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[Senate Report 110-528]
[From the U.S. Government Publishing Office]

                                                      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.
    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.''
---------------------------------------------------------------------------
    \1\Torres 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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\Jack Goldsmith, The Terror Presidency 36 (2007).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\Oversight 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 . . . .'').
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \4\National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 
132 (1975).
    \5\See 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).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \6\Johnsen and Berenson's joint letter in support of the bill 
appears at the end of this report.
---------------------------------------------------------------------------
    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 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. Sec. 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:

          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) concludes 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:

                                                   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 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; [or]
                  (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
                  (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.--[For the 
        purposes of paragraph (1)]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 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;
                                          (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)[C](D);
          (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), [except] 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 [national-
                security- or classified information, or any] 
                information subject to the deliberative-
                process-, executive-, attorney- work-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 [law] 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--
                  [(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)[C](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
                          [(ii)] (iii) in the case of an 
                        approval described in subsection 
                        (a)(1)[C](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.
    (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 
Agencies 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 [(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 litigation[,]; and to 
the officers of such executive agency.

                                  
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