**[Congressional Budget Submission (January 2008)]{.underline}**

**U.S. Department of Justice**

**FY 2009 PERFORMANCE BUDGET**

**Office of Legal Counsel**

# Table of Contents

Page No.

**I. Overview** 2

**II. Summary of Program Changes** N/A

**III. Appropriations Language and Analysis of Appropriations Language**
7

IV\. Decision Unit Justification

A. Office of Legal Counsel

1\. Program Description 8

2\. Performance Table 9

3\. Performance, Resources and Strategies 10

V. E-Government Initiatives 11

VI\. Exhibits

A.  Organizational Chart

B.  Summary of Requirements

C.  Program Increases by Decision Unit N/A

D.  Resources by DOJ Strategic Goal/Objective

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E.  Justification for Base Adjustments

F.  Crosswalk of 2007 Availability

G.  Crosswalk of 2008 Availability

H.  Summary of Reimbursable Resources N/A

I.  Detail of Permanent Positions by Category

J.  Financial Analysis of Program Increases/Offsets N/A

K.  Summary of Requirements by Grade

L.  Summary of Requirements by Object Class

> M. Status of Congressionally Requested Studies, Reports, and
> Evaluations N/A
>
> **I. Overview for Office of Legal Counsel**

**1. Introduction**

In FY 2009, the Office of Legal Counsel (OLC) requests a total of
\$6,693,000, 37 positions (of which 25 are attorneys), and 37 FTE to
meet its primary mission of assisting the Attorney General in his role
as legal advisor to the President and Executive Branch agencies and
providing timely, thorough, and reliable legal advice in response to
requests from the Counsel to the President, general counsels of
Executive Branch departments and agencies, the National Security Council
Legal Advisor, the Office of Management and Budget, the Attorney General
and other Department of Justice officials. OLC is not requesting any
program increases in FY 2009.

With the requested FY 2009 resources, OLC will be able to continue to
provide top-quality legal advice on matters related to the War on Terror
and to homeland security.

Although specifically included only under Strategic Goal II ("Enforce
Federal Laws and Represent the Rights and Interests of the American
People"), OLC is involved in every aspect of the Department's Strategic
Plan, and most especially now the Department's primary goal to Prevent
Terrorism and Promote the Nation's Security. OLC has issued opinions or
otherwise rendered legal advice touching on virtually every aspect of
the Department's overall work and mission.

Given the nature of its mission and workload, OLC was not selected for
review under the Program Assessment Rating Tool (PART) process.

**2. Issues, Outcomes and Strategies**

OLC's mission remains highly critical and urgent in the continued
prosecution of the War on Terror, which began in the wake of the
terrible events of September 11, 2001. Many of the Office's resources
continue to be devoted to providing legal advice related to the War on
Terror and to homeland security for the Attorney General, the White
House, and various Executive Branch entities. Although the details of
the War continue to change, and the content of the related legal work
along with it, the effort to defeat the terrorists and protect the
homeland remains the government's top priority. The War on Terror
continues to raise a tremendous number of novel legal issues in
different contexts. The overall workload in these areas has consistently
represented a very large time commitment by the Office, and we do not
expect that to change. Recent issues have included, among other things,
providing extensive guidance on complex issues related to the Foreign
Intelligence Surveillance Act, advising on litigation (and litigation
risks), providing advice throughout the Executive Branch related to
disaster relief and response (including legal issues pertaining to
preparation for and response to an influenza epidemic, and regarding use
of the military in disaster response), and addressing the numerous
issues that have arisen in the intelligence reform spawned by September
11. The national security related work of the Office in the last year
has included implementation of the Intelligence Reform and Terrorism
Prevention Act of 2004, advising on FISA reform efforts, legal issues
following the Supreme Court's decision in *Hamdan v. Rumsfeld* and
subsequent enactment of the Military Commissions Act of 2006, and the
provision of advice with respect to the implementing regulations for the
Military Commissions Act. This revised focus has, unfortunately, come at
the expense of some of the rest of the Office's workload.

