Short title

This Act may be cited as the

Office of Legal Counsel Reporting Act of 2008

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.

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 ;.

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.

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.

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.