Calendar No. 1083
110th Congress Report
SENATE
2d Session 110-528
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OLC REPORTING ACT OF 2008
_______
December 11 (legislative day, December 10), 2008.--Ordered to be
printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany S. 3501]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 3501), to ensure that Congress is notified when the
Department of Justice determines that the Executive Branch is
not bound by a statute, having considered the same, reports
favorably thereon, without amendment, and recommends that the
bill do pass.
CONTENTS
Page
I. Background and Purpose of the OLC Reporting Act of 2008..........1
II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................6
IV. Congressional Budget Office Cost Estimate........................7
V. Regulatory Impact Evaluation.....................................8
VI. Conclusion.......................................................8
VII. Changes to Existing Law Made by the Bill, as Reported............8
I. Background and Purpose of the OLC Reporting Act of 2008
The purpose of the OLC Reporting Act of 2008 (``the Act'')
is to provide a targeted response to a particularly problematic
manifestation of ``secret law''--secret legal opinions issued
by the Department of Justice (DOJ) that effectively exempt the
executive branch from compliance with federal statutes. The Act
requires the Attorney General to report to Congress when DOJ
issues such an opinion, thus allowing Congress to assess the
Department's interpretation and respond, where necessary,
through legislation or oversight.
It is a basic tenet of democracy that the people have a
right to know the law. The notion of ``secret law'' has been
described in court opinions and law treatises as ``repugnant''
and ``an abomination.''\1\ In keeping with this principle, the
laws passed by Congress and the case law developed by the
courts have historically been matters of public record. When it
became apparent in the middle of the 20th century that federal
agencies were increasingly creating a body of non-public
administrative law, Congress passed several statutes requiring
this law to be made public--including the Federal Register Act,
the Administrative Procedure Act, and the Freedom of
Information Act--for the express purpose of preventing a regime
of ``secret law.''
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\1\Torres v. Immigration and Naturalization Serv., 144 F.3d 472,
474 (7th Cir. 1998) (``The idea of secret laws is repugnant.'');
Kenneth Davis, Administrative Law Treatise 137 (1970) (``Secret law is
an abomination.'').
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The law that applies in this country, however, includes
more than just statutes, case law, and agency regulations. It
includes certain controlling legal interpretations issued by
the executive branch--in particular, legal opinions issued by
DOJ's Office of Legal Counsel (OLC).
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 concern
matters that courts never have the chance to decide. On those
matters, OLC essentially is 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.''\2\
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\2\Jack Goldsmith, The Terror Presidency 36 (2007).
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Opinions by OLC 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.\3\ Thus, even if a court overturns OLC's
interpretation, the opinion may grant retroactive immunity for
past violations of the law.
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\3\Oversight of the Department of Justice: Hearing Before the S.
Comm. on the Judiciary, 110th Cong. (July 9, 2008) (forthcoming)
(testimony of Michael B. Mukasey, Attorney General of the United
States: ``Any CIA official who acted in good faith reliance on an
opinion by the Department of Justice that his or her conduct was lawful
cannot and should not be prosecuted . . . .'').
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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: They conclude that various laws enacted
by Congress do not apply to the conduct of the executive
branch. The March 2003 Yoo torture memo took the alarming
position that the executive branch was not bound by the
criminal statute prohibiting torture when interrogating
detainees. Similarly, former acting OLC head Steve Bradbury has
acknowledged that 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 March 2003 Yoo
torture memo strongly suggest that other statutory constraints
have been disregarded 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, and some OLC opinions. But
once a final OLC opinion is issued and adopted as the basis for
an executive branch policy, that opinion is no longer mere
legal advice or a deliberative document--it is effectively the
law. John P. Elwood, the Deputy Assistant Attorney General for
OLC, acknowledged in testimony before the Constitution
Subcommittee 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 case law reflects this distinction between legal advice
or deliberations, on the one hand, and final opinions that
support agency policy or action, on the other. The Supreme
Court has held 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.''\4\ The Second Circuit has applied this analysis
to the particular context of OLC opinions, and has held that
the attorney-client privilege does not apply to OLC opinions if
those opinions have been adopted as, or incorporated into, an
agency's policy.\5\
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\4\National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S.
