[国会记录:2008年9月16日(参议院)][第S8858-S8862页]范戈尔德先生(为他本人和范士丹夫人)提出的法案和联合决议声明:S. 3501。一项确保当司法部确定行政部门不受法律约束时通知国会的法案;向司法机构委员会提交。法因戈尔德先生。总统先生，今天我要和来自加州的资深参议员范斯坦一起，介绍2008年的《自由劳工委员会报告法》。简而言之，该法案将要求司法部长在司法部发布法律意见认为行政部门不受法规约束时向国会报告。金博宝正规网址以及2008年的行政命令完整性法案，我介绍了在7月与来自Rhode Island的初级参议员，参议员Whitehouse，该法案对遏制行政部门依赖秘密法律进行了重要一步。这项法案背后的原则很简单。这是民主政府的基本宗旨，人们有权了解法律。“秘密法”的概念已经在法庭的意见和法律论文中描述为“厌恶”和“憎恶”。这就是为什么国会通过的法律历来一直是公共纪录的重要事项。但在这个国家适用的法律包括不仅仅是法规。它包括法规，控制行政部门和法院的法律解释以及某些总统指令。正如我们在司法委员会宪法委员会的听证会上所学到的，我在4月份担任担任主席的小组委员会，这位行政和司法法的机构越来越多地被公众秘密，而且经常来自国会。也许最近秘密法律的最新例子是由Doj的法律顾问办公室建造的精心制定的法律制度，以证明在法定法框架之外运作的有争议的行政政策。由OLC发布的意见不仅仅是一项法律咨询，例如咨询个人或公司可能征求律师。OLC意见绑定整个行政部门，就像法院的统治一样。 If a court were to reach a different interpretation than OLC, the court's interpretation would prevail--but many OLC opinions address matters that courts never have the chance to decide. On those matters, OLC essentially steps into the role of the courts as 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.'' OLC opinions 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. Thus, even if a court overturns OLC's interpretation, the opinion may grant retroactive immunity for past violations of the law--effectively amending the law that existed at the time of the criminal act. 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: the conclusion that various laws enacted by Congress do not apply to the conduct of the executive branch. The 2003 Yoo torture memo took the alarming position that the executive branch was not bound by the criminal statute prohibiting torture when interrogating detainees. Likewise, according to congressional testimony of former OLC head Steve Bradbury, 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 Yoo memo strongly suggest that other statutory constraints have been disposed of 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, as well as final OLC opinions that are not adopted as the basis for an executive branch policy. But once a final OLC opinion is issued and adopted by an executive [[Page S8860]] branch agency or official, that opinion is no longer mere legal advice or a deliberative document--it is effectively the law. Indeed, in his testimony before the Constitution Subcommittee in April, the Deputy Assistant Attorney General for OLC acknowledged 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 Supreme Court expressed the same sentiment in legal terms, holding 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.'' 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, and there is truly a separate--and sometimes conflicting--regime of secret law. Moreover, Congress has an obvious institutional 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 this position, or it may decide to simply 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 this 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 the statute is 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 the hearing I chaired on secret law, Dawn Johnsen, who served as the head of OLC for 2 years under President Clinton, testified that the law should be amended to require reporting to Congress in these situations as well. Bradford Berenson, former counsel to President Bush from 2001-2003, agreed with this modest proposal. The bill that Senator Feinstein and I are introducing today grew out of this bipartisan agreement. It was drafted with the substantial assistance and input of Johnsen, Berenson, and an impressive group of some of the finest attorneys to serve in OLC in past years, many of whom are now constitutional scholars. The aim was to craft a targeted bill--one that would allow Congress to be sufficiently informed when OLC purports to release the executive branch from the strictures of a statute, without encroaching on the institutional interests, prerogatives, and privileges of OLC. We took great pains to ensure that an appropriate balance of power was maintained between the legislative and executive branches. The result is an approach that is narrowly tailored and eminently reasonable. 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. These circumstances represent the means by which OLC is most likely to exempt the executive branch from the reach of a statute, in those areas where Congress has the greatest interest in knowing about it. 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. 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, if DOJ determines that applying a statute to executive branch officials would raise constitutional problems. 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 about. Third, a report is required if DOJ relies on a ``legal presumption'' against applying a statute to the executive branch. For example, the 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'' 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 expressly say so. 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 would 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 which of the four reporting categories the opinion falls within. 