S 3501 ISRSCommentsClose CommentsPermalink

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

September 16, 2008CommentsClose CommentsPermalink

Mr. FEINGOLD (for himself and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘OLC Reporting Act of 2008’.CommentsClose CommentsPermalink

SEC. 2. REPORTING.

Section 530D of title 28, United States Code, is amended--CommentsClose CommentsPermalink





(1) in subsection (a)--CommentsClose CommentsPermalink





(A) in paragraph (1)--CommentsClose CommentsPermalink





(i) in subparagraph (B), by striking ‘or’ at the end;CommentsClose CommentsPermalink





(ii) by redesignating subparagraph (C) as subparagraph (D); andCommentsClose CommentsPermalink





(iii) by inserting after subparagraph (B) the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) that concludes that the provision is unconstitutional or would be unconstitutional in a particular application;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(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); orCommentsClose CommentsPermalink





‘(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; orCommentsClose CommentsPermalink





‘(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’;CommentsClose CommentsPermalink





(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’; andCommentsClose CommentsPermalink





(C) by adding at the end the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(B) the directive described in subparagraph (A) is in effect.CommentsClose CommentsPermalink





‘(4) CLASSIFIED INFORMATION-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) the unclassified portion of the report is submitted to each officer specified in paragraph (2); andCommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(B) SUBMISSION OF REPORT CONTAINING CERTAIN CLASSIFIED INFORMATION ABOUT COVERT ACTIONS-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(I) the unclassified portion of the report is submitted to each officer specified in paragraph (2); andCommentsClose CommentsPermalink





‘(II) the classified annex is submitted to--CommentsClose CommentsPermalink

‘(aa) the chairman and ranking minority member of the Select Committee on Intelligence of the Senate;CommentsClose CommentsPermalink

‘(bb) the chairman and ranking minority member of the Committee on the Judiciary of the Senate;CommentsClose CommentsPermalink

‘(cc) the chairman and ranking minority member of the Permanent Select Committee on Intelligence of the House of Representatives;CommentsClose CommentsPermalink

‘(dd) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives;CommentsClose CommentsPermalink

‘(ee) the Speaker and minority leader of the House of Representatives; andCommentsClose CommentsPermalink

‘(ff) the majority leader and minority leader of the Senate.CommentsClose CommentsPermalink

‘(ii) CIRCUMSTANCES- A circumstance described in this clause is a circumstance in which--CommentsClose CommentsPermalink





‘(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)); andCommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(2) in subsection (b)--CommentsClose CommentsPermalink





(A) in paragraph (2), by striking ‘and’ at the end;CommentsClose CommentsPermalink





(B) by redesignating paragraph (3) as paragraph (4);CommentsClose CommentsPermalink





(C) by inserting after paragraph (2) the following:CommentsClose CommentsPermalink





‘(3) under subsection (a)(1)(C)--CommentsClose CommentsPermalink





‘(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; orCommentsClose CommentsPermalink





‘(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’; andCommentsClose CommentsPermalink





(D) in paragraph (4), as so redesignated, by striking ‘subsection (a)(1)(C)’ and inserting ‘subsection (a)(1)(D)’;CommentsClose CommentsPermalink





(3) in subsection (c)--CommentsClose CommentsPermalink





(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)’;CommentsClose CommentsPermalink





(B) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;CommentsClose CommentsPermalink





(C) by inserting after paragraph (1) the following:CommentsClose CommentsPermalink





‘(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;’;CommentsClose CommentsPermalink





(D) in paragraph (3), as so redesignated--CommentsClose CommentsPermalink





(i) by striking ‘reasons for the policy or determination’ and inserting ‘reasons for the policy, authoritative legal interpretation, or determination’;CommentsClose CommentsPermalink





(ii) by inserting ‘issuing such authoritative legal interpretation,’ after ‘or implementing such policy,’;CommentsClose CommentsPermalink





(iii) by striking ‘except that’ and inserting ‘provided that’;CommentsClose CommentsPermalink





(iv) by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (C), respectively;CommentsClose CommentsPermalink





(v) by inserting before subparagraph (B), as so redesignated, the following:CommentsClose CommentsPermalink





‘(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));’;CommentsClose CommentsPermalink





(vi) in subparagraph (B), as so redesignated--CommentsClose CommentsPermalink





(I) by inserting ‘except for information described in paragraph (1) or (2),’ before ‘such details may be omitted’;CommentsClose CommentsPermalink





(II) by striking ‘national-security- or classified information, of any’; andCommentsClose CommentsPermalink





(III) by striking ‘or other law’ and inserting ‘or other statute’;CommentsClose CommentsPermalink





(vii) in subparagraph (C), as so redesignated--CommentsClose CommentsPermalink





(I) by redesignating clauses (i) and (ii) as clauses (ii) and (iii), respectively;CommentsClose CommentsPermalink





(II) by inserting before clause (ii), as so redesignated, the following:CommentsClose CommentsPermalink





‘(i) in the case of an authoritative legal interpretation described in subsection (a)(1)(C), if a copy of the Office of Legal Counsel or other legal opinion setting forth the authoritative legal interpretation is provided;’;CommentsClose CommentsPermalink





(III) in clause (ii), as so redesignated, by striking ‘subsection (a)(1)(C)(i)’ and inserting ‘subsection (a)(1)(D)(i)’; andCommentsClose CommentsPermalink





(IV) in clause (iii), as so redesignated, by striking ‘subsection (a)(1)(C)(ii)’ and inserting ‘subsection (a)(1)(D)(ii)’; andCommentsClose CommentsPermalink





(E) in paragraph (4), as so redesignated, by striking ‘subsection (a)(1)(C)(i)’ and inserting ‘subsection (a)(1)(D)(i)’; andCommentsClose CommentsPermalink





(4) in subsection (e)--CommentsClose CommentsPermalink





(A) by striking ‘(but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order)’; andCommentsClose CommentsPermalink





(B) by inserting ‘issues an authoritative interpretation described in subsection (a)(1)(C),’ after ‘policy described in subsection (a)(1)(A),’.CommentsClose CommentsPermalink