[Congressional Record Volume 154, Number 147 (Tuesday, September 16, 2008)]
[Senate]
[Pages S8859-S8862]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself and Mrs. Feinstein):
  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; to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I am introducing, along with the 
senior Senator from California, Senator Feinstein, the OLC Reporting 
Act of 2008. In short, the bill would require the Attorney General to 
report to Congress when the Department of Justice issues a legal 
opinion concluding that the executive branch is not bound by a statute. 
Along with the Executive Order Integrity Act of 2008, which I 
introduced in July with the junior Senator from Rhode Island, Senator 
Whitehouse, this bill takes an important step toward curbing the 
executive branch's reliance on secret law.
  The principle behind this bill is straightforward. It is a basic 
tenet of democratic government that the people have a right to know the 
law. The very notion of ``secret law'' has been described in court 
opinions and law treatises as ``repugnant'' and ``an abomination.'' 
That's why the laws passed by Congress have historically been matters 
of public record.
  But the law that applies in this country includes more than just 
statutes. It includes regulations, the controlling legal 
interpretations of the executive branch and the courts, and certain 
Presidential directives. As we learned at a hearing of the Judiciary 
Committee's Constitution Subcommittee that I chaired in April, this 
body of executive and judicial law is increasingly being kept secret 
from the public, and too often from Congress as well. Perhaps the most 
troubling recent example of secret law is the elaborate legal regime 
constructed by DOJ's Office of Legal Counsel to justify controversial 
administration policies that operate outside the framework of statutory 
law.
  An opinion issued by OLC is not just a piece of legal advice, such as 
the advice individuals or corporations might solicit from their 
lawyers. An OLC opinion binds the entire executive branch, just like 
the ruling of a court. If a court were to reach a different 
interpretation than OLC, the court's interpretation would prevail--but 
many OLC opinions address matters that courts never have the chance to 
decide. On those matters, OLC essentially steps into the role of the 
courts as the final interpreter of the law. In the words of Jack 
Goldsmith, former head of OLC under President Bush: ``These executive 
branch precedents are `law' for the executive branch.''
  OLC opinions are ``law'' in another sense as well. Attorney General 
Mukasey has stated that DOJ will not prosecute a government actor for 
criminal conduct if he or she relied on an OLC opinion. Thus, even if a 
court overturns OLC's interpretation, the opinion may grant retroactive 
immunity for past violations of the law--effectively amending the law 
that existed at the time of the criminal act.
  The Bush administration has relied heavily on secret OLC opinions in 
a broad range of matters involving core constitutional rights and civil 
liberties. The administration's policies on interrogation of detainees 
were justified by OLC opinions that were withheld from Congress and the 
public for several years. The President's warrantless wiretapping 
program was justified by OLC opinions that, to this day, have been seen 
only by a select few Members of Congress. And, when it was finally made 
public this year, the March 2003 memorandum on torture written by John 
Yoo was filled with references to other OLC memos that Congress and the 
public have never seen--on subjects ranging from the Government's 
ability to detain U.S. citizens without congressional authorization to 
the Government's ability to operate outside the Fourth Amendment in 
domestic military operations.
  The few opinions whose content has been made public share a notable 
characteristic: the conclusion that various laws enacted by Congress do 
not apply to the conduct of the executive branch. The 2003 Yoo torture 
memo took the alarming position that the executive branch was not bound 
by the criminal statute prohibiting torture when interrogating 
detainees. Likewise, according to congressional testimony of former OLC 
head Steve Bradbury, the President's warrantless wiretapping program 
was supported by OLC opinions claiming that the President's wiretapping 
authority was not limited by the constraints of the Foreign 
Intelligence Surveillance Act. The titles of other OLC opinions 
referenced in the Yoo memo strongly suggest that other statutory 
constraints have been disposed of in a similar manner.
  The secrecy of these opinions cannot be justified or explained away 
by a wholesale claim of privilege. To be sure, there are sound 
arguments for shielding from public disclosure deliberations among OLC 
lawyers, as well as final OLC opinions that are not adopted as the 
basis for an executive branch policy. But once a final OLC opinion is 
issued and adopted by an executive

[[Page S8860]]

branch agency or official, that opinion is no longer mere legal advice 
or a deliberative document--it is effectively the law. Indeed, in his 
testimony before the Constitution Subcommittee in April, the Deputy 
Assistant Attorney General for OLC acknowledged that the 
confidentiality interest in OLC opinions is ``completely different'' 
for opinions that have been implemented as policy, and that such 
opinions should be made public ``as fast as possible.'' The Supreme 
Court expressed the same sentiment in legal terms, holding that 
``opinions and interpretations which embody [an] agency's effective law 
and policy'' are not privileged, precisely because agencies otherwise 
would be operating under ``secret law.''

