NEW YORK - October 15 - Today, the Brennan Center for Justice is filing a federal lawsuit to compel release of a long-suppressed Bush-era legal opinion; the opinion in question purportedly acknowledges that a federal law -- which requires organizations receiving federal grants for HIV/AIDS work to pledge opposition to  prostitution -- may be unconstitutional.  

The opinion was drafted in 2004 by the Office of Legal Counsel (OLC) housed within the Department of Justice (DOJ).

The "pledge requirement" (22 U.S.C. § 7631(f)) requires organizations to vow opposition to prostitution.  The nonprofit community opposes the law because it hampers their HIV/AIDS prevention work with prostitutes and others vulnerable to the pandemic. 

"This couldn't be more relevant," said Rebekah Diller, Deputy Director of the Brennan Center's Justice Program.  "The Department of Health and Human Services (HHS) is currently deciding how to enforce the pledge requirement. If it is unconstitutional, this would moot this question and leave HHS with more time in which to do their important health care work."

The opinion sought in today's Freedom of Information Act (FOIA) request was issued in February 2004 but was not publically disclosed. It purportedly states that the Constitution bars federal agencies from enforcing the pledge requirement against U.S. organizations.  In September 2004, OLC withdrew that opinion in a letter that said "reasonable arguments" support the statute's constitutionality. 

The impetus for the FOIA request was a lawsuit, Alliance for Open Society International v. USAID, that challenged the statute. The Judge in that case enjoined enforcement against most U.S. organizations pending a final ruling in the case.

"Release of any document that indicates the Bush Justice Department viewed the pledge requirement as unconstitutional would further illuminate the role political pressure played in OLC's September 2004 letter and in other legally questionable OLC memos, including those on torture and rendition. Together, these documents provide a jarring insight into the way the Bush Justice Department bent the rule of law for ideological reasons," said Laura Abel, Deputy Director of the Brennan Center's Justice Program.

In 2005, the Brennan Center requested the undisclosed opinion from DOJ, HHS and the U.S. Agency for International Development (USAID). The agencies repeatedly denied these requests, citing the "deliberative process privilege" -- which sometimes protects documents containing an agency's internal communications. 

The Brennan Center complaint shows that this privilege is inapplicable here, because HHS and USAID acknowledged reliance on the undisclosed opinion when they refrained from enforcing the pledge requirement against U.S. nonprofits in 2004 and 2005. 

For more information, or to arrange an interview with Rebekah Diller or Laura Abel, please contact Jeanine Plant-Chirlin at 212-998-6289 or Jeanine.plant-chirlin@nyu.edu. 

Download pdf of FOIA filing.