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 only to the Intelligence and Judiciary Committees--or, under appropriate circumstances, a more narrow ``Gang of Twelve,'' to parallel the more limited disclosure provisions of the National Security Act. The bill's targeted focus and careful preservation of executive prerogatives has earned it the support of former officials from both the Clinton and Bush Administrations. Former head of OLC, Dawn Johnsen, and former counsel to President Bush, Bradford Berenson, have written a joint letter endorsing the bill. In their words: ``[W]e believe [the bill] strikes a sensible and constitutionally sound accommodation between the executive branch's need to have candid legal advice, to protect national security information, and to avoid being overburdened by overly intrusive reporting requirements and the legislative branch's need to know the manner in which its laws are interpreted.'' They write that enacting this bill ``would have the effect of enhancing democratic accountability and the rule of law.'' I ask unanimous consent to place this letter in the record along with my statement. Of course, 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 [[Page S8861]] well be forced to operate under a significant informational handicap. Nonetheless, the bill represents an important and necessary step toward curbing secret law and restoring the proper balance of power between the executive and legislative branches. When OLC concludes that a statute passed by Congress does not bind the executive branch, Congress has a right to know that the executive branch is not operating under that statute, and to be apprised of the law under which the executive branch is operating. The bill I am introducing with Senator Feinstein codifies that right. I urge all of my colleagues in the Senate to support this common-sense measure. Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: S. 3501 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``OLC Reporting Act of 2008''. SEC. 2. REPORTING. Section 530D of title 28, United States Code, is amended-- (1) in subsection (a)-- (A) in paragraph (1)-- (i) in subparagraph (B), by striking ``or'' at the end; (ii) by redesignating subparagraph (C) as subparagraph (D); and (iii) by inserting after subparagraph (B) the following: ``(C) except as provided in paragraph (3), issues an authoritative legal interpretation (including an interpretation under section 511, 512, or 513 by the Attorney General or by an officer, employee, or agency of the Department of Justice pursuant to a delegation of authority under section 510) of any provision of any Federal statute-- ``(i) that concludes that the provision is unconstitutional or would be unconstitutional in a particular application; ``(ii) that relies for the conclusion of the authoritative legal interpretation, in whole or in the alternative, on a determination that an interpretation of the provision other than the authoritative legal interpretation would raise constitutional concerns under article II of the Constitution of the United States or separation of powers principles; ``(iii) that relies for the conclusion of the authoritative legal interpretation, in whole or in the alternative, on a legal presumption against applying the provision, whether during a war or otherwise, to-- ``(I) any department or agency established in the executive branch of the Federal Government, including the Executive Office of the President and the military departments (as defined in section 101(8) of title 10); or ``(II) any officer, employee, or member of any department or agency established in the executive branch of the Federal Government, including the President and any member of the Armed Forces; or ``(iv) that concludes the provision has been superseded or deprived of effect in whole or in part by a subsequently enacted statute where there is no express statutory language stating an intent to supersede the prior provision or deprive it of effect; or''; (B) in paragraph (2), by striking ``For the purposes'' and all that follows through ``if the report'' and inserting ``Except as provided in paragraph (4), a report shall be considered to be submitted to the Congress for the purposes of paragraph (1) if the report''; and (C) by adding at the end the following: ``(3) Direction regarding interpretation.--The submission of a report to Congress based on the issuance of an authoritative legal interpretation described in paragraph (1)(C) shall be discretionary on the part of the Attorney General or an officer described in subsection (e) if-- ``(A) the President or other responsible officer of a department or agency established in the executive branch of the Federal Government, including the Executive Office of the President and the military departments (as defined in section 101(8) of title 10), expressly directs that no action be taken or withheld or policy implemented or stayed on the basis of the authoritative legal interpretation; and ``(B) the directive described in subparagraph (A) is in effect. ``(4) Classified information.