New Opinions From the Office of Legal Counsel:

Busy day at the Office of Legal Counsel today, wholly apart from the headlines about the (finalized but still unpublished) report by the Office of Professional Responsibility blogged earlier today by Jonathan Adler. Today, the Office of Legal Counsel published a whole mess o' opinions and two memoranda withdrawing five Bush-era interrogation opinions. Previously (on April 16), Attorney General Holder released a statement saying that OLC had withdrawn four Bush-era interrogation opinions; today, OLC published the April 15, 2009 memo in which the four opinions actually were withdrawn, plus a June 11, 2009 memo withdrawing a fifth opinion.

OLC also published ten opinions today, four of them signed during the current Administration (one of them involving the Ronald Reagan Centennial Commission Act of 2009, which was the subject of an Obama signing statement); five signed during the Bush Administration (including one by yours truly concerning the legality of public relations activity undertaken by a former official on behalf of a foreign government); and one from the Clinton Administration.

A couple of observations are in order. First, OLC is to be commended for the speed with which it got the current Administration's opinions onto the website. In each instance, it took just a few months (sometimes less than two), which is breakneck speed for the publication process, historically speaking. Because there is a fairly extensive publication review process, and because affected units of the government traditionally have been asked to comment on OLC's publication decisions (and such requests for comment sometimes slide to the bottom of recipients' in boxes), opinions routinely take (took?) a year or more to be published. The OLC memo outlining the publication process, as well as the OLC opinion-writing process, is available here.

The Bush Administration's OLC was criticized for delays in publication, but there also were significant delays under the Clinton Administration (more on which later), although I should emphasize, both could get opinions into publication quickly when the process worked smoothly. (If you go to the "What's New" page at OLC, you can see the dates that published opinions were signed back to the beginning of 2006, and frequently, the delay was fairly brief — days or weeks — although typically, it was much longer.) I understand that, before the advent of the Internet, opinions were typically published en masse at the end of an Administration.

Second, the current leadership of OLC criticized the Bush OLC for its publication practices, so it may well be that the speedy publication witnessed today is a sign of things to come. But today's releases aren't definitive on that score. Three of the four Obama Administration opinions are on subjects that suggest they were singled out for expedited treatment — they involve the constitutionality of legislation, and DOJ understandably may wish to publish such opinions promptly to make the legal basis for its views known. The fourth opinion, however, involves the eligibility of a retired military officer for appointment as NASA Administrator, which, I gotta say, doesn't scream that it was singled out for expedited publication. It may be that Senate committee with jurisdiction raised questions about the legality of the appointment, arguing the nominee was ineligible, and the opinion was meant to persuade the Committee of the nominee's eligibility. If so, the decision about releasing the opinion outside the Executive Branch (to Congress) would already have been made, and publication would come quickly after that. Under similar circumstances in the past, OLC has published opinions in a matter of a few months. But, in any event, if OLC does make a regular practice of publishing opinions this quickly, it will have set a new standard for timely publication that should be emulated by future officials.

Third, if OLC succeeds in keeping up this pace of publications, it may raise the question whether OLC is still soliciting comments from interested agencies; or (more likely) whether it has set a very short deadline for comment and made clear that a failure to object promptly will be viewed as consent to publication.

Finally, one of the opinions, concerning the census, was signed in May 1999, more than a year before President Clinton left office. This demonstrates that delays in publication are nothing new, since the Clinton Administration did not manage to publish the opinion during the 20 months remaining in the second term. I don't know why the opinion wasn't published during the first Bush (43) Administration. The decision to publish it now, after such a long delay, certainly suggests that there is some special reason for doing so at this particular time, and one obvious reason suggests itself: the impending decennial census. The opinion concludes that section 642(a) of the inelegantly named Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which concerns the authority of federal, state, and local government officials to disclose to the INS (now ICE) information regarding an individual's citizenship or immigration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the disclosure of covered census information by census officials.

The opinions, and the memoranda withdrawing the interrogation opinions, are available here.


