[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6929 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 6929

  To amend title 28 of the United States Code to require reporting on 
certain authoritative legal interpretations issued by the Department of 
Justice, including the Office of Legal Counsel, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 17, 2008

 Mr. Miller of North Carolina introduced the following bill; which was 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend title 28 of the United States Code to require reporting on 
certain authoritative legal interpretations issued by the Department of 
Justice, including the Office of Legal Counsel, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Office of Legal Counsel Reporting 
Act of 2008''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) To fulfill the constitutional duty of the executive 
        branch to act lawfully, the President must have access to a 
        reliable source of legal advice.
            (2) To fulfill its legislative and oversight duties under 
        the Constitution, Congress must have access to information 
        about how and whether the executive branch is implementing the 
        laws of the United States.
            (3) The Attorney General has delegated to the Office of 
        Legal Counsel in the Department of Justice the function of 
        providing legal advice to guide the actions of the President 
        and the executive branch.
            (4) By virtue of regulation and tradition, the legal 
        interpretations made by the Office are considered binding and 
        must be followed within the executive branch.

SEC. 3. REPORTING ON AUTHORITATIVE LEGAL INTERPRETATIONS BY THE 
              DEPARTMENT OF JUSTICE.

    (a) Inclusion of Authoritative Legal Interpretations in Existing 
Report Requirements.--Section 530D(a)(1) of title 28, United States 
Code, is amended--
            (1) by striking ``or'' at the end of subparagraph (B)(ii);
            (2) by striking the period at the end of subparagraph 
        (C)(ii)(VI) and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(D) except as provided in paragraph (3), issues 
                an authoritative legal interpretation (including an 
                interpretation under section 511, 512, or 513 by the 
                Attorney General or by an officer, employee, or agency 
                of the Department of Justice pursuant to a delegation 
                of authority under section 510) of any provision of any 
                Federal statute that--
                            ``(i) concludes that such provision is 
                        unconstitutional or would be unconstitutional 
                        in a particular application;
                            ``(ii) that relies for its conclusion, in 
                        whole or in the alternative, on a determination 
                        that an interpretation of the provision other 
                        than the authoritative legal interpretation of 
                        the provision would raise constitutional 
                        concerns under Article II of the Constitution 
                        of the United States or separation of powers 
                        principles;
                            ``(iii) that relies for its conclusion, in 
                        whole or in the alternative, on a legal 
                        presumption against applying the provision, 
                        whether during wartime or otherwise, to--
                                    ``(I) any department or agency 
                                established in the executive branch of 
                                the Federal Government, including but 
                                not limited to the Executive Office of 
                                the President and the military 
                                departments (as defined in section 
                                101(8) of title 10, U.S. Code); or
                                    ``(II) any officer, employee, or 
                                member of any department or agency 
                                established in the executive branch of 
                                the Federal Government (including but 
                                not limited to the President) and any 
                                member of the Armed Forces; or
                            ``(iv) that concludes the provision has 
                        been superseded or deprived of effect, in whole 
                        or in part, by a subsequently enacted statute 
                        where there is no express statutory language 
                        stating an intent to supersede the prior 
                        provision or deprive it of effect.'';''.
    (b) Submission of Authoritative Legal Interpretations and 
Classified Information.--Section 530D(a) of such title is amended by 
adding at the end the following:
            ``(3) Direction regarding interpretation.--The submission 
        of a report to Congress based on the issuance of an 
        authoritative legal interpretation described in paragraph 
        (1)(D) shall be discretionary on the part of the Attorney 
        General or an officer described in subsection (e) if--
                    ``(A) the President or other responsible officer of 
                a department or agency established in the executive 
                branch of the Federal Government or a responsible 
                member of the Armed Forces issues a directive stating 
                that no action shall be taken or withheld or no policy 
                shall be implemented or stayed on the basis of the 
                authoritative legal interpretation; and
                    ``(B) the directive described in subparagraph (A) 
                is in effect.
            ``(4) Classified information.--
                    ``(A) Submission of report containing classified 
                information regarding intelligence activities.--Except 
                as provided in subparagraph (B), if the Attorney 
                General submits a report relating to an instance 
                described in paragraph (1) that includes a classified 
                annex containing information relating to intelligence 
                activities, the report shall be considered to be 
                submitted to Congress for the purposes of paragraph (1) 
                if--
                            ``(i) the unclassified portion of the 
                        report is submitted to each officer specified 
                        in paragraph (2); and
                            ``(ii) the classified annex is submitted to 
                        the Select Committee on Intelligence and the 
                        Committee on the Judiciary of the Senate and 
                        the Permanent Select Committee on Intelligence 
                        and the Committee on the Judiciary of the House 
                        of Representatives.
                    ``(B) Submission of report containing certain 
                classified information about covert actions.--
                            ``(i) In general.--In a circumstance 
                        described in clause (ii), a report described in 
                        that clause shall be considered to be submitted 
                        to Congress for the purposes of paragraph (1) 
                        if--
                                    ``(I) the unclassified portion of 
                                the report is submitted to each officer 
                                specified in paragraph (2); and
                                    ``(II) the classified annex is 
                                submitted to--
                                            ``(aa) the chairman and 