132 (1975).
\5\See National Council of La Raza v. Department of Justice, 411
F.3d 350 (2d Cir. 2005) (the three-judge panel was unanimous and the
Department of Justice did not seek Supreme Court review).
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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.
Such opinions create a separate--and sometimes conflicting--
regime of secret law. Moreover, Congress has an institutional
and constitutional 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 that position,
or it may decide to 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
that 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 it considers the
statute 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 an April 30, 2008,
Constitution Subcommittee hearing entitled ``Secret Law and the
Threat to Democratic and Accountable Government,'' Dawn E.
Johnsen, who served as Acting Assistant Attorney General for
OLC for two years under President Clinton, and Bradford A.
Berenson, who served as counsel to President Bush from 2001
through 2003, agreed that the law should be amended to require
reporting to Congress in these situations as well.
The OLC Reporting Act of 2008 grew out of this bipartisan
agreement. It was drafted with the substantial assistance and
input of Johnsen, Berenson, and a group of former OLC officials
and attorneys, many of whom are constitutional scholars.\6\ The
aim was to craft targeted legislation that would allow Congress
to be sufficiently informed when OLC determines that a
particular statute does not bind the executive branch, without
encroaching on the institutional interests and prerogatives of
OLC or the executive branch more generally. The result is
legislation that takes a measured and balanced approach to the
problem.
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\6\Johnsen and Berenson's joint letter in support of the bill
appears at the end of this report.
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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:
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 and
the policy has not been challenged in court.
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, a report is
required if DOJ determines that applying a statute to executive
branch officials would raise constitutional problems but that
it will be construed not to apply. 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.
Third, a report is required if DOJ relies on a legal
presumption against applying a statute to the executive branch.
For example, the March 2003 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,
as used in the bill, 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 not expressly say it is intended to
supersede an earlier statute. 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 may 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. Sec. 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 within which of the four
reporting categories the opinion falls. 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 to the House and Senate
Intelligence and Judiciary Committees--or, where covert actions
are at issue, a more narrow group of senators, to parallel the
more limited disclosure provisions of the National Security Act
for information about covert actions.
Needless to say, 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 well be forced to operate under a
significant informational handicap. Many believe that Congress
should have unimpeded access to all significant OLC opinions
construing federal statutes, and that any claim of executive
privilege is counterbalanced by Congress's need to have this
information in order to fulfill its own constitutional
responsibilities. The goal of this bill, however, is not to
address the need for disclosure of OLC opinions generally, but
to tackle a particularly problematic category of withholdings.
The narrow reporting requirements of this bill reflect that
goal, but should not be construed as an indication that further
reporting is unnecessary or unwarranted.
Indeed, as Senator Feingold said at the Constitution
Subcommittee hearing he chaired:
When it comes to the law that governs the executive
branch's actions, Congress, the courts, and the public
have the right and the need to know what law is in
effect. An Executive that operates pursuant to secret
law makes a mockery of the democratic principles and
freedoms on which this country was based.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The OLC Reporting Act of 2008, S. 3501, was introduced on
September 16, 2008, by Senator Feingold and Senator Feinstein.
Representative Brad Miller introduced an identical measure as
part of a larger bill, H.R. 6929, on September 17, 2008, in the
House of Representatives.
B. COMMITTEE CONSIDERATION
On April 30, 2008, Senator Feingold chaired a hearing of
the Constitution Subcommittee on ``Secret Law and the Threat to
Democratic and Accountable Government.'' Testifying at the
hearing were John P. Elwood, Deputy Assistant Attorney General
for the Office of Legal Counsel; Dawn E. Johnsen, Professor at
Indiana University School of Law--Bloomington and former Acting
Assistant Attorney General for the Office of Legal Counsel;
Bradford A. Berenson, partner at Sidley Austin LLP and former
counsel to President George W. Bush; J. William Leonard, former
Director of the Information Security Oversight Office; David
Rivkin, partner at Baker Hostetler; Heidi Kitrosser, Associate
Professor of Law at the University of Minnesota Law School; and
Steven Aftergood, Director of the Project on Government Secrecy
at the Federation of American Scientists. In addition to the
prepared statements of the witnesses, the following materials
were submitted for the record: May 7, 2008, letter to Senators
Feingold and Brownback from Anne L. Weismann, Chief Counsel,
Citizens for Responsibility and Ethics in Washington; May 7,
2008, letter to Senators Feingold and Brownback from James P.
