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S. 3501 (110th): OLC Reporting Act of 2008

The text of the bill below is as of Sep 25, 2008 (Reported by Senate Committee).


II

Calendar No. 1083

110th CONGRESS

2d Session

S. 3501

IN THE SENATE OF THE UNITED STATES

September 16, 2008

(for himself and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

September 25 (legislative day, September 17), 2008

Reported by , without amendment

A BILL

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

1.

Short title

This Act may be cited as the OLC Reporting Act of 2008.

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),.

September 25 (legislative day, September 17), 2008

Reported without amendment