                                        ranking minority member of the 
                                        Select Committee on 
                                        Intelligence of the Senate;
                                            ``(bb) the chairman and 
                                        ranking minority member of the 
                                        Committee on the Judiciary of 
                                        the Senate;
                                            ``(cc) the chairman and 
                                        ranking minority member of the 
                                        Permanent Select Committee on 
                                        Intelligence of the House of 
                                        Representatives;
                                            ``(dd) the chairman and 
                                        ranking minority member of the 
                                        Committee on the Judiciary of 
                                        the House of Representatives;
                                            ``(ee) the Speaker and the 
                                        minority leader of the House of 
                                        Representatives; and
                                            ``(ff) the majority leader 
                                        and minority leader of the 
                                        Senate.
                            ``(ii) Circumstances.--A circumstance 
                        described in this clause is a circumstance in 
                        which--
                                    ``(I) the Attorney General submits 
                                a report relating to an instance 
                                described in paragraph (1) that 
                                includes a classified annex containing 
                                information relating to a Presidential 
                                finding described in section 503(a) of 
                                the National Security Act of 1947 (50 
                                U.S.C. 413b(a)); and
                                    ``(II) the President determines 
                                that it is essential to limit access to 
                                the information described in subclause 
                                (I) to meet extraordinary circumstances 
                                affecting vital interests of the United 
                                States.''.
    (c) Deadlines for Submission of Report Concerning Certain 
Authoritative Legal Interpretations.--Section 530D(b) of such title is 
amended--
            (1) in paragraph (2) by striking ``and'' at the end;
            (2) in paragraph (3) by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(4) under subsection (a)(1)(D)--
                    ``(A) not later than 30 days after the date on 
                which the Attorney General, the Office of Legal 
                Counsel, or any other officer of the Department of 
                Justice issues the authoritative legal interpretation 
                of the Federal statutory provision; or
                    ``(B) if the President or other responsible officer 
                of a department or agency established in the executive 
                branch of the Federal Government or a responsible 
                member of the Armed Forces issues a directive described 
                in subsection (a)(3) and the directive is subsequently 
                rescinded, not later than 30 days after the date on 
                which the President, officer, or member rescinds that 
                directive.''.
    (d) Contents.--Section 530D(c) of such title is amended--
            (1) In paragraph (2)(A) by striking ``and'' at the end;
            (2) In paragraph (2)(B)(i) by striking ``and'' at the end;
            (3) in paragraph (2)(B) by inserting at the end the 
        following:
                            ``(iii) in the case of an authoritative 
                        legal interpretation described in subsection 
                        (a)(1)(D), if a copy of a legal opinion issued 
                        by the Office of Legal Counsel or another legal 
                        opinion setting forth the authoritative legal 
                        interpretation is provided; and'';
            (4) by adding at the end of such paragraph the following:
                    ``(C) any classified information shall be provided 
                in a classified annex, which shall be handled in 
                accordance with the security procedures established 
                under section 501(d) of the National Security Act of 
                1947 (50 U.S.C. 413(d));'';
            (5) in paragraph (3) by striking the period at the end and 
        inserting ``; and''; and
            (6) by adding at the end the following:
            ``(4) with respect to a report required under subparagraph 
        (A), (B), or (D) of subsection (a)(1), specify the specific 
        provision of the Federal statute, rule, regulation, program, 
        policy, or other law at issue, and the subparagraph of 
        subsection (a)(1) and the clause of such subparagraph that 
        describes the action of the Attorney General or other officer 
        of the Department of Justice.''.
    (e) Conforming Amendments.--Section 530D of such title is further 
amended--
            (1) in subsection (a)(2) by striking ``For the purposes'' 
        and all that follows through ``if the report'' and inserting 
        ``Except as provided in paragraph (4), a report shall be 
        considered to be submitted to Congress for the purposes of 
        paragraph (1) if the report'';
            (2) in subsection (c)--
                    (A) in paragraph (1) by striking ``or of each 
                approval described in subsection (a)(1)(C)'' and 
                inserting ``of each approval described in subsection 
                (a)(1)(C), or of the issuance of the authoritative 
                legal interpretation described in subsection 
                (a)(1)(D)'';
                    (B) in paragraph (2)--
                            (i) by striking ``reasons for the policy or 
                        determination'' and inserting ``reasons for the 
                        policy, determination, or authoritative legal 
                        interpretation'';
                            (ii) by striking ``or approving such 
                        settlement or compromise'' and inserting 
                        ``approving such settlement or compromise, or 
                        issuing such authoritative legal 
                        interpretation''; and
                            (iii) by striking ``except that'' and 
                        inserting ``provided that''; and
                    (C) in paragraph (2)(A)--
                            (i) by inserting ``except for information 
                        described in paragraphs (1) or (4),'' before 
                        ``such details may be omitted'';
                            (ii) by striking ``national-security- or 
                        classified information, of any''; and
                            (iii) by striking ``or other law'' and 
                        inserting ``or other statute''; and
            (3) in subsection (e)--
                    (A) by striking ``(but only with respect to the 
                promulgation of any unclassified Executive order or 
                similar memorandum or order),'' and inserting ``;'';
                    (B) by inserting ``, issues an interpretation 
                described in subsection (a)(1)(D),'' after ``policy 
                described in subsection (a)(1)(A)''; and
                    (C) by striking ``,'' after ``litigation'' and 
                inserting ``;''.

