
Intelligence over certain security reinvestigations without independently
specifying which entity must perform those reinvestigations.
OPM also has identified a “marked contrast” between section 925 and
section 906 of the FY 2004 NDAA, which OPM interpreted as providing
for a transfer of investigative authority from DoD to OPM that, once
made, was irreversible except through subsequently enacted legislation.
See OPM Opinion Request at 9 & n.22. OPM subsequently clarified that
it does not see a direct conflict between these provisions. We do not
in any event think that section 906 creates any interpretive difficulties
with respect to section 925. Even if OPM’s reading of section 906 were
correct, section 925(d)(2) expressly reverses any transfer of investiga-
tive functions effected by the earlier provision. See FY 2018 NDAA,
§ 925(d)(2), 131 Stat. at 1527 (providing that “[a]ny personnel security
investigations functions transferred by the Secretary [of Defense] to the
Director of the Office of Personnel Management pursuant to section 906
of ” the FY 2004 NDAA must “be transferred” back to DoD). Therefore,
section 925 “specifically addresses language on the statute books that
8
Department of Defense’s Authority to Conduct Background Investigations
[Congress] wishes to change” and supersedes section 906. United States v.
Fausto,
484 U.S. 439, 453 (1988).
Finally, we disagree with OPM’s suggestion that this reading of section
925 might raise constitutional concerns. OPM indicates that if Congress
assigned to DoD the authority to conduct security clearance and related
background investigations for specific personnel, that could interfere with
the President’s constitutional authority to control the dissemination of
national security information, which OPM suggests includes control over
which agency conducts background investigations. See OPM Opinion
Request at 9 n.22. We do not believe, however, that the statutory realloca-
tion of the responsibility to conduct such background investigations
infringes upon the President’s constitutional role in protecting national
security information.
As the Supreme Court has recognized, the President has significant in-
dependent constitutional authority in this area. The President’s “authority
to classify and control access to information bearing on national security
and to determine whether an individual is sufficiently trustworthy to
occupy a position in the Executive Branch that will give that person
access to such information” derives from his constitutional authority as
“‘Commander in Chief of the Army and Navy of the United States.’”
Dep’t of the Navy v. Egan,
484 U.S. 518, 527 (1988) (quoting U.S. Const.
art. II, § 2, cl. 1). That authority thus “exists quite apart from any explicit
congressional grant.” Id. Indeed, “[t]he President’s roles as Commander in
Chief, head of the Executive Branch, and sole organ of the Nation in its
external relations require that he have ultimate and unimpeded authority
over the collection, retention and dissemination of intelligence and other
national security information in the Executive Branch.” Access to Classi-
fied Information,
20 Op. O.L.C. 402, 404 (1996) (quoting Brief for the
Appellees at 42, Am. Foreign Serv. Ass’n v. Garfinkel,
488 U.S. 923
(1988) (No. 87-2127)). Thus, while Congress is not entirely disabled from
participating in the system for protecting classified information, Congress
may not impair the President’s control over national security information.
See, e.g., Applicability of the Foreign Intelligence Surveillance Act’s
Notification Provision to Security Clearance Adjudications by the De-
partment of Justice Access Review Committee, 35 Op. O.L.C. __, at *8
(June 3, 2011). “Congress may not, for example, provide Executive
Branch employees with independent authority to countermand or evade
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Opinions of the Office of Legal Counsel in Volume 42
the President’s determinations as to when it is lawful and appropriate to
disclose classified information.”
Id.
But section 925 does not encroach upon presidential prerogatives with
respect to the protection of classified information. Section 925 does not
purport to dictate who should be granted access to national security
information. Nor does section 925 attempt to alter the substantive stand-
ards governing which individuals are entitled to be granted such access.
Rather, section 925 simply reallocates from OPM to DoD the authority
to conduct the background investigations generating the information
required to make such access determinations for a subset of federal per-
sonnel. Moreover, section 925 gives the Secretary of Defense the flexibil-
ity either to use this authority himself or to “delegate such authority to
another entity,” suggesting that the Executive Branch will still have
ultimate control over which entity conducts these investigations. FY 2018
NDAA, § 925(a)(1), 131 Stat. at 1526. And in any event, DoD would
remain subject to the framework for controlling how access determina-
tions will be made that the President established in Executive Orders.
When performing security clearance and related background investiga-
tions, DoD would, for example, remain subject to the oversight of the
Director of National Intelligence. See Exec. Order No. 13764, § 3(s)
(amending Exec. Order No. 13467, § 2.5(e)(i)–(vi), (vii)). 5 We conclude
that this statutory reallocation of investigative functions from one part of
the Executive Branch to another does not raise constitutional concerns.
III.
For the reasons set forth above, we conclude that, under section 925 of
the FY 2018 NDAA, DoD has the authority to conduct background inves-
tigations for its personnel that the NBIB currently performs, including
investigations to determine whether those personnel may be granted a
security clearance giving them access to classified information or whether
they are eligible to hold a sensitive position. We do not understand this
5Indeed, the implementation plan that DoD developed pursuant to the FY 2017
NDAA, which section 925(b) directs DoD to follow, specifically includes as a criterion of
the plan’s “end-state success” with respect to such investigations the achievement of
“[c]ompliance with [ODNI] oversight, reporting and assessment requirements.” DoD
Implementation Plan at 6–7.
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Department of Defense’s Authority to Conduct Background Investigations
specific grant of investigative authority to DoD otherwise to disrupt the
general oversight framework for background investigations established by
Executive Order 13764 and its predecessors.
SARAH M. HARRIS
Deputy Assistant Attorney General
Office of Legal Counsel
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