[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3501 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 3501
To ensure that Congress is notified when the Department of Justice
determines that the Executive Branch is not bound by a statute.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 16, 2008
Mr. Feingold (for himself and Mrs. Feinstein) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To ensure that Congress is notified when the Department of Justice
determines that the Executive Branch is not bound by a statute.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``OLC Reporting Act of 2008''.
SEC. 2. REPORTING.
Section 530D of title 28, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) in subparagraph (B), by striking ``or''
at the end;
(ii) by redesignating subparagraph (C) as
subparagraph (D); and
(iii) by inserting after subparagraph (B)
the following:
``(C) except as provided in paragraph (3), issues
an authoritative legal interpretation (including an
interpretation under section 511, 512, or 513 by the
Attorney General or by an officer, employee, or agency
of the Department of Justice pursuant to a delegation
of authority under section 510) of any provision of any
Federal statute--
``(i) that concludes that the provision is
unconstitutional or would be unconstitutional
in a particular application;
``(ii) that relies for the conclusion of
the authoritative legal interpretation, in
whole or in the alternative, on a determination
that an interpretation of the provision other
than the authoritative legal interpretation
would raise constitutional concerns under
article II of the Constitution of the United
States or separation of powers principles;
``(iii) that relies for the conclusion of
the authoritative legal interpretation, in
whole or in the alternative, on a legal
presumption against applying the provision,
whether during a war or otherwise, to--
``(I) any department or agency
established in the executive branch of
the Federal Government, including the
Executive Office of the President and
the military departments (as defined in
section 101(8) of title 10); or
``(II) any officer, employee, or
member of any department or agency
established in the executive branch of
the Federal Government, including the
President and any member of the Armed
Forces; or
``(iv) that concludes the provision has
been superseded or deprived of effect in whole
or in part by a subsequently enacted statute
where there is no express statutory language
stating an intent to supersede the prior
provision or deprive it of effect; or'';
(B) in paragraph (2), by striking ``For the
purposes'' and all that follows through ``if the
report'' and inserting ``Except as provided in
paragraph (4), a report shall be considered to be
submitted to the Congress for the purposes of paragraph
(1) if the report''; and
(C) by adding at the end the following:
``(3) Direction regarding interpretation.--The submission
of a report to Congress based on the issuance of an
authoritative legal interpretation described in paragraph
(1)(C) shall be discretionary on the part of the Attorney
General or an officer described in subsection (e) if--
``(A) the President or other responsible officer of
a department or agency established in the executive
branch of the Federal Government, including the
Executive Office of the President and the military
departments (as defined in section 101(8) of title 10),
expressly directs that no action be taken or withheld
or policy implemented or stayed on the basis of the
authoritative legal interpretation; and
``(B) the directive described in subparagraph (A)
is in effect.
``(4) Classified information.--
``(A) Submission of report containing classified
information regarding intelligence activities.--Except
as provided in subparagraph (B), if the Attorney
General submits a report relating to an instance
described in paragraph (1) that includes a classified
annex containing information relating to intelligence
activities, the report shall be considered to be
submitted to the Congress for the purposes of paragraph
(1) if--
``(i) the unclassified portion of the
report is submitted to each officer specified
in paragraph (2); and
``(ii) the classified annex is submitted to
the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate and
the Permanent Select Committee on Intelligence
and the Committee on the Judiciary of the House
of Representatives.
``(B) Submission of report containing certain
classified information about covert actions.--
``(i) In general.--In a circumstance
described in clause (ii), a report described in
that clause shall be considered to be submitted
to the Congress for the purposes of paragraph
(1) if--
``(I) the unclassified portion of
the report is submitted to each officer
specified in paragraph (2); and
``(II) the classified annex is
submitted to--
``(aa) the chairman and
ranking minority member of the
Select Committee on
Intelligence of the Senate;
``(bb) the chairman and
ranking minority member of the
Committee on the Judiciary of
the Senate;
``(cc) the chairman and
ranking minority member of the
Permanent Select Committee on
Intelligence of the House of
Representatives;
``(dd) the chairman and
ranking minority member of the
Committee on the Judiciary of
the House of Representatives;
``(ee) the Speaker and
minority leader of the House of
Representatives; and
``(ff) the majority leader
and minority leader of the
Senate.