-- ``(A) Submission of report containing classified information regarding intelligence activities.--Except as provided in subparagraph (B), if the Attorney General submits a report relating to an instance described in paragraph (1) that includes a classified annex containing information relating to intelligence activities, the report shall be considered to be submitted to the Congress for the purposes of paragraph (1) if-- ``(i) the unclassified portion of the report is submitted to each officer specified in paragraph (2); and ``(ii) the classified annex is submitted to the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives. ``(B) Submission of report containing certain classified information about covert actions.-- ``(i) In general.--In a circumstance described in clause (ii), a report described in that clause shall be considered to be submitted to the Congress for the purposes of paragraph (1) if-- ``(I) the unclassified portion of the report is submitted to each officer specified in paragraph (2); and ``(II) the classified annex is submitted to-- ``(aa) the chairman and ranking minority member of the Select Committee on Intelligence of the Senate; ``(bb) the chairman and ranking minority member of the Committee on the Judiciary of the Senate; ``(cc) the chairman and ranking minority member of the Permanent Select Committee on Intelligence of the House of Representatives; ``(dd) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives; ``(ee) the Speaker and minority leader of the House of Representatives; and ``(ff) the majority leader and minority leader of the Senate. ``(ii) Circumstances.--A circumstance described in this clause is a circumstance in which-- ``(I) the Attorney General submits a report relating to an instance described in paragraph (1) that includes a classified annex containing information relating to a Presidential finding described in section 503(a) of the National Security Act of 1947 (50 U.S.C. 413b(a)); and ``(II) the President determines that it is essential to limit access to the information described in subclause (I) to meet extraordinary circumstances affecting vital interests of the United States.''; (2) in subsection (b)-- (A) in paragraph (2), by striking ``and'' at the end; (B) by redesignating paragraph (3) as paragraph (4); (C) by inserting after paragraph (2) the following: ``(3) under subsection (a)(1)(C)-- ``(A) not later than 30 days after the date on which the Attorney General, the Office of Legal Counsel, or any other officer of the Department of Justice issues the authoritative legal interpretation of the Federal statutory provision; or ``(B) if the President or other responsible officer of a department or agency established in the executive branch of the Federal Government, including the Executive Office of the President and the military departments (as defined in section 101(8) of title 10), issues a directive described in subsection (a)(3) and the directive is subsequently rescinded, not later than 30 days after the date on which the President or other responsible officer rescinds that directive; and''; and (D) in paragraph (4), as so redesignated, by striking ``subsection (a)(1)(C)'' and inserting ``subsection (a)(1)(D)''; (3) in subsection (c)-- (A) in paragraph (1), by striking ``or of each approval described in subsection (a)(1)(C)'' and inserting ``of the issuance of the authoritative legal interpretation described in subsection (a)(1)(C), or of each approval described in subsection (a)(1)(D)''; (B) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; (C) by inserting after paragraph (1) the following: ``(2) with respect to a report required under subparagraph (A), (B), or (C) of subsection (a)(1), specify the Federal statute, rule, regulation, program, policy, or other law at issue, and the paragraph and clause of subsection (a)(1) that describes the action of the Attorney General or other officer of the Department of Justice;''; (D) in paragraph (3), as so redesignated-- (i) by striking ``reasons for the policy or determination'' and inserting ``reasons for the policy, authoritative legal interpretation, or determination''; (ii) by inserting ``issuing such authoritative legal interpretation,'' after ``or implementing such policy,''; (iii) by striking ``except that'' and inserting ``provided that''; (iv) by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (C), respectively; (v) by inserting before subparagraph (B), as so redesignated, the following: ``(A) any classified information shall be provided in a classified annex, which shall be handled in accordance with the security procedures established under section 501(d) of the National Security Act of 1947 (50 U.S.C. 413(d));''; (vi) in subparagraph (B), as so redesignated-- (I) by inserting ``except for information described in paragraph (1) or (2),'' before ``such details may be