  There is an even stronger interest in disclosure when an OLC opinion 
concludes that the executive branch is not bound by a Federal statute. 
In such cases, the executive branch is no longer operating according to 
the rules that are on the books, and there is truly a separate--and 
sometimes conflicting--regime of secret law. Moreover, Congress has an 
obvious institutional interest in knowing when DOJ opines that the 
executive branch is not bound by a statute, and the reasons for that 
opinion. If DOJ concludes that a statute is unconstitutional, Congress 
may wish to challenge this position, or it may decide to simply rewrite 
the law to avoid the perceived constitutional problem. Similarly, if 
DOJ concludes that Congress did not intend for a statute to apply to 
the executive branch, then Congress should have the opportunity to 
assess this conclusion and revise the law if necessary to make its 
intent clear. None of this can happen when Congress is denied access to 
the opinion.
  Recognizing Congress's strong interest in knowing when DOJ takes 
issue with its enactments, current law requires the Attorney General to 
report to Congress when DOJ decides that it will not enforce or defend 
a statute because the statute is unconstitutional. This reporting 
provision, however, does not reach situations in which OLC stops short 
of declaring a statute unconstitutional, and instead construes the 
statute not to apply to the executive branch in order to avoid a 
finding of unconstitutionality. At the hearing I chaired on secret law, 
Dawn Johnsen, who served as the head of OLC for 2 years under President 
Clinton, testified that the law should be amended to require reporting 
to Congress in these situations as well. Bradford Berenson, former 
counsel to President Bush from 2001-2003, agreed with this modest 
proposal.
  The bill that Senator Feinstein and I are introducing today grew out 
of this bipartisan agreement. It was drafted with the substantial 
assistance and input of Johnsen, Berenson, and an impressive group of 
some of the finest attorneys to serve in OLC in past years, many of 
whom are now constitutional scholars. The aim was to craft a targeted 
bill--one that would allow Congress to be sufficiently informed when 
OLC purports to release the executive branch from the strictures of a 
statute, without encroaching on the institutional interests, 
prerogatives, and privileges of OLC. We took great pains to ensure that 
an appropriate balance of power was maintained between the legislative 
and executive branches. The result is an approach that is narrowly 
tailored and eminently reasonable.
  The bill adds a new disclosure requirement to 28 U.S.C. 530D, the 
statutory provision that requires the Attorney General to report to 
Congress if DOJ decides not to enforce or defend a statute on the 
ground that it is unconstitutional. Under the bill, the Attorney 
General must also report to Congress under four circumstances. These 
circumstances represent the means by which OLC is most likely to exempt 
the executive branch from the reach of a statute, in those areas where 
Congress has the greatest interest in knowing about it.
  First, a report is required if DOJ issues an opinion that concludes 
that a Federal statute is unconstitutional. Current law requires 
reporting only when DOJ decides not to defend or enforce a statute, 
which does not necessarily reach cases in which an agency policy 
conflicts with a statute but DOJ is not presented with the opportunity 
for an enforcement action.
  Second, a report is required if DOJ relies on the so-called 
``doctrine of constitutional avoidance'' and cites Article II or the 
separation of powers--in other words, if DOJ determines that applying a 
statute to executive branch officials would raise constitutional 
problems. Regardless of the validity of this determination, the effect 
is to exempt executive branch officials from the statute's reach--a 
result that Congress should know about.
  Third, a report is required if DOJ relies on a ``legal presumption'' 
against applying a statute to the executive branch. For example, the 
Yoo torture memo relied on the legal presumption that laws of general 
applicability, such as those prohibiting torture, do not apply to the 
conduct of the military during wartime. The criterion of a ``legal 
presumption'' serves to keep the reporting requirement narrowly 
tailored: it captures situations in which the executive branch is 
exempted from a statute categorically, without requiring reporting in 
more run-of-the-mill cases where a particular executive action simply 
does not fall within the statute.
  Fourth, a report is required if DOJ determines that a statute has 
been superseded by a later enactment, when the later enactment does 
expressly say so. This provision would address situations like OLC's 
conclusion that the Authorization for Use of Military Force superseded 
the constraints of the Foreign Intelligence Surveillance Act. In such 
cases, reporting to Congress gives Congress the opportunity to clarify 
its intent.
  These reporting requirements are accompanied by several provisions to 
ensure scrupulous respect for executive privileges and prerogatives. 
The Attorney General would not be required to disclose the OLC opinion 
itself, as long as the report to Congress includes the information 
already required under 28 U.S.C. 530D whenever DOJ decides not to 
enforce or defend a statute--namely, a complete and detailed statement 
of the relevant issues and background. Furthermore, the bill leaves 
intact section 530D's provision allowing the Attorney General to 
exclude privileged information from the statement; the only information 
that could not be excluded is the date of the opinion, the statute 
at issue, and which of the four reporting categories the opinion falls 
within. No report would be required if officials expressly declined to 
adopt or act on the opinion, thus protecting from disclosure opinions 
that are truly advisory in nature.

