79–010 

Calendar No. 1083 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–528 

OLC REPORTING ACT OF 2008 

DECEMBER 11 (legislative day, DECEMBER 10), 2008.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany S. 3501] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to which was referred the bill 

(S. 3501), to ensure that Congress is notified when the Department 

of Justice determines that the Executive Branch is not bound by 

a statute, having considered the same, reports favorably thereon, 

without amendment, and recommends that the bill do pass. 

CONTENTS 

Page 

I. Background and Purpose of the OLC Reporting Act of 2008 ..................... 1 

II. History of the Bill and Committee Consideration ....................................... 6 

III. Section-by-Section Summary of the Bill ...................................................... 6 

IV. Congressional Budget Office Cost Estimate ................................................ 7 

V. Regulatory Impact Evaluation ...................................................................... 8 

VI. Conclusion ...................................................................................................... 8 

VII. Changes to Existing Law Made by the Bill, as Reported ........................... 8 

I. BACKGROUND AND PURPOSE OF THE OLC REPORTING ACT OF 2008 

The purpose of the OLC Reporting Act of 2008 (‘‘the Act’’) is to 

provide a targeted response to a particularly problematic manifestation of ‘‘secret law’’—secret legal opinions issued by the Department of Justice (DOJ) that effectively exempt the executive 

branch from compliance with federal statutes. The Act requires the 

Attorney General to report to Congress when DOJ issues such an 

opinion, thus allowing Congress to assess the Department’s interpretation and respond, where necessary, through legislation or 

oversight. 


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1Torres v. Immigration and Naturalization Serv., 144 F.3d 472, 474 (7th Cir. 1998) (‘‘The idea 

of secret laws is repugnant.’’); Kenneth Davis, Administrative Law Treatise 137 (1970) (‘‘Secret 

law is an abomination.’’). 2 Jack Goldsmith, The Terror Presidency 36 (2007). 

3Oversight of the Department of Justice: Hearing Before the S. Comm. on the Judiciary, 

110th Cong. (July 9, 2008) (forthcoming) (testimony of Michael B. Mukasey, Attorney General 

of the United States: ‘‘Any CIA official who acted in good faith reliance on an opinion by the 

Department of Justice that his or her conduct was lawful cannot and should not be prosecuted 

. . . .’’). 

It is a basic tenet of democracy that the people have a right to 

know the law. The notion of ‘‘secret law’’ has been described in 

court opinions and law treatises as ‘‘repugnant’’ and ‘‘an abomination.’’ 1 In keeping with this principle, the laws passed by Congress 

and the case law developed by the courts have historically been 

matters of public record. When it became apparent in the middle 

of the 20th century that federal agencies were increasingly creating 

a body of non-public administrative law, Congress passed several 

statutes requiring this law to be made public—including the Federal Register Act, the Administrative Procedure Act, and the Freedom of Information Act—for the express purpose of preventing a 

regime of ‘‘secret law.’’ 

The law that applies in this country, however, includes more 

than just statutes, case law, and agency regulations. It includes 

certain controlling legal interpretations issued by the executive 

branch—in particular, legal opinions issued by DOJ’s Office of 

Legal Counsel (OLC). 

An opinion issued by OLC is not just a piece of legal advice, such 

as the advice individuals or corporations might solicit from their 

lawyers. An OLC opinion binds the entire executive branch, just 

like the ruling of a court. If a court were to reach a different interpretation than OLC, the court’s interpretation would prevail—but 

many OLC opinions concern matters that courts never have the 

chance to decide. On those matters, OLC essentially is the final interpreter of the law. In the words of Jack Goldsmith, former head 

of OLC under President Bush: ‘‘These executive branch precedents 

are ‘law’ for the executive branch.’’ 2

Opinions by OLC are ‘‘law’’ in another sense, as well. Attorney 

General Mukasey has stated that DOJ will not prosecute a government actor for criminal conduct if he or she relied on an OLC opinion.3 Thus, even if a court overturns OLC’s interpretation, the opinion may grant retroactive immunity for past violations of the law. 

The Bush administration has relied heavily on secret OLC opinions in a broad range of matters involving core constitutional rights 

and civil liberties. The administration’s policies on interrogation of 

detainees were justified by OLC opinions that were withheld from 

Congress and the public for several years. The President’s 

warrantless wiretapping program was justified by OLC opinions 

that, to this day, have been seen only by a select few members of 

Congress. And, when it was finally made public this year, the 

March 2003 memorandum on torture written by John Yoo was 

filled with references to other OLC memos that Congress and the 

public have never seen—on subjects ranging from the government’s 

ability to detain U.S. citizens without congressional authorization 

to the government’s ability to operate outside the Fourth Amendment in domestic military operations. 