omitted''; (II) by striking ``national-security- or classified information, of any''; and (III) by striking ``or other law'' and inserting ``or other statute''; (vii) in subparagraph (C), as so redesignated-- (I) by redesignating clauses (i) and (ii) as clauses (ii) and (iii), respectively; (II) by inserting before clause (ii), as so redesignated, the following: ``(i) in the case of an authoritative legal interpretation described in subsection (a)(1)(C), if a copy of the Office of Legal Counsel or [[Page S8862]] other legal opinion setting forth the authoritative legal interpretation is provided;''; (III) in clause (ii), as so redesignated, by striking ``subsection (a)(1)(C)(i)'' and inserting ``subsection (a)(1)(D)(i)''; and (IV) in clause (iii), as so redesignated, by striking ``subsection (a)(1)(C)(ii)'' and inserting ``subsection (a)(1)(D)(ii)''; and (E) in paragraph (4), as so redesignated, by striking ``subsection (a)(1)(C)(i)'' and inserting ``subsection (a)(1)(D)(i)''; and (4) in subsection (e)-- (A) by striking ``(but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order)''; and (B) by inserting ``issues an authoritative interpretation described in subsection (a)(1)(C),'' after ``policy described in subsection (a)(1)(A),''. ____ September 15, 2008. Hon. Patrick Leahy, Chairman, Senate Committee on the Judiciary, U.S. Senate, Washington DC. Hon. Arlen Specter, U.S. Senate, Washington DC. Dear Chairman Leahy and Senator Specter: We write to convey our strong support for ``The OLC Reporting Act of 2008,'' to be introduced by Senator Feingold and Senator Feinstein. We respectfully urge the committee to give the bill prompt and serious consideration, because we believe that the addition of the reporting requirement it would create would have the effect of enhancing democratic accountability and the rule of law. We both had the privilege to testify before Senators Feingold and Brownback, and the Subcommittee on the Constitution of the Senate Committee on the Judiciary, on April 30, 2008 in a hearing that examined ``Secret Law and the Threat to Democratic and Accountable Government.'' We served in different administrations, Brad Berenson as Associate Counsel to President George W. Bush and Dawn Johnsen as Acting Assistant Attorney General for the Office of Legal Counsel (OLC) under President Clinton. During our testimony, we found ourselves in substantial agreement about the desirability for new legislation that would require reporting to Congress regarding a limited category of OLC legal opinions. As a general matter, we share a deep concern about safeguarding the legitimate need for confidentiality in the legal advice OLC provides to the President and others in the executive branch, by power delegated by the Attorney General. For example, in some instances national security information must be protected. In other instances, such as where OLC advises that a proposed action would be illegal, and that advice is accepted, the prospect of immediate and routine disclosure could deter executive branch officials from seeking advice in the first place. We agree, however, that Congress has a legitimate legislative interest in receiving broader notice than current law provides with respect to certain categories of OLC opinions, which can generally be described as those in which OLC relies on constitutionally based interpretive doctrines to interpret a law in a way that might come as a surprise to Congress. These include the doctrine of ``constitutional avoidance,'' as well as implied repeals or modifications and certain presumptions against applying statutes to the executive branch officials. In our view, OLC opinions that place substantial reliance on such doctrines present the greatest potential for overreaching by the executive branch and thus the greatest need for notification to Congress. If Congress does not know about these interpretations, Congress is unable to consider the possibility of legislative change or clarification. For this reason, after the hearing we worked closely with Senate staff as well as with a group of other former executive branch officials and Office of Legal Counsel lawyers to help draft ``The OLC Reporting Act of 2008.'' The resulting bill text was the product of careful consideration and negotiation. The bill mandates reporting in a carefully defined category of cases and includes appropriate provisions to protect national security and privileged information. All in all, we believe it strikes a sensible and constitutionally sound balance between the executive branch's need to have access to candid legal advice, to protect national security information, and to avoid being overburdened by unduly intrusive reporting requirements and the legislative branch's need to know the manner in which its laws are interpreted. We both endorse the bill as introduced and urge its prompt enactment. Sincerely, Brad Berenson, Sidley Austin. Dawn Johnsen, Indiana University School of Law. ____________________