Another OLC Opinion Published:

The Justice Department's Office of Legal Counsel released another opinion today/yesterday (depending on what time zone you're in). Its subject matter is a real bread-and-butter OLC issue, and thus characteristically (to use a term that has fallen into regrettable desuetude since I was a kid) "dullsville." To paraphrase the opinion, it presents the question whether "[t]he Small Business Act . . . compel[s] the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program"--in other words, whether "contracting officers must set aside federal contracts to qualified HUBZone small businesses . . . before they can set aside such contracts for award to small businesses under the 8(a) or SDVO Programs."

For those of you who have not fallen into a stupor or lapsed into hysterical blindness as a result of reading the issue, the reason this is of interest is that the SBA regulations indicate that it has the discretion to award set-asides under 8(a) or SDVO before HUBZone. And the Government Accountability Office, an agency of Congress, has concluded that "the [Small Business] Act mandates that priority be given to the HUBZone Program when certain statutory conditions are met." (The Ninth Circuit has expressed a view of the relevant language similar to GAO's, based on the characterization of the HUBZone language as "mandatory" and the language of the other programs as "discretionary." See Contract Mgmt., Inc. v. Rumsfeld, 434 F.3d 1145, 1149 (9th Cir. 2006).)

In an opinion signed on August 21 and published today/yesterday, OLC concludes that the statute is ambiguous, and thus the SBA has discretion under Chevron to interpret the Act as its regulations have. The opinion concludes by saying that "Our conclusion . . . is binding on all Executive Branch agencies, notwithstanding any GAO decisions to the contrary." It is the longstanding view of OLC that it, and not GAO (which is, after all, a legislative entity), provides authoritative legal interpretation for the Executive Branch, and the new opinion duly underscores that point by citing precedents from each of the past three presidential administrations for that proposition. That won't cut any ice on the Hill if the relevant committee chairs are inclined to agree with the GAO, but perhaps the volume of any disagreement will be muted since the relevant personae are all from the same political party.

Following up on my post last week, today's opinion is another in a line of decisions published very promptly after signing, although there is an obvious reason for prompt publication here. The SBA undoubtedly has been feeling increasingly uncomfortable with the GAO opinions out there (the most recent one was handed down in May 2009), and I'm sure it was eager to be able to point to a published OLC opinion that validates the reasoning of its regulations.


OLC Opinion in the News:

Charlie Savage has an article in the New York Times today about an OLC opinion released in late August addressing the constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act. The opinion concluded that the provision unconstitutionally infringes the President's foreign affairs powers and thus the President can disregard it. Savage writes:

The Justice Department has declared that President Obama can disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.

Based on that decision, which echoes Bush administration policy, the Obama administration sent State Department officials to the board meetings of the United Nations’ Development Program and Population Fund in late spring and this month, a department spokesman said. The bodies are presided over by Iran, which is on the department’s terror list, along with Cuba, Sudan and Syria.

The article quotes an occasional Conspirator (uh, me).

The opinion supported one of President Obama's signing statements. It read, in relevant part:

Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.


Two More OLC Opinions Published:

I spent the weekend in idyllic Orkney Springs, VA. After I left on Friday, the Office of Legal Counsel released two more opinions, both concerning "Einstein 2.0," which sounds a little like a kid movie sequel ("Beethoven's 2d," anyone?), but actually is a cybersecurity initiative used to protect civilian unclassified networks in the Executive Branch against malicious network activity.

The first opinion is a 35 pager signed during the waning days of the Bush Administration, which concludes that Einstein 2.0 complies with the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, FISA, the Stored Communications Act, and the pen register and trap and trace provisions of the U.S. Code, provided that log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by agencies using the system.

The second opinion, which is much shorter (just a hair over 5 pages), was signed August 14, 2009. It states that "[w]e have reviewed that opinion and agree that the operation of the EINSTEIN 2.0 program complies with" those provisions, which I guess isn't to be assumed nowadays, and also goes on to conclude that operation of Einstein does not run afoul of state wiretapping or communications privacy laws. Most of the opinion discusses the reasonable expectations of privacy of system users.

Publication of the August 14 opinion is the best indication yet that the current OLC is making it a priority to quickly publish those opinions it intends to publish.

The opinions received some press coverage. The most in-depth article was in the Washington Post.