SEC. 4. WRITTEN AND SIGNED OPINIONS REQUIRED.

    (a) Written Opinions Required.--
            (1) In general.--Except as provided in paragraph (2), any 
        qualified legal opinion (as defined in section 5) issued to the 
        President, any person or entity in the executive branch, or any 
        member of the Armed Forces shall be issued in writing.
            (2) Exception when immediate action is required.--A 
        qualified legal opinion is not required to be issued in 
        writing, if--
                    (A) at the time that the opinion is issued--
                            (i) the Attorney General determines that 
                        the immediate action of the United States is 
                        required and that a qualified legal opinion 
                        cannot be prepared in writing as a result of 
                        such requirement; and
                            (ii) the Attorney General records, in 
                        writing, the fact that a qualified legal 
                        opinion was issued to the President, person or 
                        entity in the executive branch, or member of 
                        the Armed Forces, as applicable; and
                    (B) at the earliest possible date (but in no case 
                later than the end of the seven-day period beginning on 
                the date that the opinion is issued), the Attorney 
                General reissues the qualified legal opinion in 
                writing.
    (b) Signatures Required.--
            (1) In general.--If a qualified legal opinion contains a 
        statement of policy that authorizes or instructs any officer or 
        employee of the executive branch or a member of the Armed 
        Forces to disregard or not enforce a statute or an executive 
        order, an employee or officer of the executive branch or a 
        member of the Armed Forces may not require any other employee 
        or officer of the executive branch or a member of the Armed 
        Forces to follow the policy contained in such legal opinion, 
        unless such opinion is signed--
                    (A) by the President or the Attorney General; and
                    (B) by an officer or employee of the Office of 
                Legal Counsel in the Department of Justice.
            (2) Delegation prohibited.--In no case is a signature by an 
        individual other than the President or the Attorney General 
        sufficient to meet the requirements of paragraph (1)(A), even 
        if--
                    (A) such signature is made on behalf of the 
                President or Attorney General; or
                    (B) such signature results from a delegation of 
                responsibility by the President or the Attorney General 
                to another individual.

SEC. 5. GOVERNMENT ACCOUNTABILITY OFFICE REPORT.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Comptroller General of the United States 
shall submit to Congress a report containing an evaluation of 
performance of the Office of Legal Counsel in the Department of Justice 
during the 25-year period ending on the date of enactment of this Act.
    (b) Contents.--The report under subsection (a) shall contain, at a 
minimum, the following:
            (1) The total number of legal opinions (as defined in 
        section 5) issued by the Office of Legal Counsel.
            (2) The total number of legal opinions issued by the Office 
        that are disclosed, in written form, to the public, and the 
        amount of time between the date a opinion is first issued by 
        the office and the date the opinion is disclosed to the public.
            (3) The number of opinions issued by the Office that are 
        classified, in part or in full, and the basis for classifying 
        each opinion.
            (4) The number of opinions issued by the Office that are 
        not disclosed to the public because of deliberative-process 
        privilege, executive privilege, attorney-work-product 
        privilege, attorney-client-privilege, or another type of 
        privilege, and the nature of each such privilege.
            (5) An analysis of the role of the Office within the 
        Federal Government, including an assessment of how, if at all, 
        the role of the Office has changed over the course of the 
        period described in subsection (a).
            (6) An analysis of the interaction between the Office of 
        Legal Counsel, the Office of White House Counsel, and the 
        Office of the Counsel to the Vice President.
            (7) A description of any information which the Comptroller 
        General could not obtain which was necessary to complete this 
        report.
    (c) Form of Report.--The Comptroller General of the United States 
shall submit the report under subsection (a) in an unclassified form 
and may include a classified annex.

SEC. 6. DEFINITIONS.

    For the purposes of this Act, the following definitions apply:
            (1) Legal opinion.--The term ``legal opinion'' means an 
        opinion issued by the Office of Legal Counsel in the Department 
        of Justice--
                    (A) under sections 511 through 513 of title 28, 
                United States Code;
                    (B) through a delegation of authority under section 
                510 of such title;
                    (C) under section 0.25 of title 28, Code of Federal 
                Regulations (or any successor regulations); or
                    (D) under or through any combination of provisions 
                listed in subparagraphs (A) through (C).
            (2) Qualified legal opinion.--The term ``qualified legal 
        opinion'' means a legal opinion that contains a policy 
        described in subparagraph (A) of section 530D(a)(1) of title 
        28, United States Code, or an authoritative legal 
        interpretation described in subparagraph (D) of such section, 
        or both.
                                 <all>