[Congressional Record: September 16, 2008 (Senate)]
[Page S8858-S8862]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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.
____________________