The few opinions whose content has been made public share a 

notable characteristic: They conclude that various laws enacted by 


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4 National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132 (1975). 5See National Council of La Raza v. Department of Justice, 411 F.3d 350 (2d Cir. 2005) (the 

three-judge panel was unanimous and the Department of Justice did not seek Supreme Court 

review). 

Congress do not apply to the conduct of the executive branch. The 

March 2003 Yoo torture memo took the alarming position that the 

executive branch was not bound by the criminal statute prohibiting 

torture when interrogating detainees. Similarly, former acting OLC 

head Steve Bradbury has acknowledged that the President’s 

warrantless wiretapping program was supported by OLC opinions 

claiming that the President’s wiretapping authority was not limited 

by the constraints of the Foreign Intelligence Surveillance Act. The 

titles of other OLC opinions referenced in the March 2003 Yoo torture memo strongly suggest that other statutory constraints have 

been disregarded in a similar manner. 

The secrecy of these opinions cannot be justified or explained 

away by a wholesale claim of privilege. To be sure, there are sound 

arguments for shielding from public disclosure deliberations among 

OLC lawyers, and some OLC opinions. But once a final OLC opinion is issued and adopted as the basis for an executive branch policy, that opinion is no longer mere legal advice or a deliberative 

document—it is effectively the law. John P. Elwood, the Deputy Assistant Attorney General for OLC, acknowledged in testimony before the Constitution Subcommittee that the confidentiality interest 

in OLC opinions is ‘‘completely different’’ for opinions that have 

been implemented as policy, and that such opinions should be 

made public ‘‘as fast as possible.’’ 

The case law reflects this distinction between legal advice or deliberations, on the one hand, and final opinions that support agency policy or action, on the other. The Supreme Court has held that 

‘‘opinions and interpretations which embody [an] agency’s effective 

law and policy’’ are not privileged, precisely because agencies otherwise would be operating under ‘‘secret law.’’ 4 The Second Circuit 

has applied this analysis to the particular context of OLC opinions, 

and has held that the attorney-client privilege does not apply to 

OLC opinions if those opinions have been adopted as, or incorporated into, an agency’s policy.5

There is an even stronger interest in disclosure when an OLC 

opinion concludes that the executive branch is not bound by a federal statute. In such cases, the executive branch is no longer operating according to the rules that are on the books. Such opinions 

create a separate—and sometimes conflicting—regime of secret 

law. Moreover, Congress has an institutional and constitutional interest in knowing when DOJ opines that the executive branch is 

not bound by a statute, and the reasons for that opinion. If DOJ 

concludes that a statute is unconstitutional, Congress may wish to 

challenge that position, or it may decide to rewrite the law to avoid 

the perceived constitutional problem. Similarly, if DOJ concludes 

that Congress did not intend for a statute to apply to the executive 

branch, then Congress should have the opportunity to assess that 

conclusion and revise the law, if necessary, to make its intent clear. 

None of this can happen when Congress is denied access to the 

opinion. 

Recognizing Congress’s strong interest in knowing when DOJ 

takes issue with its enactments, current law requires the Attorney 


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6 Johnsen and Berenson’s joint letter in support of the bill appears at the end of this report. 

General to report to Congress when DOJ decides that it will not 

enforce or defend a statute because it considers the statute unconstitutional. This reporting provision, however, does not reach situations in which OLC stops short of declaring a statute unconstitutional and, instead, construes the statute not to apply to the executive branch in order to avoid a finding of unconstitutionality. At an 

April 30, 2008, Constitution Subcommittee hearing entitled ‘‘Secret 

Law and the Threat to Democratic and Accountable Government,’’ 

Dawn E. Johnsen, who served as Acting Assistant Attorney General for OLC for two years under President Clinton, and Bradford 

A. Berenson, who served as counsel to President Bush from 2001 

through 2003, agreed that the law should be amended to require 

reporting to Congress in these situations as well. 