Harrison, Director, The Identity Project.
The bill was listed on the Judiciary Committee's agenda and
considered by the Committee on September 25, 2008. Senator
Feingold provided an overview of the bill and Senator Brownback
spoke in support of it. The Committee then voted to report S.
3501 favorably, without amendment, by unanimous consent.
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``OLC Reporting Act of 2008''.
Section 2. Reporting
This section amends section 530D of title 28, United States
Code, as follows:
Subsection (a)(1) is amended to include a new subparagraph
(C) that requires the Attorney General to submit a report to
Congress whenever the Department of Justice issues an
authoritative legal interpretation of any provision of a
federal statute that (1) concludes that the provision is
unconstitutional or would be unconstitutional in a particular
application; (2) relies in whole or in part on a determination
that another interpretation of the provision would raise
constitutional concerns under Article II of the Constitution or
separation of powers principles; (3) relies in whole or in part
on a legal presumption against applying the provision, whether
during wartime or otherwise, to the executive branch or any of
its officers or employees (including the President and members
of the military); or (4) concludes that the provision has been
impliedly superseded or wholly or partially deprived of effect
by a later enactment. In accordance with a new paragraph (3) of
subsection (b), the report must be submitted not later than 30
days after the authoritative legal interpretation is issued. In
accordance with a new paragraph (3) of subsection (a), the
report would be optional, rather than mandatory, if the
President or other responsible official has expressly directed
that no action be taken or withheld, or no policy implemented
or stayed, on the basis of the interpretation.
The provision of subsection (c)(2)(A) regarding the
reporting of national security and classified information is
amended to require that any classified information shall be
provided in a classified annex, which shall be handled in
accordance with the security procedures established under the
National Security Act. In addition, a new paragraph (4) in
subsection (a) specifies that, with respect to classified
information relating to intelligence activities, the reporting
requirement may be satisfied by providing the information to
the Senate and House Judiciary and Intelligence Committees; and
that, with respect to certain classified information relating
to covert actions, the reporting requirement may be satisfied
by providing the information to the chairmen and ranking
members of the Senate and House Judiciary Committees, the
chairmen and ranking members of the Senate and House Judiciary
and Intelligence Committees, the Speaker and minority leader of
the House of Representatives, and the majority and minority
leaders of the Senate.
Subsection (c) is amended to include a new paragraph (2)
requiring any report made pursuant to subsection (a)(1)(A),
(B), or (C) to specify the federal law at issue and the
paragraph and the clause of subsection (a)(1) that describes
the action being reported. This information, along with the
date of the action being reported, must be included in the
report and may not be withheld on privilege grounds, in
accordance with subsection (c)(3)(B).
Subsection (e) is amended to remove the qualification that
section 530D's reporting requirements apply to the President
only with respect to the promulgation of unclassified executive
orders or similar memoranda or orders. Instead, any report that
relates to classified Presidential orders or memoranda is
subject to the amended requirements for the handling of
classified information.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
3501, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
October 1, 2008.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3501, the OLC
Reporting Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 3501--OLC Reporting Act of 2008
S. 3501 would require the Office of Legal Counsel (OLC)
within the Department of Justice, under certain circumstances,
to submit a report to the Congress when it issues an
authoritative legal interpretation that:
Determines that a provision of federal law
is unconstitutional or raises constitutional concerns
under Article II of the Constitution or separation of
powers principles;
Relies on a legal presumption against
applying a provision of federal law; or
Concludes that a provision of federal law
has implicitly been deprived of effect by a
subsequently enacted statute.
CBO expects that the number of such reports would be
relatively small, and we estimate that any additional costs to
the OLC would not be significant. Enacting the bill would not
affect direct spending or revenues.
