[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3501 Reported in Senate (RS)]






                                                      Calendar No. 1083
110th CONGRESS
  2d Session
                                S. 3501

  To ensure that Congress is notified when the Department of Justice 
    determines that the Executive Branch is not bound by a statute.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 16, 2008

Mr. Feingold (for himself and Mrs. Feinstein) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

           September 25 (legislative day, September 17), 2008

                Reported by Mr. Leahy, without amendment

_______________________________________________________________________

                                 A BILL


 
  To ensure that Congress is notified when the Department of Justice 
    determines that the Executive Branch is not bound by a statute.

    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 ``OLC Reporting Act of 2008''.

SEC. 2. REPORTING.

    Section 530D of title 28, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (B), by striking ``or'' 
                        at the end;
                            (ii) by redesignating subparagraph (C) as 
                        subparagraph (D); and
                            (iii) by inserting after subparagraph (B) 
                        the following:
                    ``(C) 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--
                            ``(i) that concludes that the provision is 
                        unconstitutional or would be unconstitutional 
                        in a particular application;
                            ``(ii) that relies for the conclusion of 
                        the authoritative legal interpretation, in 
                        whole or in the alternative, on a determination 
                        that an interpretation of the provision other 
                        than the authoritative legal interpretation 
                        would raise constitutional concerns under 
                        article II of the Constitution of the United 
                        States or separation of powers principles;
                            ``(iii) that relies for the conclusion of 
                        the authoritative legal interpretation, in 
                        whole or in the alternative, on a legal 
                        presumption against applying the provision, 
                        whether during a war or otherwise, to--
                                    ``(I) any department or agency 
                                established in the executive branch of 
                                the Federal Government, including the 
                                Executive Office of the President and 
                                the military departments (as defined in 
                                section 101(8) of title 10); or
                                    ``(II) any officer, employee, or 
                                member of any department or agency 
                                established in the executive branch of 
                                the Federal Government, including 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; or'';
                    (B) in paragraph (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 the Congress for the purposes of paragraph 
                (1) if the report''; and
                    (C) 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)(C) 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, including the 
                Executive Office of the President and the military 
                departments (as defined in section 101(8) of title 10), 
                expressly directs that no action be taken or withheld 
                or policy 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 the 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 the 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 
                                        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.'';
            (2) in subsection (b)--
                    (A) in paragraph (2), by striking ``and'' at the 
                end;
                    (B) by redesignating paragraph (3) as paragraph 
                (4);
                    (C) by inserting after paragraph (2) the following:
            ``(3) under subsection (a)(1)(C)--
                    ``(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, including the 
                Executive Office of the President and the military 
                departments (as defined in section 101(8) of title 10), 
                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 or other 
                responsible officer rescinds that directive; and''; and
                    (D) in paragraph (4), as so redesignated, by 
                striking ``subsection (a)(1)(C)'' and inserting 
                ``subsection (a)(1)(D)'';
            (3) in subsection (c)--
                    (A) in paragraph (1), by striking ``or of each 
                approval described in subsection (a)(1)(C)'' and 
                inserting ``of the issuance of the authoritative legal 
                interpretation described in subsection (a)(1)(C), or of 
                each approval described in subsection (a)(1)(D)'';
                    (B) by redesignating paragraphs (2) and (3) as 
                paragraphs (3) and (4), respectively;
                    (C) by inserting after paragraph (1) the following:
            ``(2) with respect to a report required under subparagraph 
        (A), (B), or (C) of subsection (a)(1), specify the Federal 
        statute, rule, regulation, program, policy, or other law at 
        issue, and the paragraph and clause of subsection (a)(1) that 
        describes the action of the Attorney General or other officer 
        of the Department of Justice;'';
                    (D) in paragraph (3), as so redesignated--
                            (i) by striking ``reasons for the policy or 
                        determination'' and inserting ``reasons for the 
                        policy, authoritative legal interpretation, or 
                        determination'';
                            (ii) by inserting ``issuing such 
                        authoritative legal interpretation,'' after 
                        ``or implementing such policy,'';
                            (iii) by striking ``except that'' and 
                        inserting ``provided that'';
                            (iv) by redesignating subparagraphs (A) and 
                        (B) as subparagraphs (B) and (C), respectively;
                            (v) by inserting before subparagraph (B), 
                        as so redesignated, the following:
                    ``(A) 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));'';
                            (vi) in subparagraph (B), as so 
                        redesignated--
                                    (I) by inserting ``except for 
                                information described in paragraph (1) 
                                or (2),'' 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'';
                            (vii) in subparagraph (C), as so 
                        redesignated--
                                    (I) by redesignating clauses (i) 
                                and (ii) as clauses (ii) and (iii), 
                                respectively;
                                    (II) by inserting before clause 
                                (ii), as so redesignated, the 
                                following:
                            ``(i) in the case of an authoritative legal 
                        interpretation described in subsection 
                        (a)(1)(C), if a copy of the Office of Legal 
                        Counsel or other legal opinion setting forth 
                        the authoritative legal interpretation is 
                        provided;'';
                                    (III) in clause (ii), as so 
                                redesignated, by striking ``subsection 
                                (a)(1)(C)(i)'' and inserting 
                                ``subsection (a)(1)(D)(i)''; and
                                    (IV) in clause (iii), as so 
                                redesignated, by striking ``subsection 
                                (a)(1)(C)(ii)'' and inserting 
                                ``subsection (a)(1)(D)(ii)''; and
                    (E) in paragraph (4), as so redesignated, by 
                striking ``subsection (a)(1)(C)(i)'' and inserting 
                ``subsection (a)(1)(D)(i)''; and
            (4) in subsection (e)--
                    (A) by striking ``(but only with respect to the 
                promulgation of any unclassified Executive order or 
                similar memorandum or order)''; and
                    (B) by inserting ``issues an authoritative 
                interpretation described in subsection (a)(1)(C),'' 
                after ``policy described in subsection (a)(1)(A),''.
                                                      Calendar No. 1083

110th CONGRESS

  2d Session

                                S. 3501

_______________________________________________________________________

                                 A BILL

  To ensure that Congress is notified when the Department of Justice 
    determines that the Executive Branch is not bound by a statute.

_______________________________________________________________________

           September 25 (legislative day, September 17), 2008

                       Reported without amendment