FEINGOLD, MILLER WORK TO CURB SECRET LAW Legislation Would Require Attorney General to Report to Congress When the Office of Legal Counsel Says the Executive Is Not Bound by the Law September 17, 2008 Washington, D.C. – U.S. Senator Russ Feingold (D-WI) and U.S. Representative Brad Miller (D-NC) have introduced bills in their respective chambers to curb “secret law” by requiring the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a federal statute. The OLC Reporting Act of 2008 responds to the Bush Administration’s practice of relying on secret legal opinions written by the Justice Department’s Office of Legal Counsel (OLC) to justify ignoring the laws passed by Congress. These opinions, such as the March 2003 John Yoo memo justifying the use of torture, have the force of law within the executive branch. “This administration has used OLC opinions to develop a secret set of binding rules that fly in the face of laws passed by Congress on matters ranging from torture to warrantless wiretapping,” Feingold said. “By hiding these opinions from view, the administration prevents Congress from restoring the rule of law through oversight or legislation. This bill represents an important step toward curbing secret law and restoring the balance of power between the White House and Congress.” “We can’t allow another administration to operate in secret the way the Bush Administration has,” Rep. Miller said. “Democracy dies behind closed doors and Congress must throw the doors open and keep them open. The Constitution gives Congress the duty to check the President’s use of power, and we can’t check what we don’t know about.” Current law requires the Attorney General to report to Congress when the Justice Department decides not to enforce or defend a federal statute. But a loophole in that law allows the Justice Department to secretly depart from the terms of a statute under the guise of interpreting it. At a hearing of the Constitution Subcommittee of the Senate Judiciary Committee on the topic of “secret law” chaired by Feingold on April 30, 2008, Dawn Johnsen, a former Clinton official, and Bradford Berenson, a former counsel to President George W. Bush, agreed that Congress should close that loophole. In a letter to the Senate Judiciary Committee leadership, Johnsen and Berenson endorsed the OLC Reporting Act, which they helped draft, writing that it would “have the effect of enhancing democratic accountability and the rule of law.” The letter states: “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.” The OLC Reporting Act would: Require the Attorney General to notify Congress within 30 days when the Justice Department issues a legal opinion that: concludes that a federal statute is unconstitutional; relies on the “doctrine of constitutional avoidance,” a doctrine used by Yoo and his colleagues to justify strained interpretations of the law; relies on other interpretive tools to avoid applying the law to the executive branch; or decides that a federal law has been repealed by a later statute, when the later statute does not say so explicitly. Retain existing statutory protections for privileged information, while ensuring that Congress receives the information necessary to perform its legislative and oversight functions. Protect national security through special procedures for the submission of classified information.

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