The OLC Reporting Act of 2008 grew out of this bipartisan agreement. It was drafted with the substantial assistance and input of 

Johnsen, Berenson, and a group of former OLC officials and attorneys, many of whom are constitutional scholars.6 The aim was to 

craft targeted legislation that would allow Congress to be sufficiently informed when OLC determines that a particular statute 

does not bind the executive branch, without encroaching on the institutional interests and prerogatives of OLC or the executive 

branch more generally. The result is legislation that takes a measured and balanced approach to the problem. 

The bill adds a new disclosure requirement to 28 U.S.C. 530D, 

the statutory provision that requires the Attorney General to report to Congress if DOJ decides not to enforce or defend a statute 

on the ground that it is unconstitutional. Under the bill, the Attorney General must also report to Congress under four circumstances: 

First, a report is required if DOJ issues an opinion that concludes that a federal statute is unconstitutional. Current law requires reporting only when DOJ decides not to defend or enforce 

a statute, which does not necessarily reach cases in which an agency policy conflicts with a statute but DOJ is not presented with the 

opportunity for an enforcement action and the policy has not been 

challenged in court. 

Second, a report is required if DOJ relies on the so-called ‘‘doctrine of constitutional avoidance’’ and cites Article II or the separation of powers. In other words, a report is required if DOJ determines that applying a statute to executive branch officials would 

raise constitutional problems but that it will be construed not to 

apply. Regardless of the validity of this determination, the effect is 

to exempt executive branch officials from the statute’s reach—a result that Congress should know. 

Third, a report is required if DOJ relies on a legal presumption 

against applying a statute to the executive branch. For example, 

the March 2003 Yoo torture memo relied on the legal presumption 

that laws of general applicability, such as those prohibiting torture, 

do not apply to the conduct of the military during wartime. The criterion of a legal presumption, as used in the bill, serves to keep the 

reporting requirement narrowly tailored: It captures situations in 

which the executive branch is exempted from a statute categorically, without requiring reporting in more run-of-the-mill cases 


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where a particular executive action simply does not fall within the 

statute. 

Fourth, a report is required if DOJ determines that a statute has 

been superseded by a later enactment, when the later enactment 

does not expressly say it is intended to supersede an earlier statute. This provision would address situations like OLC’s conclusion 

that the Authorization for Use of Military Force superseded the 

constraints of the Foreign Intelligence Surveillance Act. In such 

cases, reporting to Congress gives Congress the opportunity to clarify its intent. 

These reporting requirements are accompanied by several provisions to ensure scrupulous respect for executive privileges and prerogatives. The Attorney General may not be required to disclose 

the OLC opinion itself, as long as the report to Congress includes 

the information already required under 28 U.S.C. § 530D whenever 

DOJ decides not to enforce or defend a statute—namely, a complete 

and detailed statement of the relevant issues and background. Furthermore, the bill leaves intact section 530D’s provision allowing 

the Attorney General to exclude privileged information from the 

statement. The only information that could not be excluded is the 

date of the opinion, the statute at issue, and within which of the 

four reporting categories the opinion falls. No report would be required if officials expressly declined to adopt or act on the opinion, 

thus protecting from disclosure opinions that are truly advisory in 

nature. 

The bill also protects the security of classified information. Information that could harm the national security if disclosed publicly 

could be provided to Congress in a classified annex. Classified information involving intelligence activities would be reported to the 

House and Senate Intelligence and Judiciary Committees—or, 

where covert actions are at issue, a more narrow group of senators, 

to parallel the more limited disclosure provisions of the National 

Security Act for information about covert actions. 

Needless to say, the bill does not represent a perfect or complete 

solution to the problem of secret law. For example, it would not 

reach the now-infamous OLC conclusion that the infliction of pain 

does not constitute ‘‘torture’’ unless it approaches the level associated with ‘‘death, organ failure, or serious impairment of body functions’’—an interpretation that effectively exempted the executive 

branch from the full scope of the anti-torture statute. Moreover, 

under the provisions of the bill allowing the Attorney General to 

withhold privileged information, Congress may well be forced to operate under a significant informational handicap. Many believe 

that Congress should have unimpeded access to all significant OLC 

opinions construing federal statutes, and that any claim of executive privilege is counterbalanced by Congress’s need to have this information in order to fulfill its own constitutional responsibilities. 

The goal of this bill, however, is not to address the need for disclosure of OLC opinions generally, but to tackle a particularly problematic category of withholdings. The narrow reporting requirements of this bill reflect that goal, but should not be construed as 

an indication that further reporting is unnecessary or unwarranted. 

