As we have noted, in the final weeks of the Bush Administration the Office of Legal Counsel released a number of opinions, both memoranda and letters, that had not previously been publicly disclosed, although some had been shared with the Congress. Propublica and the ACLU are both monitoring a rather long list of as-yet-undisclosed memos.
The recent disclosures have not entirely satisfied some members of Congress. Representative Brad Miller (D-NC) has introduced H. 278, “The OLC Reporting Act of 2009.” The bill, which is substantively the same as S3501 introduced by Senator Feingold in the 110th Congress, would require the Attorney General to notify Congress anytime DOJ issued an “authoritative interpretation” of a statute that concluded it was unconstitutional in any particular application; that employed the canon of interpreting statutes to avoid constitutional concerns for reasons of separation of powers or intruding into the President’s powers; that relied upon a legal presumption against applying it to any actors in or actions of the executive branch; or that concluded part of the statute had been superseded by implication by a later enacted statute.
Each of these techniques of legal interpretation figured prominently in the legal analysis of significant opinions issued by the Office of Legal Counsel during the Bush Administration. They each have the result of changing the effective coverage of a piece of legislation enacted by the Congress. A dramatic example: in the White Paper the Department of Justice released to explain why the Foreign Intelligence Surveillance Act did not prevent the President from authorizing warrantless surveillance, the Justice Department relied in part on the argument that the FISA had been impliedly repealed by the Authorization on the Use of Military Force. This was a particularly weak argument – it stretched the doctrine of implied repeal quite far – but the relevant point here is that had Congress known about this interpretation and thought it wrong, it could have enacted language making clear that it intended no implied repeal when it enacted the AUMF. But it did not know, and may never have known except that the New York Times story exposed the NSA program, and that compelled the administration to issue the White Paper defending it. Congress cannot exercise its governance responsibilities in regards to a problem if they don’t know the problem exists. The Reporting Act is aimed at surfacing similar legal interpretations in the future.
In one of the recently released OLC opinions, the Office of Legal Counsel concludes that the 2008 version of the OLC Reporting Act is unconstitutional. Stay tuned for more discussion of this – and watch for questioning about it at Dawn Johnsen’s confirmation hearings as incoming head of OLC. She helped write the Reporting Act.