In addition to its significant activities related to counterterrorism
and homeland security, OLC will continue its principal duty of assisting
the Attorney General in his role as legal advisor to the President and
Executive Branch agencies. OLC will also continue in FY 2009 to serve as
arbiter of legal disputes within the Executive Branch, to provide
general legal assistance to other components of the Department,
especially where litigation or proposed legislation raises
constitutional issues or general issues of executive authority, and to
review for form and legality all Executive Orders and Proclamations
proposed by the President, as well as all proposed Orders of the
Attorney General and all regulations requiring Attorney General
approval.

In addition, OLC will continue to be involved in coordinating the work
of the Department regarding treaties, executive agreements and
international organizations, and perform a variety of special
assignments referred to the Office by the Attorney General, the Deputy
Attorney General, or the Associate Attorney General. In recent years,
OLC has been responsible for addressing an increased volume of OMB
requests for review of legislation and testimony, much of it subject to
review on a very expedited basis. The Office is also responsible for
advising the Office of Government Ethics on matters of law in the area
of conflict of interest.

Formal Attorney General opinions are drafted in OLC and reviewed,
revised, and approved by the Attorney General. It is a rare occasion,
however, when opinion requests are considered appropriate for Attorney
General opinions. Instead, requests typically result in the preparation
of legal opinions signed by OLC's Assistant Attorney General or one of
his Deputies based upon the research of one or more of the Office's
staff attorneys. Other requests may result in the provision of informal
advice to the client agency.

OLC is involved in nearly every aspect of the increasingly important
work the Department undertakes in the area of immigration law. OLC aids
the Attorney General in his review of Board of Immigration Appeals
decisions. When the Attorney General decides to certify a case to
himself and issue an opinion, OLC oversees that process. OLC is also
significantly involved in advising on the ongoing review and potential
restructuring of the adjudicatory process within the Executive Office
for Immigration Review. Finally, as Congress and Executive Branch
agencies propose legislation to change immigration laws, OLC provides
legal counsel to the President, the Attorney General, and the Department
on the constitutional limits in this unsettled area of law.

OLC's role in the Department's legislative program has increased
dramatically in recent years, and includes drafting comments on pending
legislation and testimony. OLC regularly receives

legislation for review from both the Office of Management and Budget and
the Department's Office of Legislative Affairs, in addition to specific
requests from other agencies; the volume is high and the deadlines
usually tight. OLC has taken a major role in preparing testimony in
connection with pending legislation of interest to the Department and
the Executive Branch, and has assisted in the drafting of legislation.
The Office has played and continues to play a major role in the
Intelligence Community's efforts to reform the Foreign Intelligence
Surveillance Act.

In addition, because of its expertise in certain areas, OLC has assumed
an on-going advisory role to other Department components, including the
Office of the Solicitor General, the National Security Division, and the
litigating divisions, on issues relating to, among other things,
constitutional rights, national security, and immigration matters.

Since 1977, at the direction of the Attorney General, OLC has published
selected formal opinions. Volumes covering the years 1977 through 2000
have already been issued in hardback and production of the volumes for
2001 and 2002 is in progress. As an interim step, preliminary to
publication in hardback, OLC has on its website
**<http://www.usdoj.gov/olc/opinions.htm>** published opinions from 1992
to 2007. OLC has accelerated the speed with which it publishes opinions
on its website. The rate of publication has increased, and the time
between opinion signing and publication has decreased. Work on this
effort will continue into FY 2009.

3\. Full Program Costs

OLC's budget is fully integrated with its own priorities as well as the
full range of the Department's Strategic Goals and Objectives, most
especially Strategic Goal II: ("Enforce Federal Laws and Represent the
Rights and Interests of the American People").

**4. Performance Challenges**

OLC's ability to accomplish its mission centers primarily on its ability
to maximize resources to meet the demands of an externally-driven
workload.

[External Challenges]{.underline}: OLC generally does not initiate any
programs, nor does it have control over the volume of its work. The work
results from requests for opinions and legal advice from the Counsel to
the President, general counsels of OMB and other Executive Office of the
President components, general counsels of Executive Branch departments
and agencies, the National Security Council Legal Advisor, and the
Attorney General and other Department of Justice officials. The lack of
control over this externally-driven workload has been and is likely to
remain a feature of work on the War on Terror, and is inherent in all
aspects of the Office's work in reviewing legislation, testimony, and
presidential documents.