Indeed, as Senator Feingold said at the Constitution Subcommittee hearing he chaired: 


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When it comes to the law that governs the executive 

branch’s actions, Congress, the courts, and the public have 

the right and the need to know what law is in effect. An 

Executive that operates pursuant to secret law makes a 

mockery of the democratic principles and freedoms on 

which this country was based. 

II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. INTRODUCTION OF THE BILL

The OLC Reporting Act of 2008, S. 3501, was introduced on September 16, 2008, by Senator Feingold and Senator Feinstein. Representative Brad Miller introduced an identical measure as part of 

a larger bill, H.R. 6929, on September 17, 2008, in the House of 

Representatives. 

B. COMMITTEE CONSIDERATION

On April 30, 2008, Senator Feingold chaired a hearing of the 

Constitution Subcommittee on ‘‘Secret Law and the Threat to 

Democratic and Accountable Government.’’ Testifying at the hearing were John P. Elwood, Deputy Assistant Attorney General for 

the Office of Legal Counsel; Dawn E. Johnsen, Professor at Indiana 

University School of Law—Bloomington and former Acting Assistant Attorney General for the Office of Legal Counsel; Bradford A. 

Berenson, partner at Sidley Austin LLP and former counsel to 

President George W. Bush; J. William Leonard, former Director of 

the Information Security Oversight Office; David Rivkin, partner at 

Baker Hostetler; Heidi Kitrosser, Associate Professor of Law at the 

University of Minnesota Law School; and Steven Aftergood, Director of the Project on Government Secrecy at the Federation of 

American Scientists. In addition to the prepared statements of the 

witnesses, the following materials were submitted for the record: 

May 7, 2008, letter to Senators Feingold and Brownback from Anne 

L. Weismann, Chief Counsel, Citizens for Responsibility and Ethics 

in Washington; May 7, 2008, letter to Senators Feingold and 

Brownback from James P. Harrison, Director, The Identity Project. 

The bill was listed on the Judiciary Committee’s agenda and considered by the Committee on September 25, 2008. Senator Feingold 

provided an overview of the bill and Senator Brownback spoke in 

support of it. The Committee then voted to report S. 3501 favorably, without amendment, by unanimous consent. 

III. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title 

This section provides that the legislation may be cited as the 

‘‘OLC Reporting Act of 2008’’. 

Section 2. Reporting 

This section amends section 530D of title 28, United States Code, 

as follows: 

Subsection (a)(1) is amended to include a new subparagraph (C) 

that requires the Attorney General to submit a report to Congress 

whenever the Department of Justice issues an authoritative legal 

interpretation of any provision of a federal statute that (1) conVerDate Aug 31 2005 00:16 Dec 13, 2008 Jkt 079010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR528.XXX SR528

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cludes that the provision is unconstitutional or would be unconstitutional in a particular application; (2) relies in whole or in part 

on a determination that another interpretation of the provision 

would raise constitutional concerns under Article II of the Constitution or separation of powers principles; (3) relies in whole or in part 

on a legal presumption against applying the provision, whether 

during wartime or otherwise, to the executive branch or any of its 

officers or employees (including the President and members of the 

military); or (4) concludes that the provision has been impliedly superseded or wholly or partially deprived of effect by a later enactment. In accordance with a new paragraph (3) of subsection (b), the 

report must be submitted not later than 30 days after the authoritative legal interpretation is issued. In accordance with a new 

paragraph (3) of subsection (a), the report would be optional, rather 

than mandatory, if the President or other responsible official has 

expressly directed that no action be taken or withheld, or no policy 

implemented or stayed, on the basis of the interpretation. 

The provision of subsection (c)(2)(A) regarding the reporting of 

national security and classified information is amended to require 

that any classified information shall be provided in a classified 

annex, which shall be handled in accordance with the security procedures established under the National Security Act. In addition, 

a new paragraph (4) in subsection (a) specifies that, with respect 

to classified information relating to intelligence activities, the reporting requirement may be satisfied by providing the information 

to the Senate and House Judiciary and Intelligence Committees; 

and that, with respect to certain classified information relating to 

covert actions, the reporting requirement may be satisfied by providing the information to the chairmen and ranking members of 

the Senate and House Judiciary Committees, the chairmen and 

ranking members of the Senate and House Judiciary and Intelligence Committees, the Speaker and minority leader of the House 

of Representatives, and the majority and minority leaders of the 

Senate. 