S. 3501 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 3501.
VI. Conclusion
The OLC Reporting Act of 2008, S. 3501, respects the
privileges and prerogatives of the executive branch while
ensuring that Congress has information it needs in order to
responsibly fulfill its constitutional duties. Prompt passage
and enactment of the bill will help to curb secret law and to
restore the proper balance of power among the branches of
government.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 3501, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
28 U.S.C. 530D
(a) Report.--
(1) In general.--The Attorney General shall submit to
the Congress a report of any instance in which the
Attorney General or any officer of the Department of
Justice--
(A) establishes or implements a formal or
informal policy to refrain--
(i) from enforcing, applying, or
administering any provision of any
Federal statute, rule, regulation,
program, policy, or other law whose
enforcement, application, or
administration is within the
responsibility of the Attorney General
or such officer on the grounds that
such provision is unconstitutional; or
(ii) within any judicial jurisdiction
of or within the United States, from
adhering to, enforcing, applying, or
complying with, any standing rule of
decision (binding upon courts of, or
inferior to those of, that
jurisdiction) established by a final
decision of any court of, or superior
to those of, that jurisdiction,
respecting the interpretation,
construction, or application of the
Constitution, any statute, rule,
regulation, program, policy, or other
law whose enforcement, application, or
administration is within the
responsibility of the Attorney General
or such officer;
(B) determines--
(i) to contest affirmatively, in any
judicial, administrative, or other
proceeding, the constitutionality of
any provision of any Federal statute,
rule, regulation, program, policy, or
other law; or
(ii) to refrain (on the grounds that
the provision is unconstitutional) from
defending or asserting, in any
judicial, administrative, or other
proceeding, the constitutionality of
any provision of any Federal statute,
rule, regulation, program, policy, or
other law, or not to appeal or request
review of any judicial, administrative,
or other determination adversely
affecting the constitutionality of any
such provision; [or]
(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
(D) approves (other than in circumstances in
which a report is submitted to the Joint
Committee on Taxation, pursuant to section 6405
of the Internal Revenue Code of 1986) the
settlement or compromise (other than in
bankruptcy) of any claim, suit, or other
action--
(i) against the United States
(including any agency or
instrumentality thereof) for a sum that
exceeds, or is likely to exceed,
$2,000,000, excluding prejudgment
interest; or
(ii) by the United States (including
any agency or instrumentality thereof)
pursuant to an agreement, consent
decree, or order (or pursuant to any
modification of an agreement, consent
decree, or order) that provides
injunctive or other nonmonetary relief
that exceeds, or is likely to exceed, 3
years in duration: Provided, That for
purposes of this clause, the term
``injunctive or other nonmonetary
relief'' shall not be understood to
include the following, where the same
are a matter of public record--
(I) debarments, suspensions,
or other exclusions from
Government contracts or grants;
(II) mere reporting
requirements or agreements
(including sanctions for
failure to report);
(III) requirements or
agreements merely to comply
with statutes or regulations;
(IV) requirements or
agreements to surrender
professional licenses or to
cease the practice of
professions, occupations, or
industries;
(V) any criminal sentence or
any requirements or agreements
to perform community service,
to serve probation, or to
participate in supervised
release from detention,
confinement, or prison; or
(VI) agreements to cooperate
with the government in
investigations or prosecutions
(whether or not the agreement
is a matter of public record).
(2) Submission of report to the congress.--[For the
purposes of paragraph (1)]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 is submitted to--
(A) the majority leader and minority leader
of the Senate;
(B) the Speaker, majority leader, and
minority leader of the House of
Representatives;
(C) the chairman and ranking minority member
of the Committee on the Judiciary of the House
of Representatives and the chairman and ranking
minority member of the Committee on the
Judiciary of the Senate; and
(D) the Senate Legal Counsel and the General
Counsel of the House of Representatives.
(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 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 subparagraph (1) if--
(i) the unclassified portion of the
report is submitted to each officer
specified in subparagraph (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
subparagraph (1) if--
(I) the unclassified portion
of the report is submitted to
each officer specified in
subparagraph (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 this information
described in subclause (I) to
meet extraordinary
circumstances affecting vital
interests of the United States.