> [Internal Challenges]{.underline}: Because it is a relatively small
> component, representing only a single decision unit, OLC has little
> flexibility in responding to unexpected surges in workload. The recent
> refocusing of the majority of OLC's resources towards work related to
> counterterrorism and homeland security has necessarily been at the
> expense of other requests for legal opinions. This situation is not
> likely to change in the foreseeable future.

**II. Summary of Program Changes**

*Not Applicable.*

**III. Appropriations Language and Analysis of Appropriations Language**

*Please refer to the General Legal Activities consolidated exhibit and
related analysis.*

**IV. Decision Unit Justification**

A.  **Office of Legal Counsel**

  -------------------------------------- ---------- --------- ------------
  Office of Legal Counsel TOTAL          Perm. Pos. FTE       Amount

  2007 Enacted                           37         37        \$6,278

  2008 Enacted                           37         37        6,184

  Adjustments to Base                                         509

  2009 Current Services                  37         37        6,693

  2009 Program Increases                 0          0         0

  2009 Request                           37         37        6,693

  Total Change 2008-2009                                      509
  -------------------------------------- ---------- --------- ------------

1\. Program Description

Playing a major role in the post-9/11 War on Terror, OLC devotes a
significant portion of its resources to providing legal advice related
to counterterrorism and to homeland security for the White House, the
Attorney General, OMB, and other Executive Branch agencies. Although the
details of the War continue to change, and the content of the related
legal work along with it, the effort to defeat terrorists and protect
the homeland remains the government\'s top priority. The War on Terror
continues to raise a tremendous number of novel legal issues in
different contexts. The overall workload in these areas has consistently
represented a very large time commitment by the Office, and we do not
expect that to change. Recent issues have included, among other things,
providing extensive guidance on complex issues related to the Foreign
Intelligence Surveillance Act, advising on litigation (and litigation
risks), providing advice throughout the Executive Branch related to
disaster relief and response (including legal issues pertaining to
preparation for and response to an influenza epidemic), and addressing
the numerous issues that have arisen in the intelligence reform spawned
by September 11. The national security related work of the Office in the
last year has included implementation of the Intelligence Reform and
Terrorism Prevention Act of 2004, legal issues following the Supreme
Court's decision in *Hamdan v. Rumsfeld* and subsequent enactment of the
Military Commissions Act of 2006, and the provision of advice with
respect to the implementing regulations for the Military Commissions
Act. This revised focus has, unfortunately, come at the expense of some
of the rest of the Office's workload.

OLC will continue its principal duty of assisting the Attorney General
in his role as legal advisor to the President and Executive Branch
agencies. OLC will also continue in FY 2009 to serve as arbiter of legal
disputes within the Executive Branch, to provide general legal
assistance to other components of the Department, especially where
litigation or proposed legislation raise constitutional issues or
general issues of executive authority, and to review for form and
legality all Executive Orders and Proclamations proposed by the
President, as well as all proposed Orders of the Attorney General and
all regulations requiring Attorney General approval.

OLC is involved in nearly every aspect of the increasingly important
work the Department undertakes in the area of immigration law. OLC aids
the Attorney General in his review of Board of Immigration Appeals
decisions. When the Attorney General decides to certify a case to
himself and issue an opinion, OLC oversees that process. OLC is also
significantly involved in advising on the ongoing review and potential
restructuring of the adjudicatory process within the Executive Office
for Immigration Review. Finally, as Congress and Executive Branch
agencies propose legislation to change immigration laws, OLC provides
legal counsel to the President, the Attorney General, and the Department
on the constitutional limits in this unsettled area of law.