Subsection (c) is amended to include a new paragraph (2) requiring any report made pursuant to subsection (a)(1)(A), (B), or (C) to 

specify the federal law at issue and the paragraph and the clause 

of subsection (a)(1) that describes the action being reported. This 

information, along with the date of the action being reported, must 

be included in the report and may not be withheld on privilege 

grounds, in accordance with subsection (c)(3)(B). 

Subsection (e) is amended to remove the qualification that section 530D’s reporting requirements apply to the President only 

with respect to the promulgation of unclassified executive orders or 

similar memoranda or orders. Instead, any report that relates to 

classified Presidential orders or memoranda is subject to the 

amended requirements for the handling of classified information. 

IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee sets forth, with respect to the bill, S. 3501, the 

following estimate and comparison prepared by the Director of the 

Congressional Budget Office under section 402 of the Congressional 

Budget Act of 1974: 


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OCTOBER 1, 2008. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 3501, the OLC Reporting 

Act of 2008. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

S. 3501—OLC Reporting Act of 2008 

S. 3501 would require the Office of Legal Counsel (OLC) within 

the Department of Justice, under certain circumstances, to submit 

a report to the Congress when it issues an authoritative legal interpretation that: 

• Determines that a provision of federal law is unconstitutional or raises constitutional concerns under Article II of the 

Constitution or separation of powers principles; 

• Relies on a legal presumption against applying a provision 

of federal law; or 

• Concludes that a provision of federal law has implicitly 

been deprived of effect by a subsequently enacted statute. 

CBO expects that the number of such reports would be relatively 

small, and we estimate that any additional costs to the OLC would 

not be significant. Enacting the bill would not affect direct spending or revenues. 

S. 3501 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Mark Grabowicz. This 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

V. REGULATORY IMPACT EVALUATION

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will 

result from the enactment of S. 3501. 

VI. CONCLUSION

The OLC Reporting Act of 2008, S. 3501, respects the privileges 

and prerogatives of the executive branch while ensuring that Congress has information it needs in order to responsibly fulfill its constitutional duties. Prompt passage and enactment of the bill will 

help to curb secret law and to restore the proper balance of power 

among the branches of government. 

VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 3501, as 

reported, are shown as follows (existing law proposed to be omitted 


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is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

28 U.S.C. 530D 

(a) REPORT.— (1) IN GENERAL.—The Attorney General shall submit to the 

Congress a report of any instance in which the Attorney General or any officer of the Department of Justice— 

(A) establishes or implements a formal or informal policy 

to refrain— 

(i) from enforcing, applying, or administering any 

provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of 

the Attorney General or such officer on the grounds 

that such provision is unconstitutional; or 

(ii) within any judicial jurisdiction of or within the 

United States, from adhering to, enforcing, applying, 

or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or 

superior to those of, that jurisdiction, respecting the 

interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or 

administration is within the responsibility of the Attorney General or such officer; 

(B) determines— 

(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of 

any provision of any Federal statute, rule, regulation, 

program, policy, or other law; or 

(ii) to refrain (on the grounds that the provision is 

unconstitutional) from defending or asserting, in any 

judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, 

rule, regulation, program, policy, or other law, or not 

to appeal or request review of any judicial, administrative, or other determination adversely affecting the 

constitutionality of any such provision; øor¿ 

(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; 


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(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 

(D) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 

1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action— 

(i) against the United States (including any agency 

or instrumentality thereof) for a sum that exceeds, or 

is likely to exceed, $2,000,000, excluding prejudgment 

interest; or 

(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification 

of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term ‘‘injunctive or other nonmonetary relief’’ shall not be understood to include the following, where the same are 

a matter of public record— 

(I) debarments, suspensions, or other exclusions 

from Government contracts or grants; 

(II) mere reporting requirements or agreements 

(including sanctions for failure to report); 

(III) requirements or agreements merely to comply with statutes or regulations; 

(IV) requirements or agreements to surrender 

professional licenses or to cease the practice of 

professions, occupations, or industries; 

(V) any criminal sentence or any requirements 

or agreements to perform community service, to 

serve probation, or to participate in supervised release from detention, confinement, or prison; or 

(VI) agreements to cooperate with the government in investigations or prosecutions (whether or 

not the agreement is a matter of public record). 

