**[Congressional Submission January 2007]{.underline}**

**U.S. Department of Justice**

**FY 2008 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**
6

IV\. Decision Unit Justification

A. Office of Legal Counsel

1\. Program Description 7

2\. Performance Table 8

3\. Performance, Resources and Strategies 8

V. 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 2006 Availability

G.  Crosswalk of 2007 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 2008, the Office of Legal Counsel (OLC) requests a total of
\$6,310,000, 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 2008.

Beginning in FY 2007, electronic copies of the Department of Justice's
congressional budget justifications and Capital Asset Plan and Business
Case exhibits can be viewed or downloaded from the Internet using the
Internet address:
[**[http://www.usdoj.gov/jmd/2008justification/]{.underline}**](http://www.usdoj.gov/jmd/2008justification/).

With the resources requested FY 2008 resources, OLC will be able to
continue to provide top-quality legal advice on matters related to the
Global War on Terrorism 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 has never been more crucial or urgent than in the
continued prosecution of the Global War on Terrorism that the United
States began in the wake of the terrible events of September 11, 2001.
Many of the Office's resources are now devoted to providing legal advice
related to the War on Terrorism and to homeland security for the
Attorney General and various Executive Branch entities. Although the
details of the war have changed over the last five years, and the
content of the related legal work has changed with it (and fluctuates
from week to week), 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,
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 (specifically
implementation of the Intelligence Reform and Terrorism Prevention Act
of 2004) as well as legal issues following the Supreme Court\'s decision
in *Hamdan v. Rumsfeld* and subsequent enactment of the Military
Commissions Act of 2006. 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 2008 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. 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 oral
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. In addition,
OLC is regularly consulted in 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 Administration, and
has assisted in the drafting of legislation.

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 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 1998
have been issued in hardback. OLC plans to continue the efforts begun in
2005 to reduce the backlog in the publication of hardback volumes;
during 2005, OLC published in hardback both the 1997 and 1998 opinions,
and production of the volumes for 1999 and 2000 is in progress. As an
interim measure preliminary to publication in hardback, OLC has on its
web site [<http://www.usdoj.gov/olc/opinions.htm>]{.underline} public
opinions from 1992 to 2006. OLC accelerated the speed with which it
publishes opinions on the web site. Since the middle of 2004, the rate
of publication of OLC opinions has increased, and the time between
opinion signing and publication has decreased. Work on this publication
effort will continue into FY 2008.

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 Global War on Terrorism, and is inherent
in all aspects of the Office's work in reviewing legislation and
testimony.

[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

  2006 Enacted w/Rescissions and       37         37        \$5,861
  Supplementals                                             

  2007 Estimate                        37         37        \$5,972

  Adjustments to Base and Technical    \--        \--       \$338
  Adjustments                                               

  2008 Current Services                37         37        \$6,310

  2008 Program Increases               \--        \--       \--

  2008 Offsets                         \--        \--       \--

  2008 Request                         37         37        \$6,310

  Total Change 2007-2008                                    \$338
  ------------------------------------ ---------- --------- --------------

1\. Program Description

Playing a major role in the post-9/11 Global War on Terrorism, the
Office of Legal Counsel (OLC) has recently had to devote a significant
portion of its resources to providing legal advice related to
counterterrorism and to homeland security for the Attorney General and
various Executive Branch entities. Although the details of the war have
changed over the last five years, and the content of the related legal
work has changed with it (and fluctuates from week to week), 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, 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 (specifically implementation
of the Intelligence Reform and Terrorism Prevention Act of 2004) as well
as legal issues following the Supreme Court\'s decision in *Hamdan v.
Rumsfeld* and subsequent enactment of the Military Commissions Act of
2006. 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 with 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
2008 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.

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. In addition,
OLC is regularly consulted in 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 has taken a major role in preparing
testimony in connection with pending legislation of interest to the
Department and the Administration, and has assisted in the drafting of
legislation. We expect this to continue to be the case in FY 2008.

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

**2. Performance Table**

  -------------------- -------- --------- -------- --------- ----------- -------- ------------- ------- ----------- ---------
  **Performance and                                                                                                 
  Resources Table**                                                                                                 

  Decision Unit:                                                                                                    
  Office of Legal                                                                                                   
  Counsel                                                                                                           

  DOJ Strategic                                                                                                     
  Goal/Objective:                                                                                                   
  Enforce Federal Laws                                                                                              
  and Represent the                                                                                                 
  Rights and Interests                                                                                              
  of the American                                                                                                   
  People                                                                                                            

  Workload/Resources   Final              Actual             Estimated            Changes               Requested   
                       Target                                                                           (Total)     

                       FY 2006            FY 2006            FY 2007              Current               FY 2008     
                                                                                  Services              Request     
                                                                                  Adjustments                       
                                                                                  and FY 2008                       
                                                                                  Program                           
                                                                                  Changes                           

  Workload Measures                                                                                                 

  Provision of Legal   1,625              1,625              1,700                                      1,700       
  Opinions                                                                                                          

  Review of Executive  180                180                190                                        190         
  Orders and                                                                                                        
  Proclamations                                                                                                     

                                                                                                                    

  Total Costs and FTE  FTE      \$000     FTE      \$000     FTE         \$000    FTE           \$000   FTE         \$000

                       37       \$5,861   26       \$5,327   37          \$5972   \-\--         \$338   37          \$6,310
  -------------------- -------- --------- -------- --------- ----------- -------- ------------- ------- ----------- ---------

**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 was not
selected for review under the Program Assessment Rating Tool (PART)
process and not included in the Department's Performance Plan or Report.
However, as noted above, OLC plays a critical legal advisory role in
every aspect of the Department's Strategic Plan.

**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 2008** 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 was not
selected for review under the Program Assessment Rating Tool (PART)
process and not included in the Department's Performance Plan or Report.

Number range CHAPTER

**V. EXHIBITS**