OLC's role in the Department's legislative program has increased
dramatically in recent years, and includes drafting comments on pending
legislation and testimony. OLC regularly receives legislation for review
from both OMB and the Department's Office of Legislative Affairs, in
addition to specific requests from other agencies; the volume is high
and the deadlines usually tight. OLC has taken a major role in preparing
testimony in connection with pending legislation of interest to the
Department and the Executive Branch, and has assisted in the drafting of
legislation. The Office has played and continues to play a major role in
the Intelligence Community's efforts to reform the Foreign Intelligence
Surveillance Act.

In addition, because of its expertise in certain areas, OLC has assumed
an on-going advisory role to other Department components, including the
Office of the Solicitor General, the National Security Division, and the
litigating divisions, on issues relating to, among other things,
constitutional rights, national security, and immigration matters.

**2. Performance Table**

<table style="width:100%;">
<colgroup>
<col style="width: 25%" />
<col style="width: 5%" />
<col style="width: 7%" />
<col style="width: 5%" />
<col style="width: 7%" />
<col style="width: 5%" />
<col style="width: 11%" />
<col style="width: 8%" />
<col style="width: 9%" />
<col style="width: 5%" />
<col style="width: 8%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="11"><strong>Performance and Resources Table</strong></td>
</tr>
<tr class="even">
<td colspan="11">Decision Unit: Office of Legal Counsel</td>
</tr>
<tr class="odd">
<td colspan="11">DOJ Strategic Goal/Objective: Enforce Federal Laws and
Represent the Rights and Interests of the American People</td>
</tr>
<tr class="even">
<td>Workload/Resources</td>
<td colspan="2">Final Target</td>
<td colspan="2">Actual</td>
<td colspan="2">Projected</td>
<td colspan="2">Changes</td>
<td colspan="2">Requested (Total)</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="2">FY 2007</td>
<td colspan="2">FY 2007</td>
<td colspan="2">FY 2008 Enacted</td>
<td colspan="2"><p>Current Services Adjustments and</p>
<p>FY 2009 Program Changes</p></td>
<td colspan="2">FY 2009 Request</td>
</tr>
<tr class="even">
<td>Workload Measures</td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td>Provision of Legal Opinions</td>
<td colspan="2">1,700</td>
<td colspan="2">1,700</td>
<td colspan="2">1,700</td>
<td colspan="2"></td>
<td colspan="2">1,700</td>
</tr>
<tr class="even">
<td>Review of Executive Orders and Proclamations</td>
<td colspan="2">190</td>
<td colspan="2">190</td>
<td colspan="2">190</td>
<td colspan="2"></td>
<td colspan="2">190</td>
</tr>
<tr class="odd">
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td>Total Costs and FTE</td>
<td>FTE</td>
<td>$000</td>
<td>FTE</td>
<td>$000</td>
<td>FTE</td>
<td>$000</td>
<td>FTE</td>
<td>$000</td>
<td>FTE</td>
<td>$000</td>
</tr>
<tr class="odd">
<td></td>
<td>37</td>
<td>$6,278</td>
<td>29</td>
<td>$5,801</td>
<td>37</td>
<td>$6,184</td>
<td>0</td>
<td>$509</td>
<td>37</td>
<td>$6,693</td>
</tr>
</tbody>
</table>

**3. Performance, Resources and Strategies**

The Office of Legal Counsel represents a single decision unit. Given its
primary mission ("assisting the Attorney General in his role as legal
advisor to the President and Executive Branch agencies"), OLC is
involved in every aspect of the Department's Strategic Plan. OLC has
issued opinions or otherwise rendered legal advice touching on virtually
every aspect of the Department's overall work and mission.

**a. Performance Plan and Report for Outcomes**

Given the legal advisory nature of its mission and workload, OLC is not
included for review in the Department's Performance and Accountability
Report (PAR). This budget submission is part of the Department's
Performance Plan since we are reporting targets through FY09. However,
OLC does not have measures in the PAR.

**b. Strategies to Accomplish Outcomes**

Since September 11, 2001, OLC has had to realign its priorities in terms
of workload and assignments in order to meet the variety of new
challenges brought on by the new focus on counterterrorism and homeland
security, while still endeavoring to meet its ongoing workload demands
to the greatest extent possible with existing resources.