``(ii) Circumstances.--A circumstance
described in this clause is a circumstance in
which--
``(I) the Attorney General submits
a report relating to an instance
described in paragraph (1) that
includes a classified annex containing
information relating to a Presidential
finding described in section 503(a) of
the National Security Act of 1947 (50
U.S.C. 413b(a)); and
``(II) the President determines
that it is essential to limit access to
the information described in subclause
(I) to meet extraordinary circumstances
affecting vital interests of the United
States.'';
(2) in subsection (b)--
(A) in paragraph (2), by striking ``and'' at the
end;
(B) by redesignating paragraph (3) as paragraph
(4);
(C) by inserting after paragraph (2) the following:
``(3) under subsection (a)(1)(C)--
``(A) not later than 30 days after the date on
which the Attorney General, the Office of Legal
Counsel, or any other officer of the Department of
Justice issues the authoritative legal interpretation
of the Federal statutory provision; or
``(B) if the President or other responsible officer
of a department or agency established in the executive
branch of the Federal Government, including the
Executive Office of the President and the military
departments (as defined in section 101(8) of title 10),
issues a directive described in subsection (a)(3) and
the directive is subsequently rescinded, not later than
30 days after the date on which the President or other
responsible officer rescinds that directive; and''; and
(D) in paragraph (4), as so redesignated, by
striking ``subsection (a)(1)(C)'' and inserting
``subsection (a)(1)(D)'';
(3) in subsection (c)--
(A) in paragraph (1), by striking ``or of each
approval described in subsection (a)(1)(C)'' and
inserting ``of the issuance of the authoritative legal
interpretation described in subsection (a)(1)(C), or of
each approval described in subsection (a)(1)(D)'';
(B) by redesignating paragraphs (2) and (3) as
paragraphs (3) and (4), respectively;
(C) by inserting after paragraph (1) the following:
``(2) with respect to a report required under subparagraph
(A), (B), or (C) of subsection (a)(1), specify the Federal
statute, rule, regulation, program, policy, or other law at
issue, and the paragraph and clause of subsection (a)(1) that
describes the action of the Attorney General or other officer
of the Department of Justice;'';
(D) in paragraph (3), as so redesignated--
(i) by striking ``reasons for the policy or
determination'' and inserting ``reasons for the
policy, authoritative legal interpretation, or
determination'';
(ii) by inserting ``issuing such
authoritative legal interpretation,'' after
``or implementing such policy,'';
(iii) by striking ``except that'' and
inserting ``provided that'';
(iv) by redesignating subparagraphs (A) and
(B) as subparagraphs (B) and (C), respectively;
(v) by inserting before subparagraph (B),
as so redesignated, the following:
``(A) any classified information shall be provided
in a classified annex, which shall be handled in
accordance with the security procedures established
under section 501(d) of the National Security Act of
1947 (50 U.S.C. 413(d));'';
(vi) in subparagraph (B), as so
redesignated--
(I) by inserting ``except for
information described in paragraph (1)
or (2),'' before ``such details may be
omitted'';
(II) by striking ``national-
security- or classified information, of
any''; and
(III) by striking ``or other law''
and inserting ``or other statute'';
(vii) in subparagraph (C), as so
redesignated--
(I) by redesignating clauses (i)
and (ii) as clauses (ii) and (iii),
respectively;
(II) by inserting before clause
(ii), as so redesignated, the
following:
``(i) in the case of an authoritative legal
interpretation described in subsection
(a)(1)(C), if a copy of the Office of Legal
Counsel or other legal opinion setting forth
the authoritative legal interpretation is
provided;'';
(III) in clause (ii), as so
redesignated, by striking ``subsection
(a)(1)(C)(i)'' and inserting
``subsection (a)(1)(D)(i)''; and
(IV) in clause (iii), as so
redesignated, by striking ``subsection
(a)(1)(C)(ii)'' and inserting
``subsection (a)(1)(D)(ii)''; and
(E) in paragraph (4), as so redesignated, by
striking ``subsection (a)(1)(C)(i)'' and inserting
``subsection (a)(1)(D)(i)''; and
(4) in subsection (e)--
(A) by striking ``(but only with respect to the
promulgation of any unclassified Executive order or
similar memorandum or order)''; and
(B) by inserting ``issues an authoritative
interpretation described in subsection (a)(1)(C),''
after ``policy described in subsection (a)(1)(A),''.
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