(2) SUBMISSION OF REPORT TO THE CONGRESS.—øFor the purposes of paragraph (1)¿Except as provided in paragraph (4), a 


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report shall be considered to be submitted to the Congress for 

the purposes of paragraph (1) if the report is submitted to— 

(A) the majority leader and minority leader of the Senate; 

(B) the Speaker, majority leader, and minority leader of 

the House of Representatives; 

(C) the chairman and ranking minority member of the 

Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of 

the Committee on the Judiciary of the Senate; and 

(D) the Senate Legal Counsel and the General Counsel 

of the House of Representatives. 

(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 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 subparagraph 

(1) if— 

(i) the unclassified portion of the report is submitted 

to each officer specified in subparagraph (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 subparagraph (1) if— 

(I) the unclassified portion of the report is submitted to each officer specified in subparagraph 

(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; 


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(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 this information described in 

subclause (I) to meet extraordinary circumstances 

affecting vital interests of the United States. 

(b) DEADLINE.—A report shall be submitted— 

(1) under subsection (a)(1)(A), not later than 30 days after 

the establishment or implementation of each policy; 

(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to 

take action, separately or jointly, to intervene in timely fashion 

in the proceeding, but in no event later than 30 days after the 

making of each determination; and 

(3) under subsection (a)(1)(C)— 

(A) not later than 30 days after the Attorney General, the 

Office of Legal Counsel, or any other officer of the Department of Justice issues the authoritative 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 issues a directive described in subsection (a)(3) and that directive is subsequently rescinded, 

not later than 30 days after the President or other responsible officer rescinds that directive; and 

(4) under subsection (a)(1)(D), not later than 30 days after 

the conclusion of each fiscal-year quarter, with respect to all 

approvals occurring in such quarter. 

(c) CONTENTS.—A report required by subsection (a) shall— 

(1) specify the date of the establishment or implementation 

of the policy described in subsection (a)(1)(A), of the making of 

the determination described in subsection (a)(1)(B), of the 

issuance of the authoritative legal interpretation described in 

subsection (a)(1)(C), or of each approval described in subsection 

(a)(1)øC¿(D); 


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13 

(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; 

(3) include a complete and detailed statement of the relevant 

issues and background (including a complete and detailed 

statement of the reasons for the policy, authoritative legal interpretation, or determination, and the identity of the officer 

responsible for establishing or implementing such policy, 

issuing such authoritative legal interpretation, making such determination, or approving such settlement or compromise), øexcept¿ provided that— 

(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)); 

(B) except for information described in paragraphs (1) 

and (2), such details may be omitted as may be absolutely 

necessary to prevent improper disclosure of ønationalsecurity- or classified information, or any¿ information 

subject to the deliberative-process-, executive-, attorneywork-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 

6103 of the Internal Revenue Code of 1986, or other ølaw¿ 

statute or any court order if the fact of each such omission 

(and the precise ground or grounds therefor) is clearly 

noted in the statement: Provided, That this subparagraph 

shall not be construed to deny to the Congress (including 

any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may 

seek, subsequent to the submission of the report; and— 

ø(B)¿ (C) the requirements of this paragraph shall be 

deemed satisfied— 

(i) in the case of an authoritative interpretation described in subsection (a)(1)(C), if a copy of the Office of 

Legal Counsel or other legal opinion setting forth the 

interpretation is provided; 

(ii) in the case of an approval described in subsection 

(a)(1)øC¿(D)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) 

is provided, along with a statement indicating the 

legal and factual basis or bases for the settlement or 

compromise (if not apparent on the face of documents 

provided); and 

ø(ii)¿ (iii) in the case of an approval described in 

subsection (a)(1)øC¿(D)(ii), if an unredacted copy of 

the entire settlement agreement and consent decree or 

order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if 

not apparent on the face of documents provided); and 

(3) in the case of a determination described in subsection 

(a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of 

the proceeding, suit, or action. 


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14 

(d) DECLARATION.—In the case of a determination described in 

subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of 

the provision involved is the position of the executive branch of the 

Federal Government (or, as applicable, of the President or of any 

executive agency or military department). 

(e) APPLICABILITY TO THE PRESIDENT AND TO EXECUTIVE AGEN- CIES AND MILITARY DEPARTMENTS.—The reporting, declaration, and 

other provisions of this section relating to the Attorney General 

and other officers of the Department of Justice shall apply to the 

President ø(but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order),¿; to 

the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States 

Code) that establishes or implements a policy described in subsection (a)(1)(A), issues an authoritative legal interpretation described in subsection (a)(1)(C), or is authorized to conduct 

litigationø,¿; and to the officers of such executive agency. 

Æ 


wwoods2 on PRODPC68 with REPORTS