**OLC's general goals for FY 2009** are as follows:

● To provide critical legal advice to the White House, the Attorney
General, and other Executive Branch agencies.

> ● To resolve intra-Executive Branch disputes over legal questions.
>
> ● To advise other components of the Department of Justice where
> litigation or proposed legislation raises constitutional issues or
> other legal issues of general concern to the Executive Branch.

● To approve for form and legality all Executive Orders and Orders of
the Attorney General.

**c. Results of Program Assessment Rating Tool (PART) Reviews**

Given the legal advisory nature of its mission and workload, OLC is not
included for review in the Department's Performance and Accountability
Report (PAR). This budget submission is part of the Department's
Performance Plan since we are reporting targets through FY09. However,
OLC does not have measures in the PAR.

**V*.* E-Government Initiatives**

The Justice Department is fully committed to the President's Management
Agenda (PMA) and E-Government (E-Gov) initiatives that are integral to
achieving the objectives of the PMA. The E-Gov initiatives serve
citizens, business, and federal employees by delivering high quality
services more efficiently at a lower price. The Department is in varying
stages of implementing E-Gov solutions and services including
initiatives focused on integrating government wide transactions,
processes, standards adoption, and consolidation of administrative
systems that are necessary tools for agency administration, but are not
core to DOJ's mission. To ensure that DOJ obtains value from the various
initiatives, the Department actively participates in the governance
bodies that direct the initiatives and we communicate regularly with the
other federal agencies that are serving as the "Managing Partners" to
ensure that initiatives meet the needs of the Department and its
customers. The Department believes that working with other agencies to
implement common or consolidated solutions will help DOJ reduce the
funding requirements for administrative and public-facing systems,
thereby allowing DOJ to focus more of its scarce resources on higher
priority, mission related needs. DOJ's modest contributions to the
Administration's E-Gov projects will facilitate achievement of this
objective.

**A. Funding and Costs**

The Department of Justice participates in the following E-Gov
initiatives and Lines of Business:

  --------------------- ----------------- ----------------- ----------------
  Business Gateway      E-Travel          Integrated        Case Management
                                          Acquisition       LoB
                                          Environment       

  Disaster Assistance   Federal Asset     IAE - Loans &     Geospatial LoB
  Improvement Plan      Sales             Grants - Dunn &   
                                          Bradstreet        

  Disaster Assist.      Geospatial        Financial Mgmt.   Budget
  Improvement Plan -    One-Stop          Consolidated LoB  Formulation and
  Capacity Surge                                            Execution LoB

  E-Authentication      GovBenefits.gov   Human Resources   IT
                                          LoB               Infrastructure
                                                            LoB

  E-Rulemaking          Grants.gov        Grants Management 
                                          LoB               
  --------------------- ----------------- ----------------- ----------------

The Department of Justice E-Gov expenses -- i.e. DOJ's share of E-Gov
initiatives managed by other federal agencies -- are paid for from the
Department's Working Capital Fund. These costs, along with other
internal E-Gov related expenses (oversight and administrative expenses
such as salaries, rent, etc.) are reimbursed by the components to the
WCF. The OLC reimbursement amount is based on anticipated or realized
benefits from an E-Gov initiative. OLC's actual or planned reimbursement
to the Department's Working Capital Fund is \$2,000 for FY2008 and
\$2,000 for FY2009.

B.  **Benefits**

OLC has reimbursable agreements in place with various offices within the
Justice Management Division that provide information technology,
financial management, and human resource support. E-Gov activities are
ongoing or planned in each of these areas and as the Department
completes migrations to common solutions provided by an E-Gov or Line of
Business initiative, OLC expects to benefit as the Department retires
legacy systems and provides additional information and services which
can be used to better manage OLC operations.

The E-Gov Initiatives and Lines of Businesses where OLC ultimately
expects to realize benefits are the Financial Management Consolidated
Line of Business, the Human Resource Line of Business, and the
Information Technology Infrastructure Line of Business. All three are
currently under development and there are as yet no operational
capabilities for which benefits can be quantified.

Number range CHAPTER

**EXHIBITS**