(b) Deadline.--A report shall be submitted--
(1) under subsection (a)(1)(A), not later than 30
days after the establishment or implementation of each
policy;
(2) under subsection (a)(1)(B), within such time as
will reasonably enable the House of Representatives and
the Senate to take action, separately or jointly, to
intervene in timely fashion in the proceeding, but in
no event later than 30 days after the making of each
determination; and
(3) under subsection (a)(1)(C)--
(A) not later than 30 days after the Attorney
General, the Office of Legal Counsel, or any
other officer of the Department of Justice
issues the authoritative 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 issues a directive described in
subsection (a)(3) and that directive is
subsequently rescinded, not later than 30 days
after the President or other responsible
officer rescinds that directive; and
(4) under subsection (a)(1)(D), not later than 30
days after the conclusion of each fiscal-year quarter,
with respect to all approvals occurring in such
quarter.
(c) Contents.--A report required by subsection (a) shall--
(1) specify the date of the establishment or
implementation of the policy described in subsection
(a)(1)(A), of the making of the determination described
in subsection (a)(1)(B), of the issuance of the
authoritative legal interpretation described in
subsection (a)(1)(C), or of each approval described in
subsection (a)(1)[C](D);
(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;
(3) include a complete and detailed statement of the
relevant issues and background (including a complete
and detailed statement of the reasons for the policy,
authoritative legal interpretation, or determination,
and the identity of the officer responsible for
establishing or implementing such policy, issuing such
authoritative legal interpretation, making such
determination, or approving such settlement or
compromise), [except] provided that--
(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));
(B) except for information described in
paragraphs (1) and (2), such details may be
omitted as may be absolutely necessary to
prevent improper disclosure of [national-
security- or classified information, or any]
information subject to the deliberative-
process-, executive-, attorney- work-product-,
or attorney-client privileges, or of any
information the disclosure of which is
prohibited by section 6103 of the Internal
Revenue Code of 1986, or other [law] statute or
any court order if the fact of each such
omission (and the precise ground or grounds
therefor) is clearly noted in the statement:
Provided, That this subparagraph shall not be
construed to deny to the Congress (including
any House, Committee, or agency thereof) any
such omitted details (or related information)
that it lawfully may seek, subsequent to the
submission of the report; and--
[(B)] (C) the requirements of this paragraph
shall be deemed satisfied--
(i) in the case of an authoritative
interpretation described in subsection
(a)(1)(C), if a copy of the Office of
Legal Counsel or other legal opinion
setting forth the interpretation is
provided;
(ii) in the case of an approval
described in subsection
(a)(1)[C](D)(i), if an unredacted copy
of the entire settlement agreement and
consent decree or order (if any) is
provided, along with a statement
indicating the legal and factual basis
or bases for the settlement or
compromise (if not apparent on the face
of documents provided); and
[(ii)] (iii) in the case of an
approval described in subsection
(a)(1)[C](D)(ii), if an unredacted copy
of the entire settlement agreement and
consent decree or order (if any) is
provided, along with a statement
indicating the injunctive or other
nonmonetary relief (if not apparent on
the face of documents provided); and
(3) in the case of a determination described in
subsection (a)(1)(B) or an approval described in
subsection (a)(1)(C), indicate the nature, tribunal,
identifying information, and status of the proceeding,
suit, or action.
(d) Declaration.--In the case of a determination described
in subsection (a)(1)(B), the representative of the United
States participating in the proceeding shall make a clear
declaration in the proceeding that any position expressed as to
the constitutionality of the provision involved is the position
of the executive branch of the Federal Government (or, as
applicable, of the President or of any executive agency or
military department).
(e) Applicability to the President and to Executive
Agencies and Military Departments.--The reporting, declaration,
and other provisions of this section relating to the Attorney
General and other officers of the Department of Justice shall
apply to the President [(but only with respect to the
promulgation of any unclassified Executive order or similar
memorandum or order),]; to the head of each executive agency or
military department (as defined, respectively, in sections 105
and 102 of title 5, United States Code) that establishes or
implements a policy described in subsection (a)(1)(A), issues
an authoritative legal interpretation described in subsection
(a)(1)(C), or is authorized to conduct litigation[,]; and to
the officers of such executive agency.