  The bill also protects the security of classified information. 
Information that could harm the national security if disclosed publicly 
could be provided to Congress in a classified annex. Classified 
information involving intelligence activities would be reported only to 
the Intelligence and Judiciary Committees--or, under appropriate 
circumstances, a more narrow ``Gang of Twelve,'' to parallel the more 
limited disclosure provisions of the National Security Act.
  The bill's targeted focus and careful preservation of executive 
prerogatives has earned it the support of former officials from both 
the Clinton and Bush Administrations. Former head of OLC, Dawn Johnsen, 
and former counsel to President Bush, Bradford Berenson, have written a 
joint letter endorsing the bill. In their words: ``[W]e believe [the 
bill] strikes a sensible and constitutionally sound accommodation 
between the executive branch's need to have candid legal advice, to 
protect national security information, and to avoid being overburdened 
by overly intrusive reporting requirements and the legislative branch's 
need to know the manner in which its laws are interpreted.'' They write 
that enacting this bill ``would have the effect of enhancing democratic 
accountability and the rule of law.'' I ask unanimous consent to place 
this letter in the record along with my statement.
  Of course, the bill does not represent a perfect or complete solution 
to the problem of secret law. For example, it would not reach the now-
infamous OLC conclusion that the infliction of pain does not constitute 
``torture'' unless it approaches the level associated with ``death, 
organ failure, or serious impairment of body functions''--an 
interpretation that effectively exempted the executive branch from the 
full scope of the anti-torture statute. Moreover, under the provisions 
of the bill allowing the Attorney General to withhold privileged 
information, Congress may

[[Page S8861]]

well be forced to operate under a significant informational handicap. 
Nonetheless, the bill represents an important and necessary step toward 
curbing secret law and restoring the proper balance of power between 
the executive and legislative branches.
  When OLC concludes that a statute passed by Congress does not bind 
the executive branch, Congress has a right to know that the executive 
branch is not operating under that statute, and to be apprised of the 
law under which the executive branch is operating. The bill I am 
introducing with Senator Feinstein codifies that right. I urge all of 
my colleagues in the Senate to support this common-sense measure.
  Mr. President, I ask unanimous consent that the text of the bill and 
a letter of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 3501

       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

[[Page S8862]]

     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),''.
                                  ____

                                               September 15, 2008.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington DC.
     Hon. Arlen Specter,
     U.S. Senate,
     Washington DC.
       Dear Chairman Leahy and Senator Specter: We write to convey 
     our strong support for ``The OLC Reporting Act of 2008,'' to 
     be introduced by Senator Feingold and Senator Feinstein. We 
     respectfully urge the committee to give the bill prompt and 
     serious consideration, because we believe that the addition 
     of the reporting requirement it would create would have the 
     effect of enhancing democratic accountability and the rule of 
     law.
       We both had the privilege to testify before Senators 
     Feingold and Brownback, and the Subcommittee on the 
     Constitution of the Senate Committee on the Judiciary, on 
     April 30, 2008 in a hearing that examined ``Secret Law and 
     the Threat to Democratic and Accountable Government.'' We 
     served in different administrations, Brad Berenson as 
     Associate Counsel to President George W. Bush and Dawn 
     Johnsen as Acting Assistant Attorney General for the Office 
     of Legal Counsel (OLC) under President Clinton. During our 
     testimony, we found ourselves in substantial agreement about 
     the desirability for new legislation that would require 
     reporting to Congress regarding a limited category of OLC 
     legal opinions.
       As a general matter, we share a deep concern about 
     safeguarding the legitimate need for confidentiality in the 
     legal advice OLC provides to the President and others in the 
     executive branch, by power delegated by the Attorney General. 
     For example, in some instances national security information 
     must be protected. In other instances, such as where OLC 
     advises that a proposed action would be illegal, and that 
     advice is accepted, the prospect of immediate and routine 
     disclosure could deter executive branch officials from 
     seeking advice in the first place.
       We agree, however, that Congress has a legitimate 
     legislative interest in receiving broader notice than current 
     law provides with respect to certain categories of OLC 
     opinions, which can generally be described as those in which 
     OLC relies on constitutionally based interpretive doctrines 
     to interpret a law in a way that might come as a surprise to 
     Congress. These include the doctrine of ``constitutional 
     avoidance,'' as well as implied repeals or modifications and 
     certain presumptions against applying statutes to the 
     executive branch officials. In our view, OLC opinions that 
     place substantial reliance on such doctrines present the 
     greatest potential for overreaching by the executive branch 
     and thus the greatest need for notification to Congress. If 
     Congress does not know about these interpretations, Congress 
     is unable to consider the possibility of legislative change 
     or clarification.
       For this reason, after the hearing we worked closely with 
     Senate staff as well as with a group of other former 
     executive branch officials and Office of Legal Counsel 
     lawyers to help draft ``The OLC Reporting Act of 2008.'' The 
     resulting bill text was the product of careful consideration 
     and negotiation. The bill mandates reporting in a carefully 
     defined category of cases and includes appropriate provisions 
     to protect national security and privileged information. All 
     in all, we believe it strikes a sensible and constitutionally 
     sound balance between the executive branch's need to have 
     access to candid legal advice, to protect national security 
     information, and to avoid being overburdened by unduly 
     intrusive reporting requirements and the legislative branch's 
     need to know the manner in which its laws are interpreted. We 
     both endorse the bill as introduced and urge its prompt 
     enactment.
           Sincerely,
     Brad Berenson,
       Sidley Austin.
     Dawn Johnsen,
       Indiana University